City of Wheeling v. David Gilbert

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

CITY OF WHEELING, FILED
Employer Below, Petitioner December 4, 2025
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
v.) No. 25-ICA-222 (JCN: 2024010987) INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

DAVID GILBERT,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner City of Wheeling (“Wheeling”) appeals the April 29, 2025, order of the
Workers’ Compensation Board of Review (“Board”). Respondent David Gilbert filed a
response.1 Wheeling did not reply. The issue on appeal is whether the Board erred in
reversing the claim administrator’s order, which closed 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.

A City of Wheeling Incident & Investigation Report dated December 1, 2023,
indicates that Mr. Gilbert reported that he had tripped while going upstairs and, while
attempting to catch himself on a stretcher after tripping, he injured his right wrist. Mr.
Gilbert, a firefighter employed by Wheeling, presented to WVU Urgent Care on December
7, 2023, for an occupational injury to his right wrist occurring on December 1, 2023.
According to Mr. Gilbert, he was getting into an ambulance and slipped and fell onto a
stretcher with his right hand outstretched. Mr. Gilbert underwent an x-ray of the right wrist,
revealing no bony abnormalities. The assessment was right wrist sprain and right wrist
pain.

Mr. Gilbert completed an Employees’ and Physicians’ Report of Occupational
Injury or Disease dated December 7, 2023, indicating that he injured his wrist on December
1, 2023, when he tripped and caught himself while getting into an ambulance. The

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Wheeling is represented by Aimee M. Stern, Esq. Mr. Gilbert is represented by
Sandra K. Law, Esq.

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physician’s section, completed by Danielle Palmer, NP, at WVU Urgent Care, indicated
that Mr. Gilbert sustained a right wrist sprain as a direct result of an occupational injury.

On December 11, 2023, Mr. Gilbert was seen by Ross Tennant, NP, for an
occupational injury to his right hand. Mr. Gilbert reported pain in the right wrist, constant
clicking, a popping sensation with certain movements, and that it feels like his wrist pops
out of place at times. Nurse Tennant indicated that Mr. Gilbert hyperextended his wrist
during the injury. Mr. Gilbert denied any previous history of injuries to his right wrist. An
MRI of Mr. Gilbert’s right wrist was unremarkable. The assessment was a right wrist
sprain.

Mr. Gilbert underwent occupational therapy at The Hand Rehabilitation Center from
December 13, 2023, through November 20, 2024. The assessment was a right wrist sprain.
Mr. Gilbert reported that he was working out later the same day as the compensable injury
when he felt something move in his right wrist. It was noted that Mr. Gilbert had instability
in the radial wrist with head of radius/scaphoid/metacarpal shifting during wrist flexion,
that the ulnar styloid was more prominent on the right when compared to the left, and that
there was possible left ECU subluxation over the ulnar styloid. The records indicate that
Mr. Gilbert reported he had joint instability in his right wrist prior to the compensable fall.
The claim administrator issued an order dated December 14, 2023, holding the claim
compensable for right wrist sprain.

On December 29, 2023, Mr. Gilbert underwent an MRI of his right wrist, revealing
that the scapholunate ligament was grossly intact. On March 1, 2024, Mr. Gilbert
underwent an x-ray of his right wrist, revealing no acute fracture or dislocation. Mr. Gilbert
was seen by Charles Tracy, M.D., on March 1, 2024, for ongoing right wrist pain. Mr.
Gilbert reported persistent pain over the dorsum and dorsal radial aspect of the wrist and a
shift in his wrist bones with certain activities. Dr. Tracy noted that a Watson maneuver
elicited discomfort at the scapholunate interval. Dr. Tracy reported that Mr. Gilbert’s
symptoms, location of discomfort, and the dynamic instability were suspicious for a
scapholunate ligament injury, most likely a partial tear of the dorsal ligament and/or
membranous portion. Dr. Tracy recommended right wrist arthroscopy.

Mr. Gilbert underwent right wrist arthroscopy at Wheeling Hospital on June 3, 2024.
The operative report indicated that the post-operative diagnosis was a complete tear of the
scapholunate ligament of the right wrist. It was reported that the scapholunate ligament
was inspected and found to be completely torn with a positive drive-through test into the
midcarpal joint. On June 7, 2024, Mr. Gilbert had a post-operative follow-up with Dr.
Tracy, who reported that Mr. Gilbert had a complete separation of the scapholunate
ligament with a positive drive-through test. Dr. Tracy recommended scapholunate ligament
reconstruction with the internal brace technique. Dr. Tracy submitted a Diagnosis Update

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form dated June 11, 2024, requesting that scapholunate instability, right wrist, and ligament
tear scapholunate right wrist be added as compensable conditions in the claim.

On July 23, 2024, Leonard J. Buck, M.D., completed a Physician File Review of
Mr. Gilbert’s medical records. Dr. Buck noted that occupational therapy records indicated
Mr. Gilbert had episodes of instability of the right wrist that predated the compensable
injury, and that the MRI performed after the compensable injury was normal and showed
the scapholunate ligament to be intact. It was noted that the occupational therapy records
indicated that Mr. Gilbert’s wrist popped again when he was working out after his
compensable injury. Dr. Buck opined that Mr. Gilbert had a scapholunate ligament tear
with instability, but that the documentation does not support that Mr. Gilbert had a
scapholunate ligament tear prior to the MRI of December 29, 2023. He further opined that
the conditions were not related to the compensable injury.

On July 31, 2024, the claim administrator issued an order denying the addition of
scapholunate instability of the right wrist and scapholunate ligament tear of the right wrist
as compensable conditions of the claim. Mr. Gilbert protested this claim.

