                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

KAREN M. LEMASTER,                                                                  FILED
                                                                                   June 22, 2016
Claimant Below, Petitioner                                                    RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

                                                                                OF WEST VIRGINIA

vs.)   No. 15-0757	 (BOR Appeal No. 2050027)
                   (Claim No. 2014005218)

APPLE VALLEY WASTE SERVICES, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Karen M. Lemaster, by Robert Stultz, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Apple Valley Waste Services, Inc., by
Alyssa Sloan, its attorney, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated July 6, 2015, in which
the Board affirmed a November 26, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s May 23, 2014,
decision denying a request to add chondromalacia and degenerative arthritis of the left knee as
additional compensable diagnoses, denying a request for authorization of one Synvisc injection,
and denying a request for authorization of additional temporary total disability 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. Lemaster injured her left knee on August 5, 2013, when she sustained a twisting-type
injury while exiting a vehicle in the course of her employment. Her claim for workers’
compensation benefits was subsequently held compensable for a left knee strain. In October of
2013, Ms. Lemaster sought treatment with Bruce Edwards, M.D. He diagnosed her with
degenerative arthritis of the left knee and chondromalacia, and opined that she should not return
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to work pending further evaluation. Dr. Edwards later opined that Ms. Lemaster’s current
condition is the result of pain and inflammation arising from the August 5, 2013, injury. Dr.
Edwards further stated that the diagnosis of degenerative arthritis refers to new-onset crepitation
in the patellofemoral joint, which Ms. Lemaster denies experiencing prior to the August 5, 2013,
injury. On March 1, 2014, Dr. Edwards filed a request for authorization of one Synvisc injection
for the purpose of treating Ms. Lemaster’s pain. In the same document, Dr. Edwards also
indicated that Ms. Lemaster is temporarily totally disabled. On March 10, 2014, Dr. Edwards
completed a diagnosis update request listing Ms. Lemaster’s primary diagnosis as
chondromalacia and her secondary diagnosis as degenerative arthritis of the knee.

        On March 20, 2014, Robert Smith, M.D., performed an orthopedic evaluation. He opined
that the chondromalacia and subluxation of the patella revealed via an MRI performed on
January 29, 2014, were not caused by the August 5, 2013, injury because the record indicates
that Ms. Lemaster did not strike her knee during the incident. Dr. Smith further opined that Ms.
Lemaster does possess anatomical factors which would contribute to a finding of degenerative
changes in the lateral facet of the knee, which are associated with chondromalacia. He also stated
that the diagnosis of degenerative changes represents an incidental finding which is unrelated to
the August 5, 2013, injury. Additionally, Dr. Smith indicated that the only diagnosis arising from
the August 5, 2013, injury is a left knee sprain. He opined that the request for authorization of a
Synvisc injection arises from the treatment of non-work-related degenerative disease and is
unrelated to the August 5, 2013, injury. Finally, Dr. Smith authored a statement indicating that
Ms. Lemaster is capable of returning to work at full-duty.

        On May 23, 2014, the claims administrator denied Dr. Edwards’s request for
authorization of one Synvisc injection. In the same decision, the claims administrator denied Dr.
Edwards’s request to add chondromalacia and degenerative arthritis of the left knee as
compensable diagnoses. Also in its May 23, 2014, decision, the claims administrator denied a
request from Dr. Edwards for additional temporary total disability benefits.1 In its Order
affirming the claims administrator’s decision, the Office of Judges held that the diagnoses of
chondromalacia and degenerative arthritis of the left knee are not compensable, the request for
authorization of a Synvisc injection arises from the treatment of non-compensable diagnoses, and
the request for additional temporary total disability benefits also arises from the treatment of
non-compensable diagnoses. The Board of Review affirmed the reasoning and conclusions of the
Office of Judges in its decision dated July 6, 2015. On appeal, Ms. Lemaster asserts that the
diagnoses of chondromalacia and degenerative arthritis of the left knee should be added as
compensable diagnoses because her treating physician, Dr. Edwards, is of the opinion that the
diagnoses arise from the August 5, 2013, injury. Further, she asserts that she is entitled to
authorization of the requested Synvisc injection because Dr. Edwards has opined that it is
medically necessary and reasonably required for the treatment of the August 5, 2013, injury.
Finally, Ms. Lemaster asserts that the evidence of record demonstrates that she is entitled to
additional temporary total disability benefits.


1
 Temporary total disability benefits were previously authorized from October 4, 2013, through
January 17, 2014.
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        Regarding the request to add chondromalacia and degenerative arthritis as compensable
components of the claim, the Office of Judges found that Dr. Edwards’s opinion that the
diagnoses are work-related is not persuasive. In that regard, the Office of Judges found that the
conclusions expressed by Dr. Smith are persuasive. In particular, the Office of Judges noted that
Dr. Smith opined that the diagnoses of chondromalacia and degenerative changes are unrelated
to the August 5, 2013, injury. The Office of Judges further noted that Dr. Smith opined that the
request for authorization of a Synvisc injection is unrelated to the August 5, 2013, injury.
Finally, the Office of Judges noted that Dr. Smith opined that Ms. Lemaster can return to full-
duty employment. Based upon Dr. Smith’s conclusions, the Office of Judges determined that the
diagnoses of chondromalacia and degenerative arthritis of the left knee are unrelated to the
August 5, 2013, injury. Further, the Office of Judges determined that the requests for
authorization of one Synvisc injection and additional temporary total disability benefits arise
from the treatment of the non-compensable diagnoses of degenerative arthritis of the left knee
and chondromalacia, and are therefore also unrelated to the August 5, 2013, injury. We agree
with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review.

        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
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: June 22, 2016


CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Allen H. Loughry II

DISSENTING:
Justice Margaret L. Workman




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