                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

KATHERINE HARPOLD,                                                                  FILED
Claimant Below, Petitioner
                                                                                 April 25, 2019
                                                                               EDYTHE NASH GAISER, CLERK
vs.)   No. 18-0730 (BOR Appeal No. 2052732)                                    SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
                   (Claim No. 2016031493)

CITY OF CHARLESTON,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Katherine Harpold, by Edwin H. Pancake, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. City of Charleston, by James W.
Heslep, its attorney, filed a timely response.

        The issues on appeal are additional compensable conditions and medical benefits. The
claims administrator denied a left knee arthroscopy and medial menisectomy on August 9, 2016.
On September 1, 2016, it denied authorization for a hinged knee brace. Finally, on October 20,
2016, the claims administrator denied the addition of left knee pain, medial meniscus tear of the
left knee, and bilateral knee primary osteoarthritis to the claim. The Office of Judges affirmed the
decisions in its February 23, 2018, Order. The Order was affirmed by the Board of Review on July
20, 2018.

        The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. 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. Harpold, a paramedic and firefighter, injured her left knee in the course of her
employment on June 6, 2016. The Employees’ and Physicians’ Report of Injury indicates Ms.
Harpold injured her left knee when she fell at a patient’s house. She was treated by William Casto,
D.O., who diagnosed pain in the lower leg joint. Ms. Harpold was taken off of work until
September 7, 2016. It was noted that the injury did not aggravate a prior injury or disease. The
Employers’ Report of Injury indicates Ms. Harpold injured her left knee when she fell while exiting
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a patient’s home to retrieve a stretcher. The employer questioned the injury and stated that light
duty work was available.

       Ms. Harpold has a history of left knee problems. On July 16, 2009, a left knee MRI showed
chondromalacia, irregularity and secondary degenerative changes in the medial femoral condyle,
and joint effusion. Ms. Harpold was treated by David Soulsby, M.D., on December 3, 2009. Dr.
Soulsby prescribed physical therapy for mild arthritis in the left knee. A December 9, 2009, report
from CAMC Physical Therapy and Sports Medicine indicates Ms. Harpold was referred for left
knee pain and arthritis. The therapist’s diagnoses were left knee pain and possible meniscus tear.

        A left knee MRI was taken on June 21, 2016, and showed high grade osteoarthritis of the
joint with severe loss of cartilage, a degenerative tear of the anterior horn and body of the medial
meniscus, and a moderately large knee joint effusion. X-rays of the left knee showed
multicompartmental osteoarthritis and chondromalacia, osteochondral changes in the medial
femoral condyle, and chronic findings. The claim was held compensable for unspecified internal
derangement of the knee on June 23, 2016.

         A July 7, 2016, treatment note by John Pierson, M.D., indicates Ms. Harpold was seen for
left knee pain that started after falling at a patient’s house. She stated that she had mild aching in
the knee prior to the injury but no real pain. Dr. Pierson diagnosed bilateral primary osteoarthritis
of the knee and left knee derangement of the anterior horn of the medial meniscus due to an old
tear or injury. Dr. Pierson noted that Ms. Harpold had tricompartmental disease on MRI. She also
had an obvious tear of the anterior horn of the medial meniscus which was likely contributing to
her new post-injury symptoms. Dr. Pierson opined that her meniscus tear symptoms were acute
because Ms. Harpold was having pain in the left knee only and only had mild pain preinjury. He
recommended a left knee arthroscopy with partial medial menisectomy.

        Dariene Burns, R.N., prepared a utilization review on July 18, 2016, in which she noted
that James Farrage, M.D., reviewed the case and opined that there was no apparent medical
necessity for arthroscopic surgery on the left knee as it pertained to the work-related injury. The
MRI showed severe tricompartmental degenerative changes and a chronic meniscus tear. There
was no evidence of acute internal derangement other than a reactive joint effusion resulting from
the compensable injury, which exacerbated the underlying conditions. Dr. Farrage recommended
using conservative treatment and opined that surgery would not alter the underlying disease
process. He concluded that if Ms. Harpold wished to proceed with arthroscopy, the surgery should
not be covered under her workers’ compensation claim.

