                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                                March 4, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
DAVID R. MARCUM JR.,                                                           OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0562 (BOR Appeal No. 2049128)
                   (Claim No. 2013012422)

ARACOMA COAL COMPANY, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
        Petitioner David R. Marcum Jr., by John C. Blair, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Aracoma Coal Company, Inc., by Sean
Harter, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated May 21, 2014, in which
the Board affirmed a December 4, 2013, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s January 14, 2013, decision
which denied a right knee arthroscopy. In its Order, the Office of Judges also affirmed the claims
administrator’s May 6, 2013, decision which closed the claim for 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.

       Mr. Marcum, a roof bolter, was injured in the course of his employment on November 8,
2012, when he fell out of a fork lift. He was taken to Logan Regional Medical Center by
ambulance that day. On examination, the right knee was limited in range of motion and was
swelled. A right knee x-ray was normal, and he was diagnosed with internal derangement of the
knee. Mr. Marcum began treatment with Robert McCleary, D.O., shortly after his injury. Dr.
McCleary initially diagnosed a right knee sprain and recommended physical therapy, which Mr.
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Marcum completed with no improvement. The claim was held compensable for sprain of
unspecified site of the knee and leg. A right knee MRI taken in November of 2012 revealed no
evidence of internal derangement. Dr. McCleary reviewed the MRI and opined that the claimant
had a medial meniscus tear. He recommended a right knee arthroscopy and requested
authorization.

        Ronald Fadel, M.D., performed a record review and stated that the previous history of
meniscal pathology and joint degeneration strongly suggest a tear, if one was present at all, may
be degenerative in nature rather than acute and traumatic. He opined that compelling and
supporting indications for the requested surgery, as related to the compensable injury, are not
present. Mr. Marcum continued to be treated by Dr. McCleary, who released him to return to
work on February 22, 2013. Shortly thereafter, Mr. Marcum underwent a right knee arthroscopic
partial menisectomy. He testified in a deposition that he had no right knee problems prior to his
compensable injury. He stated that Dr. McCleary only released him to return to work so that he
could get the surgery under his private health insurance, which would not cover the surgery if he
was still under workers’ compensation. He did not actually return to work until April of 2013,
after he had right knee surgery.

        An independent medical evaluation was performed by Marsha Bailey, M.D., on June 11,
2013. Dr. Bailey diagnosed chronic bilateral knee pain due to bilateral knee degenerative joint
disease and arthrosis. She stated that the compensable injury was a simple sprain/strain. She
noted that the right knee MRI radiologist specifically stated that there were no meniscal tears,
cartilage defects, or joint effusion. Dr. Bailey opined that Mr. Marcum had reached maximum
medical improvement for the compensable knee sprain, and his ongoing complaints were solely
the result of his degenerative joint disease.

        The claims administrator denied authorization of the right knee arthroscopy on January
14, 2013. On May 6, 2013, the claims administrator closed the claim for temporary total
disability benefits. The Office of Judges affirmed the decisions in its December 4, 2013, Order. It
found that Mr. Marcum sustained a right knee sprain as a result of his compensable injury. An
MRI taken shortly after the injury occurred showed no internal derangement, and the only
abnormality noted was consistent with intrasubstance degeneration. The Office of Judges found
nothing in the record indicating that the treating physician, Dr. McCleary, explained why the
postural horn tear, for which Mr. Marcum had the arthroscopy, was the result of the compensable
injury and not the degenerative changes seen on the MRI. The Office of Judges found that there
was not sufficient evidence from the treating physician to demonstrate that the need for a right
knee arthroscopy was the result of the compensable injury.

        In regard to the closing of the claim for temporary total disability benefits, the Office of
Judges found that Mr. Marcum was released to return to work on February 22, 2013. He
subsequently underwent the right knee arthroscopy which caused him to be temporarily and
totally disabled. However, it was determined that there was not sufficient evidence that he was
temporarily and totally disabled after February 22, 2013, as a result of the compensable injury.
The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges
and affirmed its Order on May 21, 2014.
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        On appeal, Mr. Marcum argues that the Office of Judges’ decision incorrectly concluded
that Dr. McCleary failed to explain how the posterior horn tear was caused by the compensable
injury. Mr. Marcum asserted that this overly burdens him by requiring him to prove that the
injury was not due to the degenerative findings seen on an MRI. He further argued that Dr.
McCleary’s request for authorization for surgery indicates that he believes the injury is work-
related. Aracoma Coal Company, Inc., asserts that the MRI showed degenerative changes and no
indication of recent injury. Further, Drs. Fadel and Bailey both opined that Mr. Marcum’s right
knee problems are the result of degenerative changes, and Dr. McCleary failed to causally
connect the right knee problems to the compensable injury. After review, we agree with the
reasoning of the Office of Judges and the conclusions of the Board of Review. There is not
sufficient evidence in the record to support a causal connection between the compensable injury
and the meniscal tear for which Mr. Marcum underwent arthroscopic surgery. The surgery was
therefore properly denied. The claim was also properly closed for temporary total disability
benefits. Mr. Marcum was released to return to work on February 22, 2013. His subsequent
temporary total disability was the result of the unapproved arthroscopic surgery, not 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
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: March 4, 2015

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

Justice Brent D. Benjamin, disqualified




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