                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

KINGSTON MINING, INC.,                                                                   FILED
Employer Below, Petitioner                                                           February 13, 2020
                                                                                  EDYTHE NASH GAISER, CLERK
                                                                                  SUPREME COURT OF APPEALS
vs.)   No. 18-0788 (BOR Appeal No. 2052865)                                           OF WEST VIRGINIA
                   (Claim No. 2018010643)

JOHNNY MCKINNEY,
Claimant Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Kingston Mining, Inc., by Counsel Sean Harter, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). Johnny McKinney, by
Counsel Reginald Henry, filed a timely response.

       The issue on appeal is the compensability of Mr. McKinney’s injury. The claims
administrator rejected the claim on November 21, 2017. In an Order dated April 5, 2018, the
Workers’ Compensation Office of Judges (“Office of Judges”) reversed the claims administrator’s
decision and held the claim compensable for right knee sprain. This appeal arises from a Board of
Review Order dated August 17, 2018, in which the Board of Review affirmed the Office of Judges’
Order.

        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.

        Mr. McKinney, a mine foreman, sustained an injury to his right knee on November 1, 2017,
as he was walking across a railway to go underground in a mantrip with the rest of his crew. Mr.
McKinney testified that as he was walking to the mantrip, he noticed that the curtain that they
needed for the job was on the ground. He placed the approximately thirty to fifty pound rubber
curtain on his shoulder and was stepping across the track when his right knee buckled and became
dislocated. Mr. McKinney stated that his foot slipped on uneven ground. He was transported by
Jan Care Dispatch from his worksite to Raleigh General Hospital. X-rays taken of his right knee
                                                 1
revealed loss of joint space in the medial compartment, ossified posterior patella, and enthesophyte
superior patella, but no joint effusion or fracture was found. Hospital personnel diagnosed knee
sprain and completed the Employees’ and Physicians’ Report of Occupational Injury Form.

         Paul M. Oar, M.D., Mr. McKinney’s primary care physician, examined him on November
2, 2017, and noted that he was suffering from right-knee pain. Dr. Oar’s examination revealed
some global swelling of the right knee and tenderness along the medial and lateral joint lines. Dr.
Oar referred Mr. McKinney to S. Brett Whitfield, M.D., an orthopedic surgeon. During his visit to
Dr. Whitfield on November 9, 2017, the examination revealed mild effusion, full extension to 120
degrees of flexion, and medial and lateral joint tenderness. Regarding the X-rays taken on
November 1, 2017, Dr. Whitfield noted the following abnormalities: arthritic changes of the
patellofemoral joint with osteophytes about the superior and inferior pole of the patella;
enthesophyte about the dorsal surface superiorly at the patella; and degenerative changes of the
lateral and medial compartment with small osteophytes. Dr. Whitfield diagnosed internal
derangement of the right knee with suspected medial and lateral meniscal tears and preexisting
arthritic changes of the right knee, with exacerbation. Dr. Whitfield recommended an MRI to
determine whether Mr. McKinney had sustained a torn meniscus.

       By Order dated November 21, 2017, HealthSmart Casualty Claims Solutions (“the claims
administrator”) rejected Mr. McKinney’s application for workers’ compensation benefits. The
claims administrator stated that the injury occurred at work, but there was no medical evidence to
support that the injury was a result of his work. Mr. McKinney protested the claims administrator’s
decision and elected the expedited adjudication process.

        An MRI of the right knee was performed on December 5, 2017, which revealed complete
posterior root tear of the medial meniscus and body segments of the medial meniscus with mild
patellar tendinosis and moderate cartilage abnormalities. On December 21, 2017, Dr. Whitfield
reexamined Mr. McKinney and discussed the MRI study. Dr. Whitfield stated, “MRI demonstrates
a complex tear of the posterior horn of the medial meniscus extending into the body.” Surgery was
recommended. On January 10, 2018, Dr. Whitfield performed surgical arthroscopy of the right
knee with debridement and removal of intra-articular loose bodies. Because the claim was rejected
by the claims administrator, the surgical procedure was performed under Mr. McKinney’s private
health insurance. Mr. McKinney returned to Dr. Whitfield on January 25, 2018. In his medical
records, Dr. Whitfield noted that Mr. McKinney did have a tear of the medial meniscus.

       The claims administrator referred Mr. McKinney to Prasadarao Mukkamala, M.D., who
prepared a report on February 1, 2018, wherein he opined that Mr. McKinney’s right-knee
impairment was not related to the work incident of November 1, 2017. Dr. Mukkamala diagnosed
him with internal derangement of the right knee, status post arthroscopic surgery, and
osteoarthritis. Dr. Mukkamala stated that the conditions that he diagnosed for the right-knee are
not causally related to Mr. McKinney’s employment. Dr. Mukkamala considered Mr. McKinney
to be morbidly obese and attributed his right-knee condition, including internal derangement and
osteoarthritis, to his age and excessive weight. Dr. Mukkamala indicated that because he was
simply walking when his knee gave out, there was no isolated fortuitous event that could be

                                                 2
construed as an injury. It was Dr. Mukkamala’s professional opinion that the internal derangement
was naturally occurring.

        On April 5, 2018, the Office of Judges reversed the claims administrator’s Order of
November 21, 2017, and ruled the claim compensable for right-knee sprain. The Office of Judges
indicated that this was a close case. Although Mr. McKinney was found to have significant
preexisting degenerative changes in his right knee prior to the injury, the Office of Judges found
that he established that it was more likely than not that he sustained a compensable injury while
working on November 1, 2017. The Office of Judges found that Mr. McKinney and Kingston
Mining offered equally weighted arguments. However, the Office of Judges noted that the fact that
Mr. McKinney was walking on uneven ground (over railroad tracks) while carrying a heavy tarp
when his knee gave out, tips the scales in his favor. By Order dated August 17, 2018, the Board of
Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed
the April 5, 2018, decision.

        After review, we find that the Board of Review’s Order should be affirmed. Although the
evidence of record indicates that Mr. McKinney suffers from preexisting degenerative disease in
his right knee, there is also evidence that he suffered an injury in the course of and as a result of
his employment on November 1, 2017. The Office of Judges correctly concluded that it is more
likely than not that Mr. McKinney sustained a compensable injury to his right knee. The Board of
Review did not err in affirming the April 5, 2018, decision of the Office of Judges.

         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 so clearly wrong based upon the evidentiary record that even when all
inferences are resolved in favor of the Board of Review’s findings, reasoning and conclusions,
there is insufficient support to sustain the decision. Therefore, the decision of the Board of Review
is affirmed.

                                                                                          Affirmed.

ISSUED: February 13, 2020

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




                                                 3
