Marshall County Coal Resources v. Colby Yarbrough

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

MARSHALL COUNTY COAL RESOURCES, FILED
Employer Below, Petitioner
December 4, 2025
v.) No. 25-ICA-140 (JCN: 2024007694) ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
COLBY YARBROUGH, OF WEST VIRGINIA

Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Marshall County Coal Resources (“MCCR”) appeals the March 6, 2025,
order of the Workers’ Compensation Board of Review (“Board”). Respondent Colby
Yarbrough filed a response.1 MCCR did not file a reply. The issue on appeal is whether the
Board erred in reversing the claim administrator’s order, which denied a request for
retroactive authorization of an MRI of the left ankle and denied authorization for surgery
for primary repair of the anterior talofibular ligament (“ATFL”).2

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 that there is error in the Board’s decision but no substantial
question of law. This case satisfies the “limited circumstances” requirement of Rule 21(d)
of the Rules of Appellate Procedure for reversal in a memorandum decision. For the
reasons set forth below, the Board’s decision is vacated and remanded for further
proceedings consistent with this decision.

On October 19, 2023, Mr. Yarbrough sustained an injury to his left ankle when he
rolled his ankle while working for MCCR in an underground coal mine. The injury
occurred when Mr. Yarbrough slipped on a wet rock, rolled his left ankle, and fell. He
completed an Employees’ and Physicians’ Report of Occupational Injury or Disease dated
October 20, 2023, when he received treatment for the injury at Wheeling Hospital
Emergency Department. Gail Nickerson, FNP, a treatment provider at the hospital,
completed the physician’s section of the form and diagnosed Mr. Yarbrough with a left
ankle sprain and left ankle pain as the result of an occupational injury. The October 20,
2023, treatment notes from the hospital show that a left ankle x-ray showed no acute bony

1
MCCR is represented by Aimee M. Stern, Esq. Mr. Yarbrough is represented by
Sandra K. Law, Esq.
2
The Board’s order also reversed the claim administrator’s order that denied a
request to add sprain of ATFL of left ankle to the claim. MCCR does not appeal this issue.
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abnormality. Mr. Yarbrough was placed in an air cast, as he needed stabilization of the
ankle, and was discharged from the hospital.

Subsequently, Ross A. Tennant, NP, began to treat Mr. Yarbrough for his left ankle
injury. On October 25, 2023, Nurse Tennant examined Mr. Yarbrough’s left ankle and
noted some diffuse edema, resolving ecchymosis, and tenderness over the lateral malleolus
and ATFL. Mr. Yarbrough’s gait was noted to be antalgic, favoring his left side. Nurse
Tennant took Mr. Yarbrough off work and ordered physical therapy, which commenced on
October 26, 2023. The claim administrator issued an order on October 30, 2023, holding
the claim compensable for a sprain of an unspecified ligament of the left ankle.

A radiologist reported that an MRI performed on November 17, 2023, showed
normal signal and morphology of the ligaments, including the ATFL. The radiologist
reported that the cause of Mr. Yarbrough’s symptoms was not further defined by the study.
On January 2, 2024, Danny R. Fijalkowski, DPM, examined Mr. Yarbrough, who reported
that his ankle was still painful and swelled with activity. Mr. Yarbrough’s gait was noted
to be antalgic. Dr. Fijalkowski reviewed the MRI and interpreted it as showing an increased
signal involving the posterior margin of the subtalar joint and along the anterior lateral
aspect of the ankle. However, Dr. Fijalkowski said the MRI did not show any clear
evidence of a tendon or ligament tear, fracture, or a talar dome defect. Dr. Fijalkowski
noted that Mr. Yarbrough pointed to the lateral and medial aspects of his ankle as the source
of his pain. Further, Dr. Fijalkowski noted difficulty in assessing ankle instability due to
guarding. Mr. Yarbrough told Dr. Fijalkowski that he had sprained his left ankle multiple
times over the years, estimating at least twenty times. Dr. Fijalkowski diagnosed a sprain
of the left ankle and left ankle pain of unspecified chronicity. Physical therapy was
continued, and an ankle brace was ordered. In a follow-up visit on February 20, 2024, Dr.
Fijalkowski noted some progress, and found that the brace helped with stability. However,
on examination, some frontal plane laxity was noted, and Mr. Yarbrough reported pain
with palpation of the area of the ATFL. Dr. Fijalkowski continued to keep Mr. Yarbrough
off work.

