Palmer Hall v. Southeastern Land, LLC

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
PALMER HALL, January 10, 2023
Claimant Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS

vs.) No. 22-ICA-68 (JCN: 2020022288) OF WEST VIRGINIA

SOUTHEASTERN LAND, LLC,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Palmer Hall appeals the order of the Workers’ Compensation Board of
Review (“Board”) dated August 1, 2022, that affirmed the claim administrator’s orders
denying a request to add bilateral knee contusions and strains as compensable conditions
in the claim, denying treatment for a knee fracture, denying a lumbosacral injection, and
denying an MRI of the right knee. 1 Respondent Southeastern Land, LLC, (“Southeastern”)
filed a timely response. 2 Mr. Hall did not file a reply brief.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). 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 lower tribunal’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

Mr. Hall, an underground coal miner, suffered an injury on March 30, 2020, when
large rocks were thrown from a machine. One large rock, weighing about 250 pounds,
landed on his legs. Mr. Hall was transported to the Pikeville Medical Center where x-rays
revealed a comminuted fracture at the mid-tibia and a minimally displaced fracture of the
proximal fibula on the right leg. X-rays of his right knee revealed some suprapatellar joint
effusion but no fracture or subluxation. A lumbar spine CT, revealing mild, multilevel
spondylitic, and degenerative changes but no fracture, was also performed due to back pain.
Anbu Nadar, M.D., who diagnosed Mr. Hall with fractures of the right tibia and fibula, a
cervical strain, and a lumbosacral strain, performed intramedullary nailing to repair the

1
The order also affirmed the claim administrator’s denial of a medication, but Mr.
Hall did not assign error to this ruling, and it will not be addressed in this decision.

Petitioner is represented by Patrick K. Maroney, Esq. Respondent is represented
2

by Maureen Kowalski, Esq.

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tibial fracture. By order dated April 1, 2020, the claim administrator held the claim
compensable for “right leg including the Tibia/Fibula Fracture.”

At a visit with Dr. Nadar on September 16, 2020, Mr. Hall reported low back pain,
and a steroid injection was administered in the lumbosacral area. Dr. Nadar completed a
Diagnosis Update form on December 29, 2020, in which he listed the primary diagnoses
as fractures of the right tibia and fibula. He listed the following as secondary conditions: a
cervical strain with radiculopathy, a lumbar strain with radiculopathy, and contusion and
strain of both knees. The Diagnosis Update form contains a space for the treatment provider
to specify the clinical findings supporting the diagnoses and to advise how the conditions
are related to the compensable injury. In this space, Dr. Nadar merely wrote, “review
medical records” and he did not provide any clinical findings to support his diagnoses.

The claim administrator issued an order dated January 14, 2021, adding cervical
strain and lumbar strain as compensable conditions. A second claim administrator’s order,
also dated January 14, 2021, denied the compensability of bilateral knee strains and
contusions, stating that Mr. Hall did not sustain injuries to his knees in the course of and
as a result of his employment. Mr. Hall protested this order to the Board.

In an order dated February 24, 2021, the claim administrator denied treatment
requested by Dr. Nadar for a knee fracture. The order stated that the treatment requested
was denied because it was not medically necessary nor reasonably required to treat the
injury. The request by Dr. Nadar was not submitted into evidence below so it is not possible
to know what specific treatment was requested. Mr. Hall protested this order to the Board.

A claim administrator’s order dated May 4, 2021, denied an authorization request
for a lumbosacral injection on the basis that it was not medically necessary nor reasonably
required to treat the compensable condition. The order also indicated that on August 21,
2020, Joseph Grady, M.D. found that Mr. Hall had preexisting degenerative changes in his
spine. Mr. Hall protested this order to the Board.

Mr. Hall testified at a deposition on February 24, 2021, that the 250-pound rock that
struck him on March 30, 2020, knocked him down and pinned him to the ground when it
landed across his knees. He contended that since the injury, his right knee sometimes goes
out and his left knee hurts when he walks far. He admitted that a year or two before the
injury, Dr. Goble prescribed medication for knee swelling.

Mr. Hall testified at another deposition on June 14, 2021, that he underwent another
surgery with bone grafting performed by Dr. Nadar on March 11, 2021, to address the
nonunion of the fibula fracture. In his deposition, Mr. Hall also contended that he did not
have low back symptoms until he suffered the injury in the claim.

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Southeastern referred Mr. Hall to Marsha Bailey, M.D., for an independent medical
evaluation that was performed on June 17, 2021. Dr. Bailey determined that Mr. Hall’s
bilateral knee pain was unrelated to the work injury and that the medical evidence did not
support a finding of knee contusions, strains, or other knee injuries. In particular, Dr. Bailey
observed that Mr. Hall was treated in 2019 for bilateral knee complaints and that x-rays
after the injury revealed osteoarthritis in the right knee. Additionally, Dr. Bailey observed
that the initial medical reports after the injury did not indicate that Mr. Hall suffered a knee
injury, strain, or twisting. Finally, she noted that a CT revealed degenerative spine disease.
She placed Mr. Hall at maximum medical improvement and assigned a 5% whole person
impairment to the compensable conditions.

