ACNR Resources, Inc. v. Timothy M. Price

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
ACNR RESOURCES, INC., December 6, 2024
Employer Below, Petitioner ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
v.) No. 24-ICA-204 (JCN: 2023003682)

TIMOTHY M. PRICE,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner ACNR Resources, Inc. (“ACNR”) appeals the April 19, 2024, order of
the Workers’ Compensation Board of Review (“Board”). Respondent Timothy M. Price
timely filed a response.1 ACNR did not reply. The issue on appeal is whether the Board
erred in reversing the claim administrator’s orders, which: (1) denied the conditions of
sprain of medial collateral ligament of the right knee and derangement of the posterior horn
with meniscus tear of the right knee, (2) denied authorization for physical therapy of the
right knee and Orthovisc injections, and (3) denied reopening of the claim for temporary
total disability (“TTD”) benefits.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

On August 18, 2022, Mr. Price completed an Employees’ and Physicians’ Report
of Occupational Injury or Disease, in which he stated that he injured his right knee on
August 17, 2022, when he fell while attempting to avoid a pressurized water hose. The
physician’s section of the report was completed by personnel at Manchin Clinic and
indicated that Mr. Price sustained an injury to his right knee as a direct result of an
occupational injury. On the same date, Mr. Price was seen by John Manchin, II, D.O., and
reported swelling and pain more on the medial side of the left knee. Dr. Manchin noted
decreased range of motion with flexion and extension and assessed right knee internal
derangement.

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ACNR is represented by Aimee M. Stern, Esq. Mr. Price is represented by J.
Thomas Greene, Jr., Esq., and T. Colin Greene, Esq.

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On September 8, 2022, the claim administrator issued an order which held the claim
compensable for sprain of the right knee. The claim administrator stated that Mr. Price was
eligible for TTD benefits from August 18, 2022, through August 31, 2022, based on the
medical records from Manchin Clinic.

On September 15, 2022, Mr. Price underwent an x-ray of his right knee, which
revealed mild to moderate compartment joint space narrowing, minimal tricompartmental
osteophytic spurring, small suprapatellar effusion, and no evidence of acute fracture or
subluxation.

On September 27, 2022, the claim administrator issued an order that advised Mr.
Price that his TTD benefits were suspended because he returned to work on September 19,
2022. By order dated November 4, 2022, the claim administrator closed the claim for TTD
benefits.

Mr. Price followed up with Dr. Manchin and Angela Hager, PA-C, on December
16, 2022. Dr. Manchin assessed chronic right knee pain/strain and noted decreased range
of motion of the right knee and pain on palpitation of the right knee.

On April 1, 2023, Ronald Fadel, M.D., authored a medical review report regarding
Mr. Price’s claim. Dr. Fadel noted that Mr. Price’s case contains considerable diagnostic
uncertainty and persistent complaints. Further, Dr. Fadel stated that the initial impression
was a presumed exacerbation of the osteoarthritic disease which had failed to resolve in
the spectrum for arthritic management. Dr. Fadel opined that diagnostic clarity was
required and thus, he recommended a repeat orthopedic evaluation by a surgeon.

On May 5, 2023, Mr. Price underwent an MRI of his right knee, which revealed
complex tearing of the posterior horn of the medial meniscus with the appearance of a
bucket-handle fragment, moderate knee joint effusion, bone bruising of the medial tibial
and femoral condyles, a complex and large popliteal cyst, and some fluid surrounding the
medial collateral ligament indicative of a type I sprain.

On May 18, 2023, Mr. Price was treated by Michelle Hasley, FNP-C. Mr. Price
reported ongoing right knee pain. The impression was right knee pain, primary
osteoarthritis of the right knee, patellofemoral arthritis of the right knee, sprain of medial
collateral ligament of the right knee, and medial meniscus, posterior horn derangement.
FNP-C Hasley opined that Mr. Price had sustained an arthritic flare-up as a result of the
compensable injury. FNP-C Hasley recommended corticosteroid injections and physical
therapy.

On June 8, 2023, Mr. Price followed up with Dr. Manchin and PA-C Hager and
reported continued right knee pain. PA-C Hager noted that Mr. Price had a right knee

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sprain, internal derangement with meniscal tears, and bad arthritis. PA-C Hager indicated
that Mr. Price was off work at the time of his visit.

On June 9, 2023, the claim administrator issued an order denying authorization for
physical therapy and Orthovisc joint injection, on the basis that the request for treatment
was based on a non-compensable diagnosis in the claim. Mr. Price protested this order.

