                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

RIGHT OF WAY CLEARING & MAINTENANCE, INC.,                                              FILED
                                                                                     November 15, 2019
Employer Below, Petitioner                                                       EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
vs.)   No. 19-0013 (BOR Appeal No. 2052990)
                   (Claim No. 2013025731)

ROBERT TAYLOR,
Claimant Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Right of Way Clearing & Maintenance, Inc., by Counsel Toni J. Williams,
appeals the decision of the West Virginia Workers’ Compensation Board of Review (“Board of
Review”). Robert Taylor, by Counsel Justin M. Raber, filed a timely response.

       The issue on appeal is medical benefits. The claims administrator denied authorization of
an arthroscopic chondroplasty of the right knee on July 6, 2017. On July 28, 2017, the claims
administrator denied authorization of a venous Doppler of the right lower extremity and a return
appointment with Kelli Cawley, M.D. The Office of Judges reversed the decisions in its May 18,
2018, Order and granted the requested treatment. The Order was affirmed by the Board of Review
on December 6, 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.

         Mr. Taylor, a carpenter, was injured in the course of his employment on January 29, 2013,
when he twisted his right knee. The claim was held compensable for right knee sprain, right knee
cruciate ligament sprain, and sprain of the lateral collateral ligament of the right knee. A November
23, 2015, treatment note from Marietta Memorial Hospital indicates Mr. Taylor had a history of
two right anterior cruciate ligament repairs as well as a right knee cyst excision. He reported that
after the cyst removal, he developed right calf and thigh pain as well as swelling. It was noted that
he was previously treated for similar symptoms. A CT scan showed an extensive bilateral
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pulmonary embolus with moderate ventricular strain. It was noted that Mr. Taylor’s brother has a
similar history of deep vein thrombosis.

         On December 23, 2015, Mr. Taylor sought treatment from Marcia McCullough, N.P. She
indicated Mr. Taylor reported that he underwent right knee surgery in October of 2015 and
subsequently developed extensive bilateral pulmonary embolism of the right femoral vein. Umar
Osman, M.D., a pulmonologist, evaluated Mr. Taylor on January 6, 2016, and found that he still
had shortness of breath, headaches, and right leg swelling. Dr. Osman stated that Mr. Taylor had
a submassive pulmonary embolism that developed due to surgery. He stated that it was causing
partial right heart strain. Dr. Osman opined that Mr. Taylor’s condition may become chronic and
recommended physical therapy. On January 5, 2017, Mr. Taylor was treated by George Bal, M.D.,
for right knee pain and instability. Dr. Bal noted that Mr. Taylor had already been released to return
to work. Dr. Bal found moderately reduced range of motion in the right knee on examination. X-
rays were normal. Dr. Bal recommended an MRI.

        Mr. Taylor was treated several times at Marietta Memorial Hospital emergency department
for his right leg. On January 23, 2017, he presented with right knee pain and swelling. A venous
Doppler/ultrasound showed a possible thrombus of the right femoral and popliteal vein. He was
given anticoagulants. On February 10, 2017, Mr. Taylor was seen for a swollen right leg. A venous
Doppler showed a nonocclusive/partial thrombosis of the right femoral vein. Mr. Taylor returned
on March 8, 2017, for right leg pain and swelling. An ultrasound showed subacute or chronic
nonocclusive deep vein thrombosis. It was also noted that he had a cyst on the right knee. On
March 31, 2017, Mr. Taylor was treated for right leg pain and swelling. He was again diagnosed
with chronic deep vein thrombosis.

         Mr. Taylor was treated by Dr. Cawley on April 4, 2017, who diagnosed recurrent right leg
deep vein thrombosis. She recommended he see a vascular specialist. An April 26, 2017, treatment
note by Gregory Krivchenia, M.D., indicates Mr. Taylor had right leg swelling, pain and reduced
range of motion. Dr. Krivchenia stated that he may have underlying arthritis of the knee secondary
to his work injury. Dr. Krivchenia diagnosed right knee meniscus injury and right knee sprain. He
recommended a menisectomy and chondroplasty and stated that he believed arthritis was causing
a lot of Mr. Taylor’s problems. On May 1, 2017, Mr. Taylor sought treatment from Luke Marone,
M.D., who diagnosed post-thrombotic syndrome. He recommended Mr. Taylor continue wearing
compression socks and prescribed a venous Doppler. Mr. Taylor returned to Marietta Memorial
Hospital emergency department on May 14, 2017, for right leg pain and swelling. He had
discontinued his anticoagulation medication the month prior. An ultrasound of the right leg was
negative.