On March 12, 2024, Prasadarao B. Mukkamala, M.D., performed an independent
medical examination of Mr. Yarbrough. Dr. Mukkamala noted that Mr. Yarbrough
acknowledged that he had multiple sports-related injuries to his left ankle in the past. Upon
examination, Dr. Mukkamala noted that Mr. Yarbrough walked with a limp on the left. Dr.
Mukkamala placed Mr. Yarbrough at maximum medical improvement for the injury and
opined that he should be able to return to work, although he needed to continue wearing
the brace at work. Dr. Mukkamala’s overall impairment rating for the ankle and foot was
4% whole person impairment based on mild range of motion limitations; however, Dr.
Mukkamala apportioned 2% impairment to the prior history of ankle injuries, and the
remaining 2% impairment to the compensable injury.

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On March 26, 2024, Dr. Fijalkowski again examined Mr. Yarbrough. Frontal plane
laxity, pain in and around the foot and ankle, including the area of the left ATFL, were
noted. Dr. Mukkamala’s findings and report had not yet been received. Dr. Fijalkowski
continued physical therapy, the use of the ankle brace, and kept Mr. Yarbrough off work.
An x-ray of the left tibia-fibula was ordered. The x-ray, performed on April 19, 2024,
showed no acute abnormality. Mr. Yarbrough followed up with Dr. Fijalkowski on June 4,
2024. Pain responses were similar to those in previous visits, and Dr. Fijalkowski observed
that Mr. Yarbrough continued to have an antalgic gait. Dr. Fijalkowski reviewed the MRI
from 2023 and noted that it showed significant fluid along the ATFL. Dr. Fijalkowski
ordered a repeat study to check the status of the ligament. The repeat MRI, performed on
June 21, 2024, as read by the radiologist, revealed intact lateral ankle ligaments, but a likely
prior lateral ankle sprain with attenuation of the intact ATFL was noted. No evidence of
bony edema or fracture was seen. On July 15, 2024, at an office visit, Mr. Yarbrough told
Dr. Fijalkowski that his ankle felt weak, unstable, and as if it was going to give out. He had
to minimize his activity, and he continued to have significant pain at times. Dr. Fijalkowski
continued to note an antalgic gait. Dr. Fijalkowski diagnosed a sprain of the ATFL of the
left ankle, and he discussed a surgical repair of the ligament in combination with platelet-
rich plasma. Mr. Yarbrough agreed with the plan. On July 29, 2024, Dr. Fijalkowski
completed a Diagnosis Update in which he requested that the sprain of ATFL in the left
ankle be added as a compensable condition in the claim.

By order dated August 1, 2024, the claim administrator denied Dr. Fijalkowski’s
request to add a sprain of ATFL of the left ankle to the claim. The claim administrator also
denied a retroactive request for authorization of an MRI of the left ankle and surgery for
repair of the ATFL of the left ankle. The claim administrator noted that retroactive
authorization is not allowed, and the diagnosis update and surgery were denied based on
Dr. Mukkamala’s report. Mr. Yarbrough appealed the claim administrator’s order to the
Board.

On August 22, 2024, Dr. Fijalkowski performed a repair of a disrupted ATFL on
the left. The postoperative diagnosis was a sprain of ATFL on the left. In his operative
notes, Dr. Fijalkowski indicated that the ATFL was “thickened with hypertrophic
granulation,” which was excised. The ligament was sutured, and the ankle and foot were
noted to have no range of motion restriction or laxity.

On November 6, 2024, Ronald J. Fadel, M.D., performed a record review and
opined that Mr. Yarbrough sustained a sprain of the ATFL of the left ankle as a result of
the work injury. However, Dr. Fadel concluded that the updated MRI and surgery were not
medically related to or reasonably required as a result of Mr. Yarbrough’s work injury.
Instead, Dr. Fadel noted that Mr. Yarbrough had a prior history of multiple left ankle
sprains. Dr. Fadel also noted that in March of 2024, Dr. Mukkamala found that Mr.
Yarbrough did not require any further treatment for the work injury. Dr. Fadel determined
that Dr. Fijalkowski performed a ligamentous reconstruction rather than a repair of a tear

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and that there was no evidence of an acute tear, which would support a work injury. Thus,
Dr. Fadel determined that the surgery was “elective” and performed in order to reduce the
ligamentous laxity caused by the prior repetitive sprains. The repeat MRI, Dr. Fadel added,
was only necessary for operative planning.

