The Homer Laughlin China Company v. Kenneth Daugherty

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
THE HOMER LAUGHLIN CHINA COMPANY, July 1, 2024
Employer Below, Petitioner ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
v.) No. 24-ICA-13 (JCN: 2017018320)

KENNETH DAUGHERTY,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner The Homer Laughlin China Company (“HLCC”) appeals the December
12, 2023, order of the Workers’ Compensation Board of Review (“Board”). Respondent
Kenneth Daugherty filed a response.1 HLCC did not reply. The issue on appeal is whether
the Board erred in reversing the claim administrator’s order, which denied authorization
for a consultation with a podiatrist, Allison Sellers, DPM.

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 January 13, 2017, Mr. Daugherty presented to East Liverpool City Hospital ER.
Mr. Daugherty reported that he lifted something heavy at work and hurt his lower back and
that the lower back pain radiated down his right leg. The clinical impression was acute
lumbar strain. A lumbar spine x-ray was performed on the same day, revealing no acute
fracture and mild degenerative changes. Mr. Daugherty signed an Employees’ and
Physicians’ Report of Occupational Injury or Disease form dated January 13, 2017. The
physician’s portion of the form was not completed. Mr. Daugherty also signed an incident
report on the same day.

Mr. Daugherty was seen by John Capito, M.D., on January 23, 2017. Mr. Daugherty
complained of low back pain, which radiated down the right leg. Dr. Capito recommended
physical therapy (“PT”) and indicated that Mr. Daugherty may need a lumbar MRI if he
was not better following physical therapy. The claim administrator issued an order dated
February 3, 2017, which held the claim compensable for low back strain.

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HLCC is represented by Evan Kime, Esq. Mr. Daugherty is self-represented.

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On April 21, 2017, Mr. Daugherty followed up with Dr. Capito and he reported pain
in the left foot and his tailbone. Dr. Capito assessed back pain with secondary foot and left
leg pain. Mr. Daugherty returned on May 16, 2017, with continued back pain and left foot
pain. Dr. Capito referred Mr. Daugherty to a podiatrist. On July 10, 2017, Dr Capito
referred Mr. Daugherty to a pain clinic.

Mr. Daugherty was seen by Allison Sellers, DPM and Jeffrey Wilps, DPM at Valley
Foot and Ankle Care on May 19, 2017. Mr. Daugherty reported that he was injured at work
in January of the same year when moving a heavy box and felt instant pain in his heel and
back. Mr. Daugherty also reported that he had been seen by Mark Fye, M.D., who opined
that his foot pain was not caused by the back injury. Dr. Sellers and Dr. Wilps assessed
plantar fascial fibromatosis, pain in the left ankle and joints of the left foot, and plantar
fasciitis with possible tear. Mr. Daugherty received an injection into the left plantar fascia.
Dr. Sellers ordered an MRI.

On June 10, 2017, Mr. Daughtery underwent a left ankle MRI, revealing a contusion
versus nondisplaced fracture of the cuboid bone with associated bone marrow edema;
associated lateral soft tissue swelling; and acute and chronic plantar fasciitis at the
calcaneal insertion. On June 13, 2017, Mr. Daugherty returned for a follow-up and review
of the MRI. The MRI revealed a fracture of the left cuboid, and Mr. Daugherty was placed
in a below-the-knee walker. Dr. Sellers ordered a bone stimulator. Mr. Daugherty was seen
by Dr. Sellers on July 6, 2017, and reported that his plantar fasciitis was much improved,
and that PT had helped reduce his pain. Mr. Daugherty also reported that he continued to
have pain over the fracture site. Mr. Daugherty was advised to continue home stretching
exercises and ambulate with an insert in his cam boot.

Mr. Daugherty followed up with Dr. Sellers again on August 3, 2017. He reported
continued improvement with his foot pain, but that he had some increased ankle pain due
to immobilization in the cam boot. On August 31, 2017, Dr. Sellers stated that they would
try an interspace injection in two weeks if the forefoot pain did not resolve. On September
14, 2017, an injection was given into the first interspace on the left. Dr. Sellers stated that
if the pain did not resolve, an MRI would be ordered. On October 2, 2017, Mr. Daugherty
reported minimal improvement following the injection and Dr. Sellers ordered an MRI. Dr.
Sellers stated that she would refer Mr. Daugherty to a neurologist if the MRI was negative
because she could not rule out his back as the origin of the pain.

A left foot MRI was performed on October 7, 2017, revealing no evidence of any
fracture or soft tissue edema. It was noted that the heel and ankle were not included on the
exam of the foot, and as a result, the plantar fascia was not evaluated. On October 3, 2017,
Mr. Daugherty returned to Foot and Ankle Care and was evaluated by Dr. Wilps, who
opined that Mr. Daugherty was doing well and did not need treatment at that time. Mr.
Daugherty reported that he had generalized pain in the left foot and ankle when walking

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long distances. Dr. Wilps further opined that the symptoms were from generalized arthritic
problems and that Mr. Daugherty could return as needed for treatment.

