                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
ROBERT POOLE,                                                                        May 5, 2017
                                                                               RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs.)   No. 16-0554 (BOR Appeal No. 2050988)
                    (Claim No. 2015006141)

MOUNTAIN STATE CARBON,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Robert Poole, by Christopher J. Wallace, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Mountain State Carbon, by Aimee
M. Stern, its attorney, filed a timely response.

       The issue on appeal is whether Mr. Poole is entitled to have his medial meniscus tear
added as a compensable component of the claim. On July 30, 2015, the claims administrator
denied a request to add the medial meniscus tear as a compensable component of the claim. The
Office of Judges affirmed the decision in its December 10, 2015, Order. The Order was affirmed
by the Board of Review on May 20, 2016. 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. Poole, a millwright, was stepping down from a scissor lift on August 26, 2014, when
he twisted his left knee and fell to the ground. He also completed a first report of injury and was
treated in the on-site dispensary on August 26, 2014. On the first report of injury, Mr. Poole
stated that he was coming down the scissor lift and his left leg buckled when his foot hit the
ground. He had pain in the back of his knee, and down to his left ankle and toe. When treated in
the dispensary, Mr. Poole provided the same description of the injury. The records show his left
knee was already swollen, he had tenderness in the medial and lateral aspects of his knee, and he
was unable to walk. A left knee x-ray showed degenerative changes with no dislocation or

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fracture. Mr. Poole was diagnosed with a left knee sprain. The claim was held compensable for a
left knee sprain on August 29, 2014.

        On September 2, 2014, an MRI of the left knee revealed a radial tear of the posterior root
of the medial meniscus and a partial rupture of a Baker’s cyst. There was no significant joint
effusion. Mr. Poole was treated by Komar Amin, M.D., on September 8, 2014. The history Mr.
Poole provided that day was that he was stepping down off of a scissor lift, the steps were
uneven, and his left knee twisted. Dr. Amin noted the examination was limited by pain and
guarding of the left knee. Mr. Poole exhibited medial and lateral joint line tenderness, as well as
a slightly antalgic gait. Dr. Amin recommended a left knee arthroscopy.

       The claims administrator denied authorization for the left knee arthroscopy on September
16, 2014.1 On September 17, 2014, Dr. Amin performed a left knee arthroscopy with partial
medial meniscectomy and chondroplasty of the patellofemoral and medial compartments. The
postoperative diagnoses were left knee medial meniscus tear and aggravation of osteoarthritis.
Dr. Amin noted there was more osteoarthritis than suggested by the imaging.

        Mr. Poole was seen post-operatively by Dr. Amin on September 26, 2014. Mr. Poole had
full range of motion of the left knee. Dr. Amin advised him that he had more osteoarthritis than
originally thought and that this could be a concern for continued pain in the future.

        David Louis, M.D., performed a medical records review on December 15, 2014. Dr.
Louis stated in his report that he was not able to conclude within a reasonable degree of medical
certainty that a medial meniscal tear injury occurred from stepping down from the scissor lift. He
stated that Mr. Poole had degenerative findings including loose and unstable flaps of articular
cartilage on the lateral facet of the patella and chondromalacia. In Dr. Louis’s opinion, given
Mr. Poole’s pre-existing degenerative findings, including osteoarthritis, the medial meniscus tear
was likely a degenerative condition. In his opinion, the left knee surgery performed by Dr. Amin
was for treatment of chronic, degenerative, non-work related conditions, not the work injury.

         Dr. Louis testified by deposition on March 10, 2015. During cross-examination, he
acknowledged that a person with degenerative changes in the knee could still experience a
traumatic tear to the medial meniscus. He also acknowledged that a twisting type injury could
cause a meniscus tear. However, a radial tear of the meniscus is more typically a degenerative
arthritic tear rather than a concentric tear which runs along the same pattern as the curved rim of
the meniscus itself. In Dr. Louis’s opinion, Mr. Poole suffered from pre-existing left knee
degenerative arthrosis.

       On March 17, 2015, Dr. Amin completed a diagnosis update. It lists the primary
diagnosis as a medial meniscus tear. Dr. Amin stated Mr. Poole was re-injured in December of
2014 when a locker fell on his knee. Dr. Amin did not recommend surgery at that time. Mr.
Poole was working full duty.


1
    The decision was protested and affirmed by the Office of Judges. It is not at issue in the instant appeal.
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       The claims administrator denied the request to include the medial meniscus tear as a
compensable component of the claim on July 30, 2015. The claims administrator’s decision was
due to the fact that no medical documentation that substantiated a re-injury or testing that
revealed an additional tear had been received.

        In its December 10, 2015, Order, the Office of Judges determined that the question of
whether Mr. Poole’s torn meniscus was pre-existing or attributable to the August 26, 2014,
injury became a question of the credibility of Drs. Amin and Louis. It noted that Dr. Amin was
the treating physician, while Dr. Louis only performed a medical records review. However, Dr.
Louis’s qualifications and report had been placed in the record, and he also testified under oath,
by deposition, wherein he was subject to cross-examination. The qualifications of Dr. Amin had
not been placed in the record, his medical records were not as comprehensive as Dr. Louis’s
report, and his medical records did not address the etiology of Mr. Poole’s condition. Therefore,
the Office of Judges found that a preponderance of the credible medical evidence did not
demonstrate that Mr. Poole’s left knee medial meniscus tear was attributable to the compensable
injury and affirmed the claims administrator’s decision.

        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its decision on May 20, 2016. After review, we agree with the Board of
Review. Mr. Poole initially reported that he was stepping down from a scissor lift and his left leg
buckled when his foot hit the ground. There was no mention of a twisting injury until Mr. Poole
was evaluated by Dr. Amin on September 8, 2014. Mr. Poole’s initial report was completed
within minutes of the injury, and is therefore more reliable. Dr. Louis attributed the meniscal tear
to the pre-existing arthritis, whereas Dr. Amin did not address the cause of the meniscal tear. The
fact that Mr. Poole’s leg buckled when he was merely stepping from a scissor lift does not make
the pre-existing osteoarthritis or the meniscal tear compensable.

        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: May 5, 2017

CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin J. Davis
Justice Elizabeth D. Walker



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DISSENTING:
Justice Margaret L. Workman
Justice Menis E. Ketchum




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