West Virginia Military Authority v. Joseph Brogan

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
WEST VIRGINIA MILITARY AUTHORITY, May 1, 2026
Employer Below, Petitioner ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
v.) No. 25-ICA-414 (JCN: 2024029594)

JOSEPH BROGAN,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner West Virginia Military Authority (“WVMA”) appeals the September 30,
2025, order of the Workers’ Compensation Board of Review (“Board”). Respondent
Joseph Brogan timely filed a response.1 WVMA did not reply. The issue on appeal is
whether the Board erred in reversing the claim administrator’s order, which rejected the
claim.

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 West Virginia Rules of Appellate Procedure.

Mr. Brogan is employed as a squad leader at the Mountaineer Challenge Academy
(“MCA”). Mr. Brogan’s job duties include, among other things, providing 24-hour
supervision of the MCA’s cadets. Mr. Brogan alleges that he sustained an injury to his left
ankle in the course of and resulting from his employment on January 7, 2024.

Mr. Brogan completed an undated West Virginia Workers’ Compensation
Employees’ and Physician’s Report of Occupational Injury or Disease, alleging that he
sustained an injury to his left ankle while trying to break up a fight between two students
at work on January 7, 2024. The physician’s section of the report was not completed.

About a month before the compensable injury, on December 3, 2023, Mr. Brogan
was seen at Montgomery General Hospital (“MGH”) for complaints of left ankle pain. Mr.

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WVMA is represented by James W. Heslep, Esq., and Steven K. Wellman, Esq.
Mr. Brogan is represented by G. Patrick Jacobs, Esq.

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Brogan reported a history of right ankle pain, and indicated he was currently being treated
by a podiatrist and receiving regular injections. Mr. Brogan reported an onset of left ankle
pain over the past several days with no known injury. A physical examination revealed
edema to the left lateral medial malleolus of the left lower extremity with some tenderness
to palpation. X-rays of the left ankle taken on December 3, 2023, revealed soft tissue
swelling about the ankle and degenerative changes. The assessment was left ankle pain.

On December 5, 2023, Mr. Brogan presented to Douglas Dockery, DPM, with a
chief complaint of pain in the left lateral dorsal foot and left medial plantar midfoot. Mr.
Brogan reported that the symptoms began gradually and had been present for one week.
Dr. Dockery assessed Mr. Brogan with bilateral sinus tarsitis, primary osteoarthritis of the
left ankle and foot, and primary osteoarthritis of the right ankle and foot. He recommended
an orthotic foot insert. On January 2, 2024, Mr. Brogan followed up with Dr. Dockery. The
assessment was bilateral sinus tarsitis, primary osteoarthritis of the left ankle and foot, and
primary osteoarthritis of the right ankle and foot. Mr. Brogan was prescribed Voltaren gel
for his arthritic pain.

Following the compensable injury, on January 25, 2024, Mr. Brogan was seen by
Seth Craft, DPM, for his bilateral sinus tarsitis and bilateral foot and ankle osteoarthritis.
Dr. Craft recommended MRI studies of the left foot and ankle. Mr. Brogan was scanned
for custom orthotics and instructed to bring his work boots in for the next appointment for
evaluation.

Mr. Brogan underwent a left ankle MRI on February 22, 2024, revealing the
following findings: 1) abnormally edematous lateral malleolus, medial malleolus, posterior
talus, os trigonum, portions of calcaneus, and proximal fourth metatarsal compatible with
stress-related change; 2) moderate posterior subtalar osteoarthritis; 3) chronic plantar
fasciitis; 4) several small low-grade partial tears of the distal Achilles tendon; and 5)
scarring on mild partial tear of deltoid ligament. A left foot MRI performed on the same
day revealed a stress-related change in the proximal third and fourth metatarsals.

On February 27, 2024, and March 6, 2024, Mr. Brogan returned to MGH for left
ankle pain. Mr. Brogan reported chronic problems following a left ankle fracture at age
sixteen. Mr. Brogan further reported that he had sustained a new injury to his left ankle
approximately three months ago while breaking up a fight at work, and he stated that his
left ankle pain worsened following the work injury. Mr. Brogan was assessed with chronic
pain of the left ankle, arthritis of the subtalar joint, and arthritis of the left foot. Mr. Brogan
was fitted with a cam walker boot, and surgical options were discussed. Mr. Brogan was
seen by Dr. Dockery on October 8, 2024. The assessment was bilateral sinus tarsitis and
strain of the left Achilles tendon. Dr. Dockery prescribed meloxicam and ordered an MRI
of Mr. Brogan’s left foot and/or ankle.