A Diagnosis Update form dated October 27, 2017, was signed by Dr. Sellers, and
requested the addition of nondisplaced cuboid fracture, neuroma left foot, pain left foot and
ankle, and plantar fasciitis compensable conditions in the claim. Victoria Langa, M.D.,
issued a Record Review report dated December 27, 2017. She discussed the January 13,
2017, injury to Mr. Daugherty’s lower back. Dr. Langa also opined that all the treatment
Mr. Daugherty received for his left foot from Dr. Sellers was unrelated to the work incident
of January 13, 2017. Therefore, she recommended a denial of the request for a referral to a
podiatrist.

On April 5, 2019, Dr. Sellers evaluated Mr. Daugherty in a follow-up appointment.
Mr. Daugherty reported that he had ankle pain by the end of his workday. Dr. Sellers
advised him to continue ambulating in proper shoe gear with orthotics and stretching to
prevent recurrent plantar fasciitis. Dr. Sellers opined that Mr. Daugherty was likely
suffering from post-traumatic arthritis and he should continue with conservative treatment.

On January 28, 2020, Lawrence G. Karlock, DPM, evaluated Mr. Daugherty. Dr.
Karlock opined that Mr. Daugherty’s foot pain was directly related to the compensable
work injury on January 13, 2017, based upon the mechanism of injury that he described,
the MRI findings, and the subsequent reports and medical records from the podiatrists he
had seen. Dr. Karlock recommended that Mr. Daugherty’s left foot pain and cuboid fracture
be added to the workers’ compensation claim as a compensable condition. The claim
administrator issued an Order dated February 12, 2020, which added the conditions of left
foot pain and nondisplaced cuboid fracture of the left foot based upon Dr. Karlock’s report.

On October 25, 2022, Mr. Daugherty was seen by Eugene Bonaroti, M.D., for
lumbar and left leg pain. Dr. Bonaroti assessed pain in the left foot, left foot injury, and a
history of fracture. Dr. Bonaroti opined that Mr. Daugherty may have some element of
complex regional pain syndrome with swelling, temperature changes, and color changes.
Dr. Bonaroti recommended that Mr. Daugherty follow up with a podiatrist and with pain
management.

Kevin Smith, M.D., issued a “Medical Director Staffing report” dated November
21, 2022, addressing Dr. Bonaroti’s October 25, 2022, request for a referral to Dr. Sellers,
a podiatrist. Dr. Smith noted that nondisplaced fracture cuboid bone of the left foot was
added to the claim as a compensable condition on February 12, 2020. Dr. Smith stated that
the requested treatment was not supported by the “Official Disability Guidelines” for a
nondisplaced fracture cuboid bone of the left foot. Dr. Smith recommended a denial of the
requested treatment stating that the date of injury was over five years ago, and he opined
that a reasonable period had passed to allow for appropriate treatment of the allowed
condition of nondisplaced fracture cuboid bone of the left foot. Dr. Smith opined that Mr.

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Daugherty was being assessed and treated for the “non-allowed” conditions of left foot and
ankle primary arthritis. Dr. Smith opined that the requested treatment should be denied.

On November 22, 2022, the claim administrator issued an order denying
authorization for a consultation with a podiatrist, Dr. Sellers. Mr. Daugherty protested this
order. Mr. Daugherty underwent a left ankle MRI on April 4, 2023, revealing mild to
moderate tendinosis of the Achilles and a Kager fat pad edema.

On December 12, 2023, the Board reversed the claim administrator’s order. The
Board found that Mr. Daugherty has established that a podiatry consultation is medically
related and reasonably required for treatment of the compensable injury. HLCC 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:

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.

HLCC argues that the Board placed undue weight on the opinion of Dr. Bonaroti.
HLCC further argues that Mr. Daugherty has suffered another more recent workers’
compensation injury affecting his foot. HLCC also argues that Mr. Daugherty’s symptoms
are otherwise caused by noncompensable conditions. Finally, HLCC argues that the Board
overlooked “substantial conflicting evidence” including the opinion of Dr. Sellers. We
disagree.

The claim administrator must provide a claimant with medically related and
reasonably necessary treatment for a compensable injury. See West Virginia Code § 23-4-
3 (2005) and West Virginia Code of State Rules § 85-20 (2006).

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Here, the Board noted that Dr. Bonaroti’s request for a podiatry consultation was
based on the diagnoses of left foot pain and left foot injury with a history of fracture. The
Board further noted that the compensable conditions in this claim related to the left foot
for the compensable January 13, 2017, injury are left foot pain and nondisplaced fracture
cuboid bone of the left foot. Ultimately, the Board found that Mr. Daugherty had
established that a podiatry consultation was reasonable and necessary treatment for the
compensable injury in the instant claim.

Upon, review we find no merit in HLCC’s arguments that Mr. Daugherty should
not receive the requested referral because he has suffered another more recent workers’
compensation injury and his symptoms are otherwise caused by noncompensable
conditions as those arguments are not supported by the evidence of record. We also find
no merit in HLCC’s argument that the Board overlooked “substantial conflicting evidence”
as we find no such conflicting evidence in the record and HLCC failed to adequately
identify the alleged conflicting evidence.

Further, 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 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 finding that Mr. Daugherty has established that a
podiatry consultation is medically related and reasonably required for treatment of the
compensable injury.

Accordingly, we affirm the Board’s December 12, 2023, order.

Affirmed.

ISSUED: July 1, 2024

CONCURRED IN BY:
Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear

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