                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                     FILED
                                                                                 September 12, 2016

KIMBERLY A. BANE,                                                              RORY L. PERRY II, CLERK

                                                                             SUPREME COURT OF APPEALS

Claimant Below, Petitioner                                                       OF WEST VIRGINIA



vs.)   No. 15-0805	 (BOR Appeal No. 2050252)
                   (Claim No. 2013034395)

HEALTHSOUTH CORPORATION,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Kimberly A. Bane, by Robert Stultz, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Healthsouth Corporation, by T.
Jonathan Cook, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated July 29, 2015, in which
the Board affirmed a February 19, 2015, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s March 5, 2014, decision
denying a request to add a tear of the medial cartilage or meniscus of the knee, pain involving the
lower leg, and osteoarthrosis as compensable components of Ms. Bane’s claim for workers’
compensation benefits. The Court has carefully reviewed the records, written arguments, and
appendices contained in the briefs, and the case is mature for consideration.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

       Ms. Bane injured her left knee on June 17, 2013, while assisting a patient in the course of
her employment as a rehabilitation technician. She filed an application for workers’
compensation benefits and the claim was subsequently held compensable for a left knee sprain.
Approximately two weeks after the compensable injury, a left knee MRI was performed which
revealed the presence of advanced arthritic changes throughout the joint. Additionally, the MRI
revealed a complex tear of the posterior horn of the medial meniscus.
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        Following the injury, Ms. Bane sought treatment with Edward McDonough, M.D., whose
July 23, 2013, treatment note revealed a diagnosis of osteoarthritis in the left knee and a
degenerative tear of the left medial meniscus. Dr. McDonough authored a diagnosis update
request on February 24, 2014, in which he listed Ms. Bane’s primary diagnosis as a tear of the
cartilage or meniscus of the left knee, and her secondary diagnoses as joint pain in the lower leg
and unspecified osteoarthrosis. On March 5, 2014, the claims administrator denied Dr.
McDonough’s request to add a tear of the cartilage or meniscus of the left knee, pain involving
the lower leg, and osteoarthritis as compensable diagnoses.

        Following the claims administrator’s rejection of Dr. McDonough’s request to add
additional diagnoses as compensable components of Ms. Bane’s claim, Jonathan Luchs, M.D.,
performed an age of injury analysis utilizing the findings of the June 30, 2013, left knee MRI.
Dr. Luchs opined that the MRI revealed a frayed degenerative tear of the medial meniscus with
osteoarthropathy throughout the joint. He further opined that the findings of the June 30, 2013,
left knee MRI are all chronic and degenerative in nature.

       The Office of Judges affirmed the March 5, 2014, claims administrator’s decision in its
Order dated February 19, 2015. The Board of Review affirmed the reasoning and conclusions of
the Office of Judges in its Order of July 29, 2015. On appeal, Ms. Bane asserts that the evidence
of record demonstrates that the requested additional diagnoses should be added as compensable
components of her claim.

        The Office of Judges noted that in a prior decision dated January 22, 2014, it denied a
request from Dr. McDonough for authorization of arthroscopic surgery aimed at repairing the
torn meniscus in the left knee based upon a finding that there is insufficient medical evidence
linking the surgical procedure at issue to the compensable injury. Further, the Office of Judges
noted that Dr. Luchs’s age of injury analysis attributed the findings of the June 30, 2013, MRI,
including the torn meniscus, to chronic degenerative changes. The Office of Judges then found
that the diagnosis update request provide by Dr. McDonough did not explain how the diagnoses
listed in the request are causally related to the compensable injury. Finally, the Office of Judges
concluded that in the absence of narrative reasoning linking the requested diagnoses to the
compensable injury, the record contains insufficient evidence to allow the addition of the
requested diagnoses as compensable components of Ms. Bane’s claim for workers’
compensation benefits.

        We agree with the reasoning and conclusions of the Office of Judges as affirmed by the
Board of Review. All of the medical evidence of record, including the treatment notes of the
physician requesting the addition of the additional diagnoses as compensable components of the
claim, characterized the meniscus tear as degenerative in nature and characterized the rest of Ms.
Bane’s symptoms as related to arthrosis. As was noted by the Office of Judges, none of the
medical evidence of record links the requested diagnoses to the compensable injury.

        For the foregoing reasons, we find that the decision of the Board of Review is not in clear
violation of any constitutional or statutory provision, nor is it clearly the result of erroneous
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conclusions of law, nor is it based upon a material misstatement or mischaracterization of the
evidentiary record. Therefore, the decision of the Board of Review is affirmed.


                                                                                    Affirmed.

ISSUED: September 12, 2016

CONCURRED IN BY:
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING:
Chief Justice Menis E. Ketchum




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