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An Encova Claim Filing Form dated October 8, 2024, indicates that Mr. Brogan
was employed as a squad leader at MCA, and his job duties included providing twenty-
four-hour, seven days a week supervision of the MCA cadets. Mr. Brogan reported that he
injured his left/foot ankle on January 7, 2024, while attempting to stop a fight between two
cadets. Mr. Brogan described his injury as a strain of the left Achilles tendon and sprain of
the deltoid ligament of the left ankle. An Employers’ Report of Occupational Injury or
Disease dated October 10, 2024, indicates that: 1) Mr. Brogan sustained a left foot/ankle
sprain while trying to break up a fight between two cadets on January 7, 2024; 2) Mr.
Brogan notified the employer of his work injury on January 18, 2024; and 3) the employer
had no reason to question Mr. Brogan’s reported work injury.

On November 24, 2024, a second MRI of Mr. Brogan’s left ankle was performed,
revealing: 1) worsening of talar dome and neck edema when compared to a prior left ankle
MRI of February 22, 2024; 2) advanced arthropathy of the posterior subtalar joint space;
3) tendinopathy of the Achilles tendon; 4) intact tendons about the ankle mortise with
tedinopathy and peritendinitis of the left peroneus brevis tendon below the lateral
malleolus; 5) intact ligaments about the ankle mortise with medial gutter inflammation;
and 6) mild plantar fasciitis and intratendinous ossific bodies.

Mr. Brogan returned to Dr. Dockery on December 10, 2024, for reevaluation and
treatment following the November 24, 2024, left ankle MRI. Dr. Dockery noted that Mr.
Brogan’s left ankle MRI revealed a 3.5 cm intrasubstance tear of the Achilles tendon, and
he opined that the intrasubstance Achilles tear seen on the MRI was directly related to Mr.
Brogan’s work injury of January 7, 2024. The assessment was strain of unspecified
Achilles tendon. Dr. Dockery stated that Mr. Brogan could return to modified duty work
with the following restrictions: no carrying of more than fifteen pounds; no carrying for
further than twenty-five feet; and no climbing, kneeling, squatting, lifting from floor to
waist, lifting from waist to overhead, using his feet to pull anything over fifteen pounds, or
standing for more than ten minutes in one spot.

On December 18, 2024, James Dauphin, M.D., completed a physician review report.
Dr. Dauphin recommended that Mr. Brogan’s claim be denied due to a lack of detail on the
first report of injury form, an “incorrect diagnosis” listed on the form, and a six-month gap
in medical treatment.

On January 21, 2025, Mr. Brogan followed up with Dr. Dockery, who noted that
Mr. Brogan had developed pain in his left Achilles and left heel after breaking up a fight
at work. He further noted that Mr. Brogan’s symptoms had been present for a year, but that
Mr. Brogan felt his symptoms were improving. Dr. Dockery assessed Mr. Brogan with a
strain of unspecified Achilles tendon, and he again opined that recent imaging evidence of
an intrasubstance tear of Mr. Brogan’s left Achilles tendon was directly related to Mr.
Brogan’s work injury of January 7, 2024.

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Mr. Brogan was deposed on May 8, 2025, and testified that, on January 7, 2024, he
was trying to break up a fight between two cadets. He stated that during the fight one of
the cadets pushed him fifteen to twenty feet down a hallway before he was able to pin the
cadet against the wall. Mr. Brogan testified that he radioed for assistance, but he had to
keep the cadet pinned up against the wall until his supervisor arrived to assist him.
Following that incident, Mr. Brogan stated that he developed progressively worsening pain,
numbness, tingling, and swelling in his left ankle. He testified that he notified his
supervisor of the left ankle injury and completed paperwork regarding the injury on the
day of the injury. Mr. Brogan stated that he completed his shift and reported to work the
next day. The day following the incident, Mr. Brogan stated that he was still having
difficulty walking on the left ankle and, when asked, his supervisor and Assistant
Commandant both informed him that the appropriate paperwork had been filed. Mr.
Brogan testified that he attempted to keep working on the ankle and did not seek medical
treatment for a couple of weeks, but he sought medical treatment after he realized that his
left ankle was progressively worsening. Mr. Brogan stated that he sought treatment at
MGH, where he underwent an MRI of his left ankle/foot, and he was instructed to follow
up with Dr. Dockery, his treating podiatrist.