        Mr. Taylor began treating with Jeffrey Kann, M.D., on June 22, 2017. He reported that he
was originally injured on January 29, 2013, and was subsequently diagnosed with an anterior
cruciate ligament tear. He underwent surgery on March 28, 2013, and was released to return to
work on October 28, 2013. In April of 2014, Mr. Taylor began noticing increased pain and swelling
in the right knee. An MRI showed a large cyst in the right knee. He underwent anterior cruciate
ligament surgery on September 23, 2014. A diagnostic arthroscopy was performed on March 17,
2015, and loose bodies in the joint were removed. Mr. Taylor’s right knee remained symptomatic
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so an MRI was performed which showed mild osteoarthritis and a cyst. Surgery was performed on
November 6, 2014, to remove the cyst. Postoperatively, Mr. Taylor developed recurrent deep vein
thrombosis. Dr. Kann diagnosed right knee osteoarthritis and post phlebitis syndrome of the right
leg. He opined that the diagnoses were causally related to the compensable injury as they resulted
from the subsequent surgeries. Dr. Kann opined that Mr. Taylor does not need a total knee
replacement or any further surgeries. He found that he could return to work with limitations.

        In a July 14, 2017, letter, Dr. Krivchenia opined that Mr. Taylor’s MRI indicates he will
require arthroscopic evaluation and treatment and that the treatment was directly related to his
compensable injury. In a July 21, 2017, supplemental report, Dr. Kann noted that Mr. Taylor’s
brother has a history of deep vein thrombosis. Dr. Kann stated that it was his opinion that Mr.
Taylor developed a deep vein thrombosis and pulmonary embolism as a result of his compensable
injury. He stated that the prior thrombosis and family history places Mr. Taylor at a higher risk for
developing the subsequent and recurrent deep vein thrombosis.

        Mr. Taylor returned to Ms. McCullough on August 14, 2017. The treatment note indicates
Mr. Taylor underwent an ultrasound on June 15, 2017, which showed extensive chronic deep vein
thrombosis. Ultrasounds performed on June 28, 2017; July 14, 2017; and July 26, 2017, were
negative. Ms. McCullough noted that Mr. Taylor reported that his knee popped on August 14,
2017, which was possibly due to a cyst. Ms. McCullough diagnosed recurrent right lower extremity
deep vein thrombosis and venous stasis with open ulcers. Mr. Taylor testified in a hearing before
the Office of Judges on March 8, 2018, that he had no symptoms of pulmonary embolism prior to
the compensable injury. He stated that he had not worked since 2014. He had right lower extremity
pain and swelling as well as persistent right knee pain.

       The claims administrator denied authorization of an arthroscopic chondroplasty of the right
knee on July 6, 2017. On July 28, 2017, it denied authorization of a venous Doppler of the right
lower extremity and a return appointment with Dr. Cawley. The Office of Judges reversed the
decisions in its May 18, 2018, Order and authorized the requested medical treatment.

        The Office of Judges found that the record indicates Mr. Taylor’s right knee surgeries,
before he developed recurrent deep vein thromboses, were authorized by the claims administrator.
Though no order of authorization was submitted into the record, the medical records and arguments
by the parties indicate that the initial surgeries were authorized. The Office of Judges next
determined that though Mr. Taylor has a family history of deep vein thrombosis, the medical
evidence indicates he developed the condition as a result of surgery. The November 23, 2015,
emergency department note from Marietta Memorial Hospital states that his pulmonary embolism
and deep vein thrombosis developed as a result of surgery. Dr. Osman stated on January 6, 2016,
that Mr. Taylor had a pulmonary embolism that was provoked by surgery. Dr. Marone stated on
May 1, 2017, that he underwent a cyst removal that was complicated by a deep vein thrombosis.
Lastly, the Office of Judges noted that Dr. Kann opined on July 21, 2017, that though Mr. Taylor’s
family history increased his risk for deep vein thrombosis, the compensable injury and subsequent
surgeries caused the initial thrombosis. The subsequent thrombosis was the result of the prior
thrombosis as well as his family history. The Office of Judges therefore held that Mr. Taylor
developed deep vein thrombosis as a result of the compensable injury. The requested treatment for
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the condition, a venous Doppler and a return appointment with Dr. Cawley, was therefore
authorized as necessary medical treatment.

        Regarding the request for an arthroscopic chondroplasty of the right knee, the Office of
Judges determined that Drs. Krivchenia and Kann believed Mr. Taylor’s right knee condition is
related to the compensable injury. Dr. Krivchenia stated that he required the surgery due to
underlying arthritis secondary to the compensable injury. Dr. Kann stated that Mr. Taylor’s right
knee symptoms were the result of the compensable injury and subsequent surgeries. The Office of
Judges noted that the physicians disagreed on whether he requires right knee surgery. The Office
of Judges determined that there was equal evidence on either side of the issue regarding the need
for arthroscopic knee surgery. When the evidence is of equal weight, the issue is resolved in favor
of the claimant. Therefore, the right knee surgery was found to be medically related and reasonably
required treatment. The Board of Review adopted the findings of fact and conclusions of law of
the Office of Judges and affirmed its Order on December 6, 2018.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Pursuant to West Virginia Code § 23-4-1(a) (2008), workers’
compensation benefits shall be provided to those employees who have received personal injuries
in the course of and as a result of their covered employment. West Virginia Code § 23-4-3(a)(1)
(2005) provides that the claims administrator must provide medically related and reasonably
required sums for healthcare services, rehabilitation services, durable medical and other goods,
and other supplies. Mr. Taylor has proven by a preponderance of the evidence that the requested
medical treatment is reasonably required and medically necessary treatment for his 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 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: November 15, 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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