ACNR Resources, Inc. v. Renee J. Orr

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
ACNR RESOURCES, INC., May 22, 2023
Employer Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 22-ICA-315 (BOR Appeal No. 2058580)
(JCN: 2022001737)

RENEE J. ORR,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner ACNR Resources, Inc.1 (“ACNR”) appeals the November 18, 2022, order
of the Workers’ Compensation Board of Review (“Board”). Respondent Renee J. Orr filed
a timely response.2 ACNR did not file a reply. The issue on appeal is whether the Board
erred in affirming the Office of Judges’ (“OOJ”) order which reversed the claim
administrator’s rejection of the claim.

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 Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

On July 26, 2021, Ms. Orr suffered a workplace injury to her left ankle when she
stepped in a hole and twisted her ankle while taking out the trash. She was seen by Kyle
Hurst, M.D., the same day as her injury. Dr. Hurst found that Ms. Orr had swelling and
pain in her left ankle, but no loss of function. A left ankle x-ray was performed, which
revealed a circumscribed subchondral lucency at the medial talar dome and degenerative

1
For reasons not readily apparent in the appendix record, the petitioner has
substituted “Harrison County Coal Resources, Inc.” for the employer that was identified
below as “ACNR Resources, Inc.” Consistent with the action of the Supreme Court of
Appeals of West Virginia in Delbert v. Murray American Energy, Inc., __ W. Va. __, __
n.1, 880 S.E.2d 89, 92 n.1 (2022), we use the name of the employer as designated in the
order on appeal: ACNR Resources, Inc.
2
ACNR is represented by Aimee M. Stern, Esq. Ms. Orr is represented by J.
Thomas Greene, Jr., Esq. and T. Colin Greene, Esq.

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changes with no evidence of fracture. A left foot x-ray was performed, which revealed mild
degenerative changes. Dr. Hurst diagnosed Ms. Orr with a left ankle sprain.

Ms. Orr reported to Dr. Hurst that she had a previous work-related injury to her left
ankle on September 28, 2017. Ms. Orr’s 2017 injury was held compensable for a sprain of
unspecified ligament of the left ankle. She underwent surgery in 2018 to repair ligaments
in her left ankle. Ms. Orr received a 3% permanent partial disability award related to her
2017 compensable left ankle injury.3

Ms. Orr was seen at MedExpress on July 29, 2021, for moderate-to-severe sharp,
constant pain in her left ankle. Ms. Orr was examined and found to have decreased range
of motion, swelling, and pain. She was diagnosed with a sprain of an unspecified ligament
in the left ankle and restricted from returning to work. Ms. Orr returned to MedExpress on
August 4, 2021, complaining of constant, moderate, throbbing pain. On August 4, 2021,
Ms. Orr attempted to return to work, but she was sent home and advised to be seen by her
healthcare provider due to her ankle injury. Ms. Orr returned to MedExpress on August 5,
2021, complaining of pain, which worsened with movement and weight bearing, as well as
swelling.

The claim administrator issued an order dated August 11, 2021, rejecting the claim
on the basis that it was a recurrence of her 2017 injury. Ms. Orr protested this order. Ms.
Orr was seen by Dr. Fazalare on August 12, 2021, and October 27, 2021. Ms. Orr
complained of constant, moderate, sharp pain, and swelling. On exam, Dr. Fazalare found
dorsiflexion, plantarflexion, eversion, and inversion to be mildly stiff and painful. Dr.
Fazalare ordered an MRI, which showed stable post-operative changes at the lateral ankle
ligament complex with no evidence of a recurrent ligament tear, and stable degenerative
change of the medial talar dome. Dr. Fazalare diagnosed Ms. Orr with degenerative joint
disease.

On June 29, 2022, the OOJ issued an order reversing the claim administrator’s
denial of the claim and holding the claim compensable for left ankle sprain. The OOJ found
that Ms. Orr had established that she had a new compensable ankle injury rather than an
aggravation of her previous compensable ankle injury. The Board issued an order dated
November 18, 2022, affirming the OOJ’s order. ACNR 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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One month prior to her 2021 work-related injury, Ms. Orr returned to Joseph
Fazalare, M.D., the surgeon who performed her 2018 surgery. Ms. Orr complained of pain
and reported that her ankle felt unstable. A left ankle MRI found mild swelling and
degenerative changes. Dr. Fazalare diagnosed Ms. Orr with ankle pain.
2
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.

Duff v. Kanawha Cnty. Comm’n, 247 W. Va. 550, __, 882 S.E.2d 916, 921 (Ct. App. 2022).

On appeal, ACNR argues that the fact that Ms. Orr experienced the same symptoms
before and after the alleged date of injury and no acute injury was documented on her
diagnostic testing indicates that Ms. Orr sustained an aggravation of her 2017 compensable
injury, rather than a new injury. The employer further argues that the fact that treatment
for Ms. Orr’s 2021 injury was paid by the claim administrator in her 2017 claim, is an
indication that this is an aggravation of Ms. Orr’s 2017 injury rather than a new injury. We
disagree.

The OOJ found that there was no evidence to suggest that Ms. Orr’s injury did not
occur the way she reported it and that a preponderance of the evidence supported a finding
that Ms. Orr suffered a new injury rather than an aggravation of her old injury. The OOJ
further found that the fact that treatment for the new injury had been paid under the 2017
claim is not dispositive because Ms. Orr did not file for a reopening of her 2017 claim;
rather, it was the claim administrator that chose to pay for Ms. Orr’s treatment under the
2017 claim.

Upon review, we conclude that the OOJ, as affirmed by the Board, was not clearly
wrong in finding that Ms. Orr sufficiently established that she suffered an injury to her
ankle on July 26, 2021. As the OOJ noted, a prior injury to a body part does not preclude
a subsequent injury to that body part from being compensable when a preponderance of
the evidence shows that the subsequent injury occurred in the course of and as a result of
covered employment. Further the OOJ did not err in finding that the claim administrator’s
choice to pay for the treatment of Ms. Orr’s 2021 injury using benefits under her previous
2017 claim is not dispositive in this case.

Finding no error in the Board’s November 18, 2022, order, we affirm.

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Affirmed.

ISSUED: May 22, 2023

CONCURRED IN BY:

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

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