Mr. Brogan testified that Dr. Dockery reviewed the MRI and diagnosed a tear in the
Achilles tendon of Mr. Brogan’s left foot. Mr. Brogan stated that Dr. Dockery treated his
left ankle symptoms with injections, which were never required prior to the work injury of
January 7, 2024. Mr. Brogan testified that when he was sixteen years old, he broke his left
ankle playing football, and that injury healed in time, but his doctor informed him that he
would likely develop arthritis in the ankle. Mr. Brogan further testified that Dr. Dockery
treated him approximately twice a year for his right and left ankle/foot before the injury of
January 7, 2024. Mr. Brogan stated that he was never taken off work by Dr. Dockery for
his left ankle prior to the work injury of January 7, 2024, and he was also able to perform
his full range of his work duties and was not under any restrictions regarding his left ankle
prior to the work injury. Mr. Brogan testified that, following the January 7, 2024, work
injury, he had difficulty performing his job duties at MCA. Further, Mr. Brogan testified
that although he had symptoms in his left foot/ankle prior to the January 7, 2024, work
injury, his left ankle symptoms became much worse after the injury.

On September 30, 2025, the Board reversed the claim administrator’s order, which
rejected the claim. The Board found that Mr. Brogan established by a preponderance of
evidence that he sustained a strain of the left Achilles tendon in the course of and resulting
from his employment. WVMA now appeals the Board’s order.

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

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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).

WVMA argues that the Board’s order “harkens to a time when the worker’s
compensation jurisprudence was governed by a long-since abolished principle known as
the ‘rule of liberality.’” WVMA further argues that Mr. Brogan’s delay in reporting his
injury diluted his credibility. Additionally, WVMA argues that the Board held the claim
compensable solely based on one physician examining Mr. Brogan nine months after the
injury occurred. Finally, WVMA argues that it has rebutted the presumption set forth in
Moore v. ICG Tygart Valley, LLC, 247 W. Va. 292, 879 S.E.2d 779 (2022).2 We disagree.

Three elements must coexist in workers’ compensation cases to establish
compensability: (1) a personal injury (2) received in the course of employment and (3)

2
In Moore, the Supreme Court of Appeals of West Virginia (“SCAWV”) held:

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 or condition 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 at 294, 879 S.E.2d at 781, syl. pt. 5.
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resulting from that employment. Barnett v. State Workmen’s Comp. Comm’r, 153 W. Va.
796, 172 S.E.2d 698 (1970); Sansom v. Workers’ Comp. Comm’r, 176 W. Va. 545, 346
S.E.2d 63 (1986).

The SCAWV held in Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857
(2016):

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.

Here, the Board found Mr. Brogan’s deposition testimony credible, and it
determined that a preponderance of the evidence establishes that Mr. Brogan sustained a
strain of the left Achilles tendon in the course of and resulting from his employment. As to
Mr. Brogan’s prior symptoms, the Board noted that he was treated for symptoms associated
with bilateral sinus tarsitis and primary osteoarthritis of the left foot and ankle prior to the
alleged work injury. However, the Board analyzed the claim under Moore and found that
there was no evidence that the partial tearing of the Achilles tendon predated the injury. In
support of this finding, the Board noted that Mr. Brogan’s left ankle symptoms worsened
following the injury, and Dr. Dockery’s medical opinion that the left Achilles tendon strain
was directly related to the work injury. As to Mr. Brogan’s “delay” in reporting the injury,
the Board found that Mr. Brogan reported the injury to MCA no later than January 18,
2024. The Board noted that:

Although W.Va. C.S.R. § 85-1-3.1 states that a claimant should provide
notice of the injury to the employer within two working days of the injury, it
also states that “under no circumstances shall the fact that notice of an
occupational injury was provided by the claimant later than two (2) working
days from the time of the injury be the sole basis for denial of a claim.”

Further, the Board found that “the weight of the evidence supports a finding that a
compensable injury occurred, and pursuant to W.Va. C.S.R. § 85-1-3.1, the claim cannot
be rejected based solely upon a finding that the claimant did not report the injury with two
working days.”

Upon review, we conclude that the Board was not clearly wrong in finding that Mr.
Brogan sustained a left Achilles tendon strain in the course of and as a result of his
employment. As the SCAWV has set forth, “[t]he ‘clearly wrong’ and the ‘arbitrary and

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capricious’ standards of review are deferential ones which presume an agency’s actions are
valid as long as the decision is supported by substantial evidence or by a rational basis.”
Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996). With this deferential
standard of review in mind, we cannot conclude that the Board was clearly wrong in
reversing the claim administrator’s order, which rejected the claim. Further, contrary to
WVMA’s argument that the Board decided this claim under the “rule of liberality,” there
is no indication that such occurred. There is adequate evidence to support the Board’s
findings.

Accordingly, we affirm the Board’s September 30, 2025, order.

Affirmed.

ISSUED: May 1, 2026

CONCURRED IN BY:

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

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