                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

BENJAMIN KING,                                                                         FILED
Claimant Below, Petitioner                                                          December 6, 2019
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
vs.)   No. 19-0155 (BOR Appeal No. 2053211)                                         OF WEST VIRGINIA

                   (Claim No. 2018005549)

CONSTELLIUM ROLLED PRODUCTS,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Benjamin King, by Counsel Edwin H. Pancake, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). Constellium Rolled
Products, by Counsel Alyssa A. Sloan, filed a timely response.

       The issue on appeal is compensability. The claims administrator rejected the claim on
September 28, 2017. The Office of Judges affirmed the decision in its July 13, 2018, Order. The
Order was affirmed by the Board of Review on January 28, 2019.

        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. King, an inspector/packer, alleges that he was injured in the course of his employment
on August 24, 2017. The Employees’ and Physicians’ Report of Injury, completed that day,
indicates he was walking when he felt his right knee pop. Mr. King stated that he was unsure if he
stepped on something but he was unable to bear weight on the right knee after it popped. The
physician’s section was completed at Jackson General Hospital and listed the diagnosis as right
knee strain.

       An August 25, 2017, treatment note from Activate Healthcare indicates Mr. King sought
treatment for right knee pain that occurred while he was walking into work. He stated that he was
just walking when his right knee popped. He did not trip or stumble on anything. He denied any
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prior right knee injuries. Mr. King was diagnosed with right knee pain and transferred to the
emergency room at Jackson General Hospital. Treatment notes from Jackson General Hospital
Emergency Department that day indicate Mr. King was treated by Steven Eshenaur, M.D. A right
knee x-ray was normal. Dr. Eshenaur diagnosed right knee sprain and referred Mr. King to an
orthopedist.

        Mr. King returned to Activate Healthcare on August 29, 2017, where he was diagnosed
with right knee pain and released to return to work. On August 31, 2017, Mr. King sought treatment
from Kelly Roush, D.C., for right knee pain. He had limited range of motion and swelling. Dr.
Roush diagnosed right knee sprain and recommended physical therapy. A second Employees’ and
Physicians’ Report of Injury was completed on September 8, 2017, by Activate Health and
Wellness Center. It indicates Mr. King developed right knee pain while walking. The injury was
listed as non-occupational.

        In a September 15, 2017, letter, Dr. Roush stated that Mr. King was walking into work
when he felt his knee pop and experienced sharp pain. She opined that he suffered a traumatic
occupational injury and recommended an MRI and physical therapy. Mr. King completed a written
statement on September 15, 2017, in which he asserted that he was walking into the plant on
August 24, 2017, when he stepped into or onto something and his right knee popped. He was
treated and released to return to light duty on August 29, 2019. He asserted that he reported to
Jackson General, Dr. Roush, and the plant medical facility that he stepped onto or into something
at work, causing his knee to pop. An incident report completed by the employer on September 22,
2017, indicates Mr. King reported he stepped onto or into something at work and injured his right
knee. The claims administrator rejected the claim on September 28, 2017.

       In an October 6, 2017, treatment note, Dr. Roush noted that Mr. King injured his right knee
while walking into work. He was diagnosed with a right knee sprain and treated with physical
therapy. On December 4, 2017, Mr. King was treated by Christina Webb, M.D. She indicated he
was going to physical therapy for his right knee. He reported joint pain but no muscle aches,
weakness, or swelling in his extremities. Dr. Webb diagnosed right knee pain. An MRI was
performed on December 8, 2017, and showed a moderate size joint effusion, a small Baker’s cyst,
and chondromalacia patella.

        Mr. King testified in a deposition on March 1, 2018, that he injured his right knee on August
25, 2017, though he accidentally listed the injury date as August 24, 2017. Mr. King stated that he
was not sure if he stepped into or onto something on the day of his injury. He was walking on
blacktop when the injury occurred but he asserted that there was debris and gravel in the area and
the blacktop was uneven. Mr. King testified that he sought treatment from Dr. Roush who
diagnosed a hamstring injury. He was still in physical therapy and his knee was improving at the
time of the deposition. Mr. King stated that he questioned whether his use of Lipitor could have
affected his knee but his physician, Dr. Webb, performed blood work and stated that the medication
was not an issue. Mr. King denied any prior right knee problems.

       A January 20, 2015, treatment note by Michael Witt, M.D., indicates that Mr. King did
have preexisting knee issues. Mr. King was seen for a pre-employment physical in which he
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requested that he be disqualified from a position in scalping due to arthritis in both knees. He stated
that climbing in and out of the tall steps caused him knee pain. Dr. Witt found mild deformity of
the knee joints on examination and diagnosed osteoarthritis of the knees.

        The Office of Judges affirmed the claims administrator’s rejection of the claim on July 13,
2018. It determined that a preponderance of the evidence indicates Mr. Webb did not sustain an
injury as a result of his employment. All of the initial medical records state that he was merely
walking at work when his right knee popped. Though he alleges that his employer encouraged the
medical providers to inaccurately represent the injury, there is no evidence of record to support
such an allegation. The Office of Judges found that Mr. King relied on Dr. Roush’s treatment notes
in support of his claim. Dr. Roush stated that Mr. King twisted his right knee while at work;
however, this is inconsistent with the remainder of the evidence of record. The records from
Activate Health and Jackson General both indicate Mr. King was merely walking when his knee
popped. They make no mention of a twisting injury. Further, Dr. Roush’s initial treatment notes
make no mention of a twisting injury. Though Mr. King testified that the blacktop he was walking
on was uneven and covered in debris and gravel, he also stated that he was unsure if he stepped on
anything. The initial treatment records contain no mention of him stepping on something. The
Office of Judges concluded that the weight of the evidence indicates Mr. King was merely walking
when his right knee popped. As he was not performing an action unique to his employment at the
time of his injury, the injury did not occur as a result of his employment. Further, the record shows
Mr. King had preexisting right knee degeneration and even requested a medical disqualification
from a position due to bilateral knee arthritis. It was noted at that time that he had deformity in
both knees and he was diagnosed with osteoarthritis. The Board of Review adopted the findings
of fact and conclusions of law of the Office of Judges and affirmed its Order on January 28, 2019.

        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 (2017), employees
who receive injuries in the course of and as a result of their covered employment are entitled to
benefits. For an injury to be compensable it must be a personal injury that was received in the
course of employment, and it must have resulted from that employment. Barnett v. State
Workmen’s Compensation Commissioner, 153 W.Va. 796, 172 S.E.2d 698 (1970). In this case, a
preponderance of the evidence indicates Mr. King was merely walking into work when his right
knee popped. He did not trip, slip, or fall over anything and he was not performing an action that
was unique to his job. His knee merely gave out while he was traversing the parking lot. Therefore,
his injury did not occur as a result of his employment.

        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.

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ISSUED: December 6, 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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