On June 17, 2021, the claim administrator issued an order denying Dr. Nadar’s
request for an MRI of the right knee, stating that it was not medically necessary nor
reasonably required to treat the compensable condition. Mr. Hall protested this order to the
Board.

On June 28, 2021, Mr. Hall underwent the MRI, which according to his deposition
testimony on August 3, 2021, was covered by his health insurance. The MRI revealed a
medial meniscus tear and mild degenerative changes. In November 2021, Dr. Nadar
surgically repaired a complex meniscus tear in the left knee, and in February 2022, he
performed a similar surgery on the right knee, noting in his operative report that there was
a degenerative meniscus tear and chondromalacia in the knee. The surgeries were not
covered in the claim.

By order dated August 1, 2022, the Board affirmed the claim administrator’s orders
denying compensability of bilateral knee contusions and strains, denying treatment for a
knee fracture, denying a lumbosacral injection, and denying a right knee MRI. The Board
found that Dr. Nadar failed to identify medical records to support his request to add bilateral
knee contusions and strains. Noting that Dr. Bailey found Mr. Hall was treated for bilateral
knee pain before the date of the injury, the Board determined that the evidence did not
support a finding that Mr. Hall suffered a knee injury in the work accident. Thus, the Board
also affirmed the denial of the right knee MRI and treatment for a knee fracture. Further,
the Board determined that the lumbosacral injection was properly denied because a lumbar
strain is expected to heal no later than eight weeks according to West Virginia Code of
State Rules § 85-20-37.5 (2006). 3 The Board also noted that the CT of Mr. Hall’s lumbar
spine revealed spondylitis, and that he did not provide credible evidence showing his injury

3
The Board’s findings of fact lacked supportive details about the claim
administrator orders such as which doctor made the request at issue, when the request was
made, and the basis given (if any) by the claim administrator for the denial. More details
would add clarity and assist in this Court’s review of the issues.

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is an “extraordinary case” in which the normal guidelines in Rule 20 may be extended. It
is from the Board’s order that Mr. Hall 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.

On appeal, Mr. Hall contends that the Board incorrectly concluded that he did not
suffer contusions and strains to his knees at the time of the compensable injury. Asserting
that the conditions were not preexisting, Mr. Hall notes that the medical treatment he
required after the injury was beyond the previous treatment provided by Dr. Goble.
Additionally, Mr. Hall notes that the MRIs revealed meniscal tears in both knees, and he
argues that Dr. Bailey failed to consider the fast-twisting motion that occurred at the time
of the injury when he attempted to avoid being hit by the rock. In addition, Mr. Hall asserts
that the Board failed to weigh the evidence showing he had no prior low back treatment,
yet after the injury, he experienced chronic back pain affecting his activities of daily living.
Mr. Hall also argues that the Board should have found that his back problems resulted from
being knocked down by a 250-pound rock and that the lumbosacral injections should have
been authorized.

After review, we affirm the Board’s order. Although we may have ruled differently
on the compensability of the knee contusions and strains and the request for a right knee
MRI, to reverse the Board’s order, we must find that the Board committed one of the six
reversible errors set forth above. “[A] reviewing court may not overturn a finding simply
because it would have decided the case differently, and it must affirm a finding if the [lower
tribunal’s] account of the evidence is plausible in light of the record viewed in its entirety.”
Syl. Pt. 5, W. Va. State Police v. Walker, 246 W. Va. 77, 866 S.E.2d 142 (2021), citing Syl.
Pt. 1, in part, In Re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996). Further, our
review is deferential to the Board. West Virginia Code § 23-5-12a(b) sets forth the same

4
standard of review as was previously required of the Board when it reviewed decisions by
the Office of Judges per West Virginia Code § 23-5-12 before the 2021 statutory
amendments became effective. In considering West Virginia Code § 23-5-12, the Supreme
Court of Appeals of West Virginia stated that the Board was required to accord deference
to the decisions by the Office of Judges. See Conley v. Workers’ Comp. Div., 199 W. Va.
196, 203, 483 S.E.2d 542, 549 (1997). Based on the evidence of record, the Board’s
determination regarding the compensability of knee contusions and strains and the knee
MRI is plausible. Therefore, we do not find that the Board erred in affirming the denial of
knee contusions and sprains and denying an MRI of the right knee.

Similarly, we do not find that the Board erred in affirming the denial of unspecified
treatment for a knee fracture, as no knee fracture was diagnosed nor ruled compensable. 4
Finally, we do not find that the Board erred in affirming the denial of lumbosacral injections
on the basis that Mr. Hall failed to provide credible evidence why his treatment should be
allowed to exceed the duration of care for a lumbar sprain pursuant to the West Virginia
Code of State Rules § 85-20-37.5.

Accordingly, we affirm.

Affirmed.

ISSUED: January 10, 2023

CONCURRED IN BY:

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

4
The discussion section of the Board’s order mistakenly indicated that Mr. Hall
requested that a knee fracture be ruled compensable. However, Mr. Hall’s protest and
appeal only involve the denial of an unspecified treatment for a knee fracture and
compensability was not requested for this condition.

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