                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

TERESA G. FIFE,                                                                         FILED
Claimant Below, Petitioner                                                          November 1, 2019
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
vs.)   No. 18-0763 (BOR Appeal No. 2052621)                                          OF WEST VIRGINIA
                   (Claim No. 2017015187)

SHOE SHOW, INC.,
Employer Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Teresa G. Fife, by Counsel Gregory S. Prudich, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). Shoe Show, Inc., by
Counsel Lindsay S. Brennan, filed a timely response.

         The issue on appeal is the authorization for medical treatment. The claims administrator
denied Ms. Fife’s request for a total knee replacement on December 6, 2017. The Workers’
Compensation Office of Judges (“Office of Judges”) affirmed the claims administrator’s decision
in an Order dated February 16, 2018. This appeal arises from the Board of Review’s Final Order
dated August 1, 2018, in which the Board of Review affirmed the decision of the Office of Judges.
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. Fife indicated in her Employees’ and Physicians’ Report of Occupational Injury or
Disease that on December 13, 2016, she slipped and fell over boxes while working for Shoe Show,
Inc. She sought medical treatment at Princeton Community Hospital. During treatment, Ms. Fife
reported that she had injured the same knee a few months earlier. An x-ray of her right knee showed
mild hypertrophic degenerative bony changes and narrowing on the medial femorotibial joint
space, progressed in the interval. The X-ray also showed soft tissue swelling, but no fracture. The
treating physician indicated that the injury on December 13, 2016, aggravated Ms. Fife’s prior
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knee injury. On December 22, 2016, the claims administrator held the claim compensable for right
knee strain.

        On January 23, 2017, Ms. Fife sought treatment with Gary McCarthy, M.D., from Bluefield
Orthopedics. He treated her with a cortisone injection to her right knee. Ms. Fife returned to Dr.
McCarthy on February 13, 2017, and reported that the injection helped for a little while. Dr.
McCarthy diagnosed Ms. Fife with a tear of the medial meniscus of the right knee. She underwent
a right knee MRI on April 12, 2017.

        On April 21, 2017, Ms. Fife was seen by Dr. McCarthy to discuss the results of her MRI.
The MRI revealed moderate degenerative changes with joint space narrowing and osteophyte
formation predominately involving the medial compartment. The MRI did not visualize the body
of the medial meniscus, but the posterior horn of the medial meniscus was small. The radiologist
conducting the study stated that the findings were compatible with a medial meniscus tear. Dr.
McCarthy’s assessment/plan was for Ms. Fife to continue her home exercise program.

       Dr. McCarthy treated Ms. Fife again on May 22, 2017. There was tenderness of the medial
femoral condyle, lateral joint line, medial joint line, medial tibial plateau, lateral femoral condyle
and lateral tibial plateau. The assessment was idiopathic osteoarthritis. Dr. McCarthy
recommended a total knee replacement. On May 23, 2017, Dr. McCarthy requested authorization
for a total knee replacement and the addition of idiopathic osteoarthritis as a compensable
diagnosis.

       Ms. Fife was referred for an independent medical evaluation by Prasadarao B. Mukkamala,
M.D. In his report dated September 21, 2017, he opined that Ms. Fife continues to have significant
symptoms with relation to the right knee, and her ongoing symptoms are causally related to
noncompensable underlying preexisting degenerative arthrosis. Dr. Mukkamala diagnosed Ms.
Fife with sprain/contusion of the right knee and stated that she had reached her maximum degree
of medical improvement. It was Dr. Mukkamala’s professional opinion that the total knee
replacement was requested to address preexisting noncompensable arthritis and is not required
because of the compensable injury.

         Ms. Fife testified at deposition on September 22, 2017, that she had worked for Shoe Show
for twenty-eight years. As a manager, her responsibility was to help unload trucks, move
merchandise, and stock, all while constantly walking. She stated that she had no prior pain, issues,
or limitations with her right knee before her compensable injury of December 13, 2016. She
testified that her knee was not working and she missed a lot of work due to her injury. She also
testified that she only had one prior workers’ compensation claim for her back and shoulder.

