                             STATE OF WEST VIRGINIA


                          SUPREME COURT OF APPEALS
                                                                                    FILED
LONNIE PATRICK,                                                                  March 22, 2016
Claimant Below, Petitioner                                                    RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
vs.)   No. 15-0276 (BOR Appeal No. 2049767)
                   (Claim No. 2013004881)


CCBCC, INC.,

Employer Below, Respondent



                             MEMORANDUM DECISION
       Petitioner Lonnie Patrick, by Jerome J. McFadden, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. CCBCC, Inc., by James Heslep, its
attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated February 25, 2015, in
which the Board affirmed an August 22, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 24, 2012,
decision denying Mr. Patrick’s application for workers’ compensation 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. Patrick worked as a route salesman for CCBCC, Inc., on August 17, 2012, when he
allegedly injured his right knee. Mr. Patrick alleges that his knee locked up while he was
standing from a seated position. He experienced a work-related right knee injury on April 27,
2007, which diagnostic testing showed was superimposed on pre-existing osteoarthritis in the
medial compartment. Mr. Patrick requested that the alleged August 17, 2012, right knee injury be
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held compensable. Chuanfang Jin, M.D., opined that based on the facts there is no convincing
clinical evidence of an injury and Mr. Patrick’s clinical symptoms and signs are consistent with
his underlying pre-existing degenerative osteoarthritis of the knee and its natural history of being
progressive. Dr. Jin stated that the symptoms can change when the pathology progresses and that
a change in the symptoms does not necessarily indicate an injury unless there is evidence of an
injury. Philip J. Branson, M. D., found that Mr. Patrick has a marked change in his functional
level after the 2012 injury which has prevented him from returning to work. He stated that the
degenerative changes, right knee pain, and change in function would be related to either Mr.
Patrick’s 2007 workers’ compensation claim or the 2012 workers’ compensation claim. On
October 16, 2012, Robert P. Kropac, M.D., opined that Mr. Patrick’s most recent injury on
August 17, 2012, further aggravated his right knee condition. The claims administrator issued a
decision to correct its August 23, 2012, Order which had an incorrect claim number. The claims
administrator denied Mr. Patrick’s application for workers’ compensation benefits because the
evidence relating to Mr. Patrick’s condition is insufficient to establish his diagnosed condition
arose from an incident which occurred in the course of and resulting from his employment.

        The Office of Judges affirmed the claims administrator’s August 24, 2012, decision and
found that a preponderance of the credible evidence fails to establish that Mr. Patrick sustained a
new injury on August 17, 2012. The Board of Review affirmed the Office of Judges’ August 22,
2014, Order. On appeal, Mr. Patrick disagrees and asserts that the Board of Review committed
an error by not considering his testimony and evidence regarding how the injury occurred and
that his work activity increased the risk of injury. CCBCC, Inc., maintains that Mr. Patrick has a
well-established history of chronic knee pain and that four years before the alleged injury, A.E.
Landis, M.D., predicted that Mr. Patrick’s knee condition would continue to deteriorate due to
degeneration. CCBCC, Inc., further maintains that Mr. Patrick was simply standing from a seated
position when he allegedly injured his right knee.

        The Office of Judges considered whether Mr. Patrick sustained a new injury on August
17, 2012, or an aggravation or progression of his April 27, 2007, injury. For the 2007 injury, Mr.
Patrick received an arthroscopic surgery in December of 2007 and was diagnosed by Dr. Landis
with a moderate injury to his right knee superimposed on pre-existing moderate degenerative
changes in the medial compartment. Dr. Landis also opined that the arthritis in Mr. Patrick’s
right knee is progressive due to the natural progression of that disease process. Mr. Patrick
continued to seek treatment for his right knee, and on December 16, 2010, Dr. Branson indicated
that Mr. Patrick represented to him that he was experiencing “occasional” mechanical catching
and locking of the knee. Mr. Patrick was seen by Dr. Kropac who found that a new injury did
occur on August 17, 2012, but did not explain why he found this was a new injury as opposed to
a re-aggravation of the old 2007 injury. Dr. Branson is much less certain regarding this issue. He
stated that the degenerative changes, right knee pain, and change in function would be related to
either the 2007 or the 2012 workers’ compensation claim.

       Dr. Jin opined that Mr. Patrick did not sustain a work-related injury in 2012 and found
that because of Mr. Patrick’s progression of the underlying pathology of degenerative
osteoarthritis, Mr. Patrick’s symptoms would have occurred notwithstanding the activity in
which he engaged. Dr. Jin found that the act of standing from a seated position is a common
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activity which most people perform routinely without ever experiencing any difficulty
whatsoever. The Office of Judges determined that Dr. Jin’s report is the most comprehensive on
the issue. Therefore, the Office of Judges concluded that the preponderance of the evidence fails
to establish that Mr. Patrick did in fact experience a new injury on August 17, 2012, and found
that it is unclear if Mr. Patrick experienced a re-aggravation of an old injury or a manifestation of
his non-compensable degenerative arthritis. The Board of Review agreed with the reasoning and
conclusions of the Office of Judges. This Court agrees with the Board of Review. Based on the
evidence, Mr. Patrick has not proven by a preponderance of the evidence that he suffered a new
injury or that an aggravation of an old injury has occurred.

        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 22, 2016

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




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