                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             November 4, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
JEFFREY J. RIPPLE,                                                            OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 15-0149 (BOR Appeal No. 2049821)
                   (Claim No. 2009058367)

ESSROC CORPORATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Jeffrey J. Ripple, by Lawrence E. Sherman Jr., his attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. Essroc Corporation, by
Maureen Kowalski, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated January 28, 2015, in
which the Board affirmed a September 3, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 9, 2013,
decision granting Mr. Ripple a 15% permanent partial disability award for his left knee injury.
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.

        Mr. Ripple worked as a laborer for Essroc Corporation. Dating as far back as 2007, Mr.
Ripple had significant non-occupational left knee problems. In May of 2007, John A. Draper,
M.D., performed an arthroscopic surgery which revealed a complex tear of the posterior horn of
the lateral meniscus. Within two weeks of the procedure, Mr. Ripple contracted a Methicillin­
resistant Staphylococcus aureus (MRSA) infection that required an arthroscopic wash and a two
to three month course of intravenous antibiotics. After he recovered, Mr. Ripple returned to
work.
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        On August 20, 2008, Mr. Ripple reinjured his left knee while stepping off a piece of
equipment at work. Soon afterwards, an MRI was taken of Mr. Ripple’s left knee which revealed
a tear of the medial meniscus. The report noted that the lateral meniscus, anterior cruciate
ligament, and posterior cruciate ligament were still intact. The claims administrator held Mr.
Ripple’s claim compensable, and he received a course of conservative treatment. The
conservative treatment, however, did not improve his symptoms, and in the beginning of 2009,
Dr. Draper performed another arthroscopic surgery on Mr. Ripple’s left knee which included a
lateral meniscectomy. The surgery revealed that there was a complex tear of the posterior horn of
the lateral meniscus.

        The surgery, however, did not alleviate Mr. Ripple’s pain. Mr. Ripple returned to work,
but in August of 2009, an MRI of the left knee revealed osteoarthritis of the patella femoral joint.
Daniel Zimet, M.D., evaluated Mr. Ripple at this time and found that he had 1% whole person
impairment related to the arthroscopic procedure authorized under this claim. Mr. Ripple was not
granted an award based on Dr. Zimet’s recommendation because soon afterwards Dr. Draper
requested authorization for a total left knee replacement. X-rays were taken of Mr. Ripple’s left
knee at this time which revealed spurs along the medial and lateral aspects of the left knee as
well as moderate joint space narrowing in both compartments of the knee. Dr. Draper performed
the total knee replacement surgery on April 12, 2010. The postoperative notes indicated that
there was significant deterioration of the cartilage in all three compartments of his left knee.

        Mr. Ripple returned to work after recovering from his knee replacement. However, he
continued to have pain in his left knee, and in the beginning of 2011, Dr. Draper performed a
revision of his knee replacement to realign the tibial component. Over a year after this surgery,
P. Kent Thrush, M.D., evaluated Mr. Ripple. He determined that Mr. Ripple had reached his
maximum degree of medical improvement. Dr. Thrush found that he had 30% whole person
impairment under the American Medical Association’s Guides to the Evaluation of Permanent
Impairment (4th ed. 1993) because of his total left knee replacement. Dr. Thrush, however, noted
that Mr. Ripple had significant pre-existing left knee problems which contributed to his total
knee replacement. He apportioned 15% impairment to Mr. Ripple’s pre-existing condition and
15% impairment to his compensable left knee injury. On August 9, 2013, the claims
administrator granted Mr. Ripple a 15% permanent partial disability award based on Dr.
Thrush’s opinion. Alex Ambroz, M.D., also evaluated Mr. Ripple. Based on Dr. Thrush’s
calculations, he found that Mr. Ripple had 30% whole person impairment under the American
Medical Association’s Guides. However, he did not believe Dr. Thrush’s apportionment was
justified. Dr. Ambroz mistakenly believed that the 1% impairment rating found by Dr. Zimet
related to Mr. Ripple’s pre-existing left knee problems, and he apportioned the remaining 29%
whole person impairment rating to Mr. Ripple’s compensable left knee injury. On September 3,
2014, the Office of Judges affirmed the claims administrator’s decision. The Board of Review
affirmed the Order of the Office of Judges on January 28, 2015, leading Mr. Ripple to appeal.

       The Office of Judges concluded that the 15% permanent partial disability award was
appropriate. The Office of Judges based its determination on the evaluation of Dr. Thrush. It
found that Dr. Thrush’s recommendation was supported by the medical evidence of Mr. Ripple’s
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pre-existing left knee degeneration. The Office of Judges also considered the evaluation of Dr.
Ambroz but it found that he mistakenly apportioned 1% impairment to Mr. Ripple’s pre-existing
surgery even though it was apparent that Dr. Zimet’s impairment recommendation related to the
compensable injury of this claim. The Office of Judges ultimately disregarded Dr. Ambroz’s
opinion because it found that he did not give proper consideration to Mr. Ripple’s pre-existing
conditions and his 2007 surgery. The Board of Review adopted the findings of the Office of
Judges and affirmed its Order.

        We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Mr. Ripple has not demonstrated that he is entitled to any more than a 15% permanent
partial disability award related to his compensable left knee injury. The evaluation of Dr. Thrush
shows that Mr. Ripple has 30% impairment of the left knee, but Dr. Thrush apportioned 15% to
his compensable injury. The evidence in the record shows that Mr. Ripple had significant left
knee problems which eventually required him to undergo an arthroscopic repair of his lateral
meniscus. The impairment rating and apportionment in Dr. Thrush’s report is consistent with this
evidence and the directives of the American Medical Association’s Guides. The Office of Judges
was within its discretion in relying on his report. It was also within its discretion in disregarding
Dr. Ambroz’s report because he did not take sufficient account of Mr. Ripple’s pre-existing left
knee problems.

        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: November 4, 2015

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




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