       Dr. McCarthy was also deposed on September 22, 2017. When asked why Ms. Fife
required a total knee replacement, Dr. McCarthy responded:

         [w]ell, in addition to her meniscal tear, she has joint space narrowing with
         osteophyte formation. She has a degenerative marrow signal in that part of the
         knee. Now if I was just to treat the meniscal tear, it would probably be
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         unsuccessful. In other words, she would still complain of pain over the medial
         side because of those degenerative changes.

Dr. McCarthy further testified that he relates the meniscal tear to her work-related fall. He stated
that the osteoarthritis in the knee was probably preexisting. He testified that her problem is
compounded in that she has a meniscal tear on a degenerative knee in the medial compartment.
Dr. McCarthy was of the opinion that if you do not treat everything, then you are not going to get
a good result. He testified that but for the injury of December 13, 2016, Ms. Fife would not need
a total knee replacement. He stated that without surgery, she could expect deterioration.

        Ms. Fife’s prior medical records and the workers’ compensation claim index demonstrate
prior right knee injuries and diagnoses of preexisting degenerative osteoarthritis of the right knee.
A medical report dated January 22, 2004, from Robert P. Kropac, M.D., of the Orthopedic Center
of the Virginias, indicated a diagnosis of contusion of the right knee superimposed on preexisting
degenerative arthritis and patellofemoral chondromalacia of the right knee. On April 3, 2008, Ms.
Fife was treated at Bluefield Regional Medical Center for right knee pain and left heel pain after
losing her balance and sliding down a ladder. The diagnoses were right knee arthralgia with
crepitus with possible small effusion and left foot and heel spur with pain and contusion.

        An expedited hearing was held on October 12, 2017, to protest the June 19, 2017, Order of
the claims administrator denying the addition of osteoarthritis as a compensable condition and
denying the authorization for a right knee replacement. By Decision dated November 7, 2017, the
Office of Judges remanded the claim to the claims administrator for a determination to be made as
to whether the condition of tear of medial meniscus of the right knee is a compensable condition
in the claim. Based upon its finding in that regard, it also should be determined whether the
treatment request should be granted for a total knee replacement. By Order of the claims
administrator dated December 6, 2017, the request to update the compensable conditions to include
meniscal tear was conditionally accepted.1 On the same date, in a separate Order, the claims
administrator denied the request to treat the conditionally approved condition of meniscal tear
because a total knee replacement is not medically necessary to treat a meniscal tear and it is
unrelated to the compensable condition. The Office of Judges reasoned that the request for a total
knee replacement is to treat the idiopathic osteoarthritis/degenerative conditions, not to repair the
conditionally accepted meniscal tear. Ms. Fife protested the claims administrator’s Order.

         In a Decision dated February 16, 2018, the Office of Judges concluded that Ms. Fife failed
to show that the requested total knee replacement is medically related and reasonably required to
treat the compensable condition of meniscal tear. The Office of Judges relied upon West Virginia
Code of State Rules § 85-20-21 (2006), and stated that the Rule provides that the preexisting
condition must aggravate the compensable injury for treatment of the preexisting condition to be
authorized. The Office of Judges reasoned that regardless of whether she was symptomatic or not
at the time of the December 13, 2016, right knee injury, the evidence shows that the preexisting

1
 The request to update the compensable conditions was conditionally accepted to include meniscal
tear because of an inability to obtain medical records from Princeton Community Hospital due to
Ms. Fife’s failure to provide a medical records release.
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osteoarthritis is not aggravating the compensable meniscal tear. In this case, the compensable
injury is aggravating Ms. Fife’s preexisting osteoarthritis. The Office of Judges concluded that the
preponderance of the evidence indicates that she has not shown that the claims administrator erred
in denying her request for total knee replacement. The Board of Review adopted the findings of
fact and conclusions of law of the Office of Judges and affirmed its decision on August 1, 2018.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. West Virginia Code of State Rules § 85-20-21) states, “[p]re-
existing conditions which prevent recovery but do not aggravate the compensable injury shall not
be covered.” The Office of Judge determined that Ms. Fife’s preexisting osteoarthritis is not
aggravating her compensable condition. The Board of Review did not err in affirming that the total
knee replacement should not be authorized because it is not medically related and reasonably
required treatment for the compensable condition.

        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 1, 2019

CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison

DISSENTING:
Justice Margaret L. Workman




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