On July 19, 2023, Mr. Price began treatment with Peter Alasky, D.O. Mr. Price
presented with bilateral knee pain, and continual severe pain in the medial aspect of the
knee. X-rays of the right knee revealed moderate to severe degenerative changes. Dr.
Alasky assessed right knee pain, primary osteoarthritis of the right knee, and medial
meniscus tear. Further, Dr. Alasky opined that Mr. Price’s pain was caused by arthritis as
well as his meniscal tearing. Dr. Alasky recommended a cortisone injection,
viscosupplementation injections, and physical therapy.

On July 24, 2023, Dr. Manchin completed a Diagnosis Update form, which
requested that right knee sprain, sprain of the medial collateral ligament of the right knee,
and derangement of the posterior horn with meniscus tear be added to the claim as
compensable conditions.

Mr. Price submitted a Claim Reopening Application dated August 24, 2023, in
which he alleged that he sustained an aggravation and/or progression of the compensable
injury and requested TTD benefits from May 18, 2023, to August 31, 2023. The physician’s
portion of the application was completed by Dr. Manchin, who opined that Mr. Price was
unable to work due to a right knee sprain, sprain of the medial collateral ligament of the
right knee, and derangement of the posterior horn with meniscus tear. Dr. Manchin
recommended right knee physical therapy, an orthopedist evaluation, and injections. Dr.
Manchin reported that Mr. Price was temporarily and totally disabled from May 18, 2023,
to an unknown date, and opined that his condition was a direct result of the compensable
injury. Dr. Manchin did not respond on the form when asked whether there had been an
aggravation or progression of the compensable injury since being released to resume
employment or being certified as having reached maximum medical improvement.

On August 31, 2023, Mr. Price was deposed, and he testified that after the
compensable injury, he returned to work in September of 2022. When asked to describe
his injury on August 17, 2022, Mr. Price stated that he was working the midnight shift and
using a high-pressure hose when the hose blew a hole, struck him in the back of the head,
and knocked him to the ground. Mr. Price stated that he twisted his right knee as a result
of the incident. Mr. Price testified that he can’t bend his right knee without it collapsing,
and that there is weakness throughout his right leg. Further, Mr. Price testified that he had
no problems with his right knee when he went to work on August 17, 2022.

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On October 11, 2023, Prasadarao Mukkamala, M.D., completed a review of Mr.
Price’s medical records. Dr. Mukkamala opined that the derangement of the posterior horn
medial meniscus was degenerative in nature and not causally related to the injury of August
17, 2022. Further, Dr. Mukkamala opined that there was no indication for additional
physical therapy. Dr. Mukkamala concluded that the Orthovisc injection recommended by
Nurse Hasley was not medically related to or reasonably required for the compensable
injury but instead would address degenerative arthrosis. Dr. Mukkamala concluded that
there was no credible objective evidence that Mr. Price sustained any aggravation or
progression of the compensable injury since he returned to work on September 19, 2022.
Dr. Mukkamala attributed Mr. Price’s current symptoms to non-compensable degenerative
arthrosis and not the compensable injury.

By order dated October 24, 2023, the claim administrator denied the conditions of
sprain of medial collateral ligament of right knee and derangement of posterior horn with
meniscus tear of the right knee based on Dr. Mukkamala’s report. Mr. Price protested this
report. In a separate order also dated October 24, 2023, the claim administrator denied Mr.
Price’s reopening application for additional TTD benefits based on Dr. Mukkamala’s
report. Mr. Price protested both of these orders.

By order dated April 19, 2024, the Board reversed the claim administrator’s order
dated October 24, 2023, which denied the conditions of sprain of the medial collateral
ligament of the right knee and derangement of the posterior horn with meniscus tear of the
right knee, and added the conditions to the claim as compensable. The Board found that
the record contained no medical reports indicating any right knee problems or symptoms
prior to the compensable injury. Further, the Board noted that the MRI performed after the
compensable injury revealed a torn meniscus. The Board concluded that Dr. Mukkamala’s
finding that the derangement with tear was degenerative in nature without further
explanation does not rebut the presumption set forth in Moore v. IGC Tygart Valley, 247
W. Va. 292, 879 S.E.2d 779 (2022).

The Board also reversed the claim administrator’s June 9, 2023, order, which denied
authorization for physical therapy of the right knee and Orthovisc joint injections, and
instead authorized the treatments. The Board found that the evidence establishes that the
requested treatment of physical therapy and Orthovisc injections are necessary for Mr.
Price’s condition, as supported by the opinions of FNP-C Hasley, Dr. Alasky, Dr. Manchin,
and PA-C Hager.

Finally, the Board reversed the claim administrator’s order dated October 24, 2023,
which denied reopening of the claim for TTD benefits, and remanded to the claim
administrator with instructions to issue a protestable order granting TTD benefits from May
18, 2023, and thereafter as substantiated by proper evidence. The Board stated that the
conditions of medial collateral ligament sprain and internal derangement of the right knee
with meniscus tear are now compensable, and that Dr. Manchin and PA-C Hager opined

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that Mr. Price was TTD based on these conditions from May 18, 2023, until an unknown
date. Thus, the Board concluded that Mr. Price had established additional facts not
previously considered that would entitle him to greater benefits than already received. It is
from this order that ACNR now appeals.

Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:

The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:

(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

Syl. Pt. 2, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024).

On appeal, ACNR argues the Board erred in applying Moore v. IGC Tygart Valley,
247 W. Va. 292, 879 S.E.2d 779 (2022), to find that Mr. Price met his burden of proving
that his meniscus tear was caused by the compensable injury. Further, ACNR argues that
the Board erred in concluding that additional physical therapy and Orthovisc injections are
necessary treatment for the compensable injury, because the notes of FNP-C Hasley and
Dr. Alasky indicate that the treatment would be directed toward his preexisting arthritis.
Further, ACNR asserts that there was no proper basis for reopening the claim for TTD
benefits. We disagree.

It is well established that three elements must coexist in compensability cases: (1) a
personal injury, (2) received in the course of employment, and (3) resulting from that
employment. Barnett v. State Workmen’s Comp. Comm’r, 153 W. Va. 796, 172 S.E.2d 698
(1970). Regarding the compensability of preexisting conditions, the Supreme Court of
Appeals of West Virginia held in Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d
857 (2016):

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A noncompensable preexisting injury may not be added as a compensable
component of a claim for workers’ compensation medical benefits merely
because it may have been aggravated by a compensable injury. To the extent
that the aggravation of a noncompensable preexisting injury results in a
[discrete] new injury, that new injury may be found compensable.

Id. at 738, 783 S.E.2d at 858, syl. pt. 3.

The Supreme Court of Appeals clarified its position in Moore, holding:

A claimant’s disability will be presumed to have resulted from the
compensable injury if: (1) before the injury, the claimant’s preexisting
disease or condition was asymptomatic, and (2) following the injury, the
symptoms of the disabling disease appeared and continuously manifested
themselves afterwards. There still must be sufficient medical evidence to
show a causal relationship between the compensable injury and the disability,
or the nature of the accident, combined with the other facts of the case, raises
a natural inference of causation. This presumption is not conclusive, it may
be rebutted by the employer.

Moore, 247 W. Va. at 294, 879 S.E.2d at 781, syl. pt. 5.

Upon review, we find that the Board was not clearly wrong in reversing the claim
administrator’s October 24, 2023, order, and holding medial collateral ligament sprain and
an internal derangement of the right knee with a meniscus tear as compensable conditions
in the claim. Here, the Board found that these additional conditions are causally related to
the compensable injury and are therefore compensable. Further, the Board concluded that
the medical evidence establishes that the internal derangement of the right knee with
meniscus tear is a discrete new injury. The Board found that Dr. Mukkamala’s finding that
the derangement with tear was degenerative without further explanation does not rebut the
Moore presumption in this case. Based on the foregoing, we find that the Board’s decision
to hold medial collateral ligament sprain and an internal derangement of the right knee with
a meniscus tear as compensable conditions in the claim is supported by substantial
evidence.

The next issue on appeal is whether Mr. Price is entitled to the requested medical
treatment of physical therapy and Orthovisc injections. The claim administrator must
provide a claimant with medically related and reasonably necessary treatment for a
compensable injury. See W. Va. Code § 23-4-3 (2005) and W. Va. Code R. § 85-20-9.1
(2006).

Upon review, we conclude that the Board was not clearly wrong in reversing the
claim administrator’s June 9, 2023, order and authorizing the requested medical treatment

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of physical therapy and Orthovisc injections. Here, the Board found the evidence
establishes that the requested treatment of physical therapy and Orthovisc injections are
necessary for Mr. Price’s condition, as supported by the opinions of FNP-C Hasley, Dr.
Alasky, Dr. Manchin, and PA-C Hager. Further, as noted by the Board, there is no
indication in the record that Mr. Price utilized either treatment for degenerative joint
disease prior to the compensable injury.

Turning to the final issue of Mr. Price’s eligibility for TTD benefits, ACNR argues
that there was no proper basis for reopening the claim for TTD benefits. In order to reopen
a claim for TTD benefits, a claimant must show an aggravation or progression of a
compensable condition, or facts not previously considered. See W. Va. Code § 23-5-2
(2005) and W. Va. Code § 23-5-3a (2022). We agree with the Board’s findings that the
addition of medial collateral ligament sprain and internal derangement of the right knee to
the claim constituted facts not previously considered by the claim administrator when it
closed the claim for TTD benefits. Thus, we conclude that the Board was not clearly wrong
in finding that Mr. Price is entitled to additional TTD benefits.

Accordingly, we affirm the Board’s April 19, 2024, order.

Affirmed.

ISSUED: December 6, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear

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