Mr. Gilbert was evaluated by Joseph Grady II, M.D., on September 6, 2024.
Mr. Gilbert reported pain and a shifting sensation within the radial aspect of the right wrist.
Dr. Grady noted that Mr. Gilbert had not worked since June 2, 2024. The assessment was
right wrist pain with demonstrated right scapholunate ligament tear on direct visualization
during arthroscopic examination. Dr. Grady opined that the right wrist sprain that occurred
with the initial injury had resolved, and Mr. Gilbert had reached maximum medical
improvement (“MMI”) for the compensable injury. Dr. Grady further opined that Mr.
Gilbert would have difficulty working full duty at his regular job because of the right-hand
pain and weakness, which Dr. Grady attributed to the noncompensable scapholunate
ligament tear.

Mr. Gilbert underwent a scapholunate ligament reconstruction, with tendon graft
and internal brace augmentation of the right wrist on September 12, 2024. The post-
operative diagnosis was a complete tear of the scapholunate ligament of the right wrist.

On September 30, 2024, the claim administrator issued an order suspending Mr.
Gilbert’s TTD benefits based upon Dr. Grady’s finding of MMI. On November 5, 2024,
the claim administrator issued an order closing the claim for TTD benefits. Mr. Gilbert
protested this order.

Mr. Gilbert was deposed on November 11, 2024, and testified that he injured his
right wrist on December 1, 2023, when he tripped while getting into a vehicle and
attempted to catch himself. Mr. Gilbert stated that he hooked his thumb on the headrest of
the stretcher, which injured his wrist. Mr. Gilbert stated that he continued to work, and for

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several hours, the pain was intense, but the pain lessened throughout the day. Mr. Gilbert
testified that while doing a leg work out later that day, he felt a pop in his wrist when he
was putting weight on the barbell. Mr. Gilbert stated that firefighters are encouraged to
work out while at work and that facilities are available at the station to work out. Mr.
Gilbert testified that he did not tell anybody at hand therapy that he had problems with his
right wrist prior to the compensable injury. He stated that he might have mentioned that he
had some prior issues with his left wrist, such as when he was rock climbing, which
required him to adjust his left wrist to use it functionally. Regarding the physical therapy
note dated December 13, 2023, which reported that he had some joint instability in his right
wrist prior to the compensable injury, Mr. Gilbert testified that he believed that note was
based upon a miscommunication. Mr. Gilbert further testified that he was describing an
issue with his left wrist and trying to say that he never had any issues with his right wrist.

On March 3, 2025, the Board reversed the claim administrator’s order denying the
addition of scapholunate instability of the right wrist and scapholunate ligament tear of the
right wrist as compensable conditions of the claim. The Board found that Mr. Gilbert
established that scapholunate instability of the right wrist and ligament tear of the
scapholunate right wrist are causally related to the compensable injury.2

On April 29, 2025, the Board reversed the claim administrator’s order closing the
claim for TTD benefits. The Board found that the closure of the claim for TTD benefits
was premature and improper. Wheeling now appeals the Board’s April 29, 2025, order.

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;

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On October 24, 2025, this Court affirmed the Board’s March 2, 2025, order, which
added scapholunate instability of the right wrist and scapholunate ligament tear of the right
wrist to the claim as compensable conditions. See City of Wheeling v. Gilbert, No. 25-ICA-
138, 2025 WL 2993722 (Ct. App. Oct. 24, 2025) (memorandum decision).

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(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).

Wheeling argues that the Board erred in its March 3, 2025, order adding
scapholunate instability of the right wrist and ligament tear of the scapholunate right wrist
to the claim as compensable conditions. Thus, Wheeling further argues that the Board erred
in continuing Mr. Gilbert’s TTD benefits based on the addition of those conditions. We
disagree.

Here, the Board found that the closure of the claim for TTD benefits on November
5, 2024, was premature and therefore improper. The Board noted that Dr. Grady found that
Mr. Gilbert had reached MMI from the compensable right wrist sprain, but that he could
not return to work because of the noncompensable conditions of scapholunate instability
of the right wrist and scapholunate ligament tear of the right wrist. The Board further noted
that, on March 3, 2025, the conditions of scapholunate instability of the right wrist and
scapholunate ligament tear of the right wrist were added as compensable components of
the claim. The Board found that there is no evidence that Mr. Gilbert has returned to work,
been released to return to work, or has reached MMI from all compensable conditions of
the claim.

Wheeling’s argument that the Board erred in adding scapholunate instability of the
right wrist and ligament tear of the scapholunate right wrist to the claim as compensable
conditions has previously been addressed by this Court in City of Wheeling v. Gilbert, No.
25-ICA-138, 2025 WL 2993722 (Ct. App. Oct. 24, 2025) (memorandum decision), which
affirmed the Board’s finding that a right wrist scapholunate ligament tear and instability
are compensable conditions.

Upon review, we conclude that the Board was not clearly wrong in finding that the
closure of the claim for TTD benefits was premature and improper. We note that TTD
payments are payable during an injured worker’s recovery period after a compensable
injury. Pursuant to West Virginia Code § 23-4-7a, TTD benefits are not payable once an
injured worker reaches MMI, is released to return to work, or actually returns to work.
Upon review, we conclude that the Board was not clearly wrong in finding that the evidence
established that the closing of the claim for TTD benefits on November 5, 2024, was
premature and, therefore, improper. As the Supreme Court of Appeals of West Virginia
has set forth, “[t]he ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review
are deferential ones which presume an agency’s actions are valid as long as the decision is

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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.

Accordingly, we affirm the Board’s April 29, 2025, order.

Affirmed.

ISSUED: December 4, 2025

CONCURRED IN BY:

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

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