                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

RANDALL D. BARB,                                                                    FILED
                                                                                  August 26, 2016
Claimant Below, Petitioner                                                    RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

                                                                                OF WEST VIRGINIA

vs.) No. 15-0844        (BOR Appeal No. 2050190)
                          (Claim No. 2015010133)

UTZ QUALITY FOODS, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner, Randall D. Barb, by John H. Shumate, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Utz Quality Foods, Inc., by its
attorney, Jeffrey B. Brannon, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated July 29, 2015, in which
the Board affirmed the January 15, 2015, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s October 9, 2014, decision
rejecting the claim. 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. Barb worked for Utz Quality Foods, Inc., as a route salesman. On September 22,
2014, he was stocking shelves at one of the stores on his route when his right knee locked
causing him pain and difficulty getting up. He was evaluated by Patsy Fairchild, PAC, who
diagnosed sprained right knee. She referred him to physical therapy, for an MRI, and to S. Brett
Whitfield, M.D. Mr. Barb submitted a report of injury stating he injured his right knee when he
was squatting like a catcher, went to stand up, and his knee would not extend. The claims
administrator rejected the claim on October 9, 2014.



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        Prior to working for Utz Quality Foods, Inc., Mr. Barb sustained an injury to his right
knee on December 14, 2012, while working for his previous employer.1 That injury resulted in
Mr. Barb undergoing surgery to his right knee, including debridement of lateral meniscal tears
and microfracture for a full thickness cartilage defect of the lateral femoral condyle. Dr.
Whitfield performed the surgery on March 13, 2013, and Mr. Barb continued to treat with him
until September 3, 2013. At that time, Dr. Whitfield noted Mr. Barb had not experienced a
significant improvement with complaints of pain in the lateral aspect of the knee. An MRI that
was performed on August 27, 2013, showed no appreciable cartilage growth in the area of the
condylar defect in the lateral femoral condyle. Dr. Whitfield diagnosed continued right knee pain
with failure of growth from the microfracture and iliotibial band bursitis of the right knee. He
gave Mr. Barb a steroid injection to help with the pain. In his opinion, if Mr. Barb continued to
experience pain, he would need an osteochondral autograft transfer system procedure.

        Mr. Barb had evaluations by three different physicians as part of his claim with his
previous employer. On June 20, 2013, Prasadarao Mukkamala, M.D., evaluated Mr. Barb and
noted his chief complaint was right knee pain and weakness. Yogesh Chand, M.D., evaluated
Mr. Barb on February 17, 2014, and noted Mr. Barb reported constant pain throughout the knee
and stated that he used a brace sometimes. On March 20, 2014, Mr. Barb told Michael Condaras,
M.D., that he had constant pain in his knee and that his knee was aggravated by prolonged
standing or walking. He also stated that driving bothers his knee.

       The Office of Judges affirmed the claims administrator’s rejection of the claim on
January 15, 2015. It reviewed Mr. Barb’s hearing testimony and noted that on cross-examination
Mr. Barb changed his responses to the answers regarding the condition of his knee prior to
September 22, 2014. It noted that Mr. Barb initially testified his knee was fully functional before
September 22, 2014; however, he told Dr. Condaras in April of 2014 that he had constant pain in
his knee; had pain on the lateral aspect of the knee; and that prolonged standing, walking, or
driving aggravated the knee.

       The Office of Judges reviewed the surveillance video from the store where Mr. Barb was
working when he said he injured his knee on September 22, 2014. The video showed Mr. Barb
entering and exiting the store in the same manner, with no observable indications of pain. It also
showed Mr. Barb stocking the shelf. The Office of Judges found the video did not show him
walking with a limp or otherwise having trouble walking upon exiting the store. It found this
evidence to be persuasive.

        The Office of Judges did not find the medical evidence stating Mr. Barb sustained an
injury to his knee on September 22, 2014, to be persuasive considering Mr. Barb’s prior injury
regarding the same knee, the need for surgery due to that injury, and his continuing symptoms.
The Office of Judges determined Mr. Barb failed to show he injured his right knee in the course
of and as a result of his employment on September 22, 2014.


1
 This Court addressed the previous claim in its decision in Barb v. Multifresh, Inc./LWF EIN
Resources, LLC, No. 15-0267 (Feb. 4, 2016) (memorandum decision).
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        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges in affirming its Order on July 29, 2015. After review, we agree with the reasoning of the
Office of Judges and conclusions of the Board of Review. Mr. Barb sustained an injury to his
right knee on December 14, 2012, that required extensive surgery. He continued to have pain and
problems with activities of daily living due to that injury as documented by Dr. Condaras. Mr.
Barb failed to show he sustained an injury to his right knee on September 22, 2014.

        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: August 26, 2016

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

Justice Brent D. Benjamin, Not Participating




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