On March 6, 2025, the Board reversed the claim administrator’s order and held the
claim compensable for ATFL of the left ankle. In addition, the Board also reversed the
claim administrator’s denial of the MRI and left ankle surgery, finding that the treatments
were reasonable, necessary, and related to the compensable injury. MCCR now appeals the
Board’s order with respect to the Board’s authorization of the treatment.

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).

MCCR argues that the Board erred in failing to discuss Dr. Fadel’s conclusion that
the surgery and pre-surgical MRI were directed toward ligamentous laxity caused by Mr.
Yarbrough’s numerous prior ankle sprains rather than the compensable sprain injury. We
agree.

In its analysis, the Board noted that Dr. Fijalkowski requested that ATFL sprain be
added as a compensable condition and that Dr. Fadel agreed that the condition resulted
from the work injury. In this instance, the Board did not make, nor did it necessarily need
to make, any distinguishing findings to weigh Dr. Fijalkowski’s and Dr. Fadel’s opinions
because the two doctors agreed about the compensability of the ATFL sprain.

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However, when it addressed the issue of whether the repeat MRI and surgery were
properly denied, the Board failed to provide any analysis of Dr. Fadel’s opinion or make
any finding about the weight given to Dr. Fadel’s report. Instead, the Board noted that even
though Mr. Yarbrough complained of pain in his ankle and walked with a limp on the left
side at the time Dr. Mukkamala placed him at maximum medical improvement, and found
that no further treatment was needed. The Board also noted that a couple of months later,
Dr. Fijalkowski noted that Mr. Yarbrough continued to complain of pain and walk with a
limp. The Board determined that given Mr. Yarbrough’s unresolved symptoms, Dr.
Fijalkowski’s request for a repeat MRI was reasonable and necessary for the compensable
injury.

Regarding the surgery requested by Dr. Fijalkowski, the Board found that although
Mr. Yarbrough had a history of prior left ankle injuries, there was no evidence that he was
receiving treatment prior to the compensable injury. Further, the Board pointed out that
following the surgery, Mr. Yarbrough’s condition improved such that he was able to return
to work without restrictions, and that “the evidence demonstrates that the requested surgery
was reasonable, necessary and related to the claimant’s compensable injury.” Thus, the
Board again failed to provide an analysis of Dr. Fadel’s opinion about the surgery.

Upon review, we find that with respect to the treatment issues, the Board was clearly
wrong in failing to analyze, or address in any way, Dr. Fadel’s report. As we held in Boyce
v. Quinwood Coal Co., LLC, No. 24-ICA-346, 2025 WL 2792731, at *4 (W. Va. Ct. App.
Oct. 1, 2025), “this Court has consistently stated that it is not in a position to reweigh the
evidence at the appellate stage.” See also West Virginia Department of Health and Human
Resources Office of Health Facility Licensure and Certification v. Heart 2 Heart
Volunteers, Inc. d/b/a Serenity Hills Life Center, 249 W. Va. 464, 470, 896 S.E.2d 102, 108
(Ct. App. 2023) (citing Syl. Pt. 3, Frazier v. Ramadan, 249 W. Va. 170, 895 S.E.2d 25
(2023)). Further, the Supreme Court of Appeals of West Virginia has found that West
Virginia Code § 23-4-1g(a)

vests the factfinder in a workers’ compensation case with a statutory duty “to
weigh the conflicting medical opinions in terms of ‘relevance, credibility,
materiality and reliability ... in the context of the issue presented.’” In
weighing the evidence, the factfinder is required to perform a complete
analysis and “consider the entire record, clarify inconsistencies, and
adequately explain her reasons for choosing one medical opinion over the
other.”

Workman v. ACNR Res., Inc., 251 W. Va. 796, ___, 916 S.E.2d 638, 643 (2025), quoting
Gwinn v. JP Morgan Chase, No. 23-172, 2024 WL 4767011 (W. Va. November 13,
2024) (memorandum decision).

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We acknowledge that we view the Board’s opinions under a clearly wrong standard
of review. However, this deferential standard does not relieve the Board from addressing
the evidence submitted and meritorious arguments made by the parties. In remanding, we
emphasize that our decision should not be seen as somehow forecasting the outcome of the
case. We direct that the Board provide an analysis of the evidence.

Accordingly, we vacate the Board’s March 6, 2025, order and remand the claim to
the Board for further analysis consistent with this opinion.

Vacated and Remanded.

ISSUED: December 4, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

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