                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             January 20, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
DAVID MCROBERTS,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0075 (BOR Appeal No. 2048669)
                   (Claim No. 2012018431)

PINE RIDGE COAL COMPANY, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner David McRoberts, by Wendle D. Cook, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Pine Ridge Coal Company, LLC,
by Henry C. Bowen, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated December 26, 2013, in
which the Board affirmed a July 15, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s February 29, 2012,
decision denying authorization for a left knee arthroscopy. The Office of Judges also affirmed
the claims administrator’s December 5, 2011, decision holding the claim compensable but
denying meniscal degeneration, subtle tear of the left knee, bone infarction and enchondroma of
the left knee, degenerative changes at the L5-S1 disc, and mild anterior osteophytosis as
compensable conditions of 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. McRoberts worked as a coal miner for Pine Ridge Coal Company. He had a history
of left knee and lower back problems including several injuries. On August 21, 2010, Mr.
McRoberts twisted his left knee at work. An MRI was taken of his left knee which revealed
meniscal degeneration and heterogeneous bone lesions. The MRI report suggested that bone
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infarctions, enchondromas, or sclerotic lesions were possible etiologies of his left knee problems.
Mr. McRoberts, however, did not file an application for workers’ compensation benefits until
almost a year after the date of the injury. The claims administrator denied Mr. McRoberts’s
application because it was not filed within six months of the injury. On October 10, 2011, Mr.
McRoberts twisted his left knee again and struck his lower back on the floor when he fell from a
scoop bucket. He was treated at Logan Regional Medical Center and was diagnosed with a left
knee and lumbar sprain. X-rays taken at the time revealed mild anterior osteophytosis as well as
narrowing and mild degenerative changes at the L5-S1 disc. Following this injury, Mr.
McRoberts was treated by James B. Cox, D.O., who found that the injury had aggravated Mr.
McRoberts’s pre-existing conditions. However, Dr. Cox found that Mr. McRoberts could return
to work the next day. On December 5, 2011, the claims administrator held the claim
compensable for a left knee strain and a lumbar strain. The claims administrator also denied left
medial meniscus degeneration, subtle tear of the left knee, bone infarctions or enchondroma of
the left knee, degenerative changes at the L5-S1 disc, and mild anterior osteophytosis as
compensable conditions. Following this decision, Dr. Cox performed a left knee arthroscopy to
repair Mr. McRoberts’s left knee meniscal condition and bone lesions. Dr. Cox then requested
authorization and reimbursement for the arthroscopic surgery. Bruce A. Guberman, M.D.,
evaluated Mr. McRoberts and found that he had chronic post-traumatic strain of the left knee and
lumbar spine. On February 29, 2012, the claims administrator denied Dr. Cox’s request for
authorization of the left knee arthroscopy. On July 15, 2013, the Office of Judges affirmed both
claims administrator’s decisions. The Board of Review affirmed the Order of the Office of
Judges on December 26, 2013, leading Mr. McRoberts to appeal.

        The Office of Judges concluded that Mr. McRoberts’s meniscal degeneration, tear of the
left knee, bone infarction and enchondroma of the left knee, degenerative changes at the L5-S1
disc, and mild anterior osteophytosis pre-existed and were not related to his October 10, 2011,
injury. It determined that the claims administrator properly limited the compensable conditions
of the claim to a left knee sprain and a lumbar sprain. The Office of Judges found that Mr.
McRoberts had a history of left knee injuries which started over a decade prior to the
compensable injury. The Office of Judges also concluded that the requested left knee arthroscopy
was not necessitated by his October 10, 2011, injury because Dr. Cox’s treatment notes indicated
that the surgery was intended to repair Mr. McRoberts’s pre-existing meniscal problems. The
Board of Review adopted the findings of the Office of Judges and affirmed its Order.

        We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Mr. McRoberts has not demonstrated that the additional conditions are causally related
to the compensable injury. The evidence in the record, including the MRI taken prior to the
October 10, 2011, injury, shows that Mr. McRoberts’s left knee problems pre-existed this
compensable injury. He has also not shown that these conditions were aggravated by the
compensable injury. The evidence in the record shows that Mr. McRoberts’s current symptoms
are substantially similar to his pre-existing left knee and lumbar problems. Mr. McRoberts has
also not demonstrated that the requested left knee arthroscopy is medically related and
reasonably required to treat the October 10, 2011, injury. The only compensable conditions of
this claim are a sprain of the left knee and lumbar spine. The requested surgery is not an

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appropriate treatment for either condition, and Dr. Cox’s treatment notes relate the surgery to
Mr. McRoberts’s chronic meniscal problems instead of his compensable knee strain.

        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: January 20, 2015

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

DISSENTING:
Justice Menis E. Ketchum




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