        An August 3, 2016, treatment note by Dr. Pierson indicates Ms. Harpold reported increased
pain, stiffness, and locking of the knee. She stated that she required crutches due to her knee
locking up and giving way. She stated that she had none of these problems prior to the compensable
injury. Dr. Pierson diagnosed left knee medial meniscus tear and bilateral primary osteoarthritis of
the knees. He prescribed a hinged knee brace. Dr. Pierson noted that despite her significant
degenerative joint disease, Ms. Harpold now has symptoms of locking, catching, and giving way,
which were not present prior to the injury. Dr. Pierson opined that her current symptoms are the
result of the compensable injury and are unrelated to her preexisting osteoarthritis. He also opined
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that the medial meniscus tear is a direct result of the compensable injury. The claims administrator
denied a left knee arthroscopy with medial menisectomy on August 9, 2016.

        Thomas Loeb, M.D., performed a record review on August 29, 2016, in which he opined
that Ms. Harpold has a longstanding diagnosis of osteoarthritis in both knees. Her compensable
injury was a slip and fall with a blow to the anterior portion of the left knee. The injury resulted in
a contusion, and there was no new injury seen on MRI. Dr. Loeb opined that the hinged knee brace
was to treat left knee laxity, which was associated with the longstanding osteoarthritis. The brace
was necessary strictly for the preexisting arthritic condition, not the compensable injury.

        In an August 30, 2016, diagnosis update, Dr. Pierson requested that left knee pain, tear of
the medial meniscus of the left knee, and bilateral primary osteoarthritis be added to the claim. He
stated that since the compensable injury, Ms. Harpold has experienced catching, locking, and
giving way of her left knee which was not present before her compensable fall. He further opined
that she needs a left knee arthroscopy and partial medial menisectomy as a direct result of her
compensable injury. The claims administrator denied authorization for a hinged knee brace on
September 1, 2016. On October 20, 2016, it denied a left knee arthroscopy and medial
menisectomy as well as the addition of left knee pain, medial meniscus tear of the left knee, and
bilateral knee primary osteoarthritis to the claim.

        Ms. Harpold testified in a January 12, 2017, deposition that on the day of her injury, she
was carrying equipment into a patient’s house when she tripped, fell, and landed on her left knee.
She went home after her shift that day and though her knee was sore, she did not think it was
serious. The following day, her knee began catching, and she sought treatment with Dr. Casto, her
family physician. Ms. Harpold stated that she had no left knee injuries prior to her work-related
fall. She stated that she had knee surgery in ninth grade for osteochondritis dissecans, which is a
condition that requires a surgeon to insert a pin and chip to reattach a bone. Following that surgery,
she stated that she played soccer in high school and college and was also on the row team.
Additionally, she passed her fire department physical. Ms. Harpold testified that prior to the injury,
she had occasional aching in her knee but it did not affect her job performance.

        The Office of Judges affirmed the claims administrator’s decisions in its February 23, 2018,
Order. It found that Ms. Harpold suffered a left knee injury in 1998 which required surgery. She
was diagnosed with chondromalacia and arthritis in the left knee in 2009. A left knee MRI dated
June 21, 2016, showed high grade osteoarthritis of the knee joint with severe loss of cartilage in
all three compartments, a degenerative tear of the medial meniscus, and a moderately large joint
effusion. The Office of Judges found that a utilization review was conducted by Dr. Farrage, who
opined that a left knee arthroscopy and menisectomy were unnecessary as they would not alter the
course of her preexisting degenerative joint disease. He stated that the best course of treatment
would be conservative measures. The Office of Judges also noted that Dr. Loeb performed an
authorization request review in which he opined that Ms. Harpold has a longstanding diagnosis of
primary osteoarthritis in both knees. He stated that a hinged knee brace was unrelated to the
compensable injury and was only aimed at treating her preexisting osteoarthritis. The Office of
Judges ultimately concluded that there was insufficient evidence to establish that the requested left
knee surgery, hinged knee brace, and additional compensable conditions were related to the
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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 July 20, 2018.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The evidence of record indicates that Ms. Harpold had severe
preexisting osteoarthritis in both knees for which she had previously sought treatment. She has
requested that left knee pain, medial meniscus tear of the left knee, and bilateral knee primary
osteoarthritis be added to the claim. Left knee pain is a symptom, not a diagnosis, and therefore
cannot be added to the claim. A preponderance of the evidence shows that the medial meniscus
tear and bilateral primary osteoarthritis preexisted the compensable injury and should not be part
of the claim. A preponderance of the evidence also shows that the left knee surgery and hinged
knee brace are not necessary medical treatment for 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: April 25, 2019


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




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