                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                            September 17, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
DENZIL E. MOYERS,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-1085 (BOR Appeal No. 2049413)
                   (Claim No. 2010132343)


T AND B SERVICE, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Denzil E. Moyers, by Robert L. Stultz, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. T and B Service, LLC, by Lisa Warner
Hunter, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated September 25, 2014, in
which the Board affirmed an April 25, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s April 25, 2013,
decision denying Mr. Moyers’s request for a left knee arthroscopy with partial meniscectomy
and debridement. 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. Moyers worked for T and B Service, LLC, when he injured his left knee on January
11, 2010, while trying to get a mount off a frame. The mount struck Mr. Moyers in the left knee.
The claim was held compensable for sprain of the medial collateral ligament of the left knee, and
the claims administrator found that Mr. Moyers was not entitled to temporary total disability
benefits because he missed less than three days of work. The claims administrator authorized left
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knee arthroscopy and partial meniscectomy but denied a chondroplasty on July 12, 2010. Mr.
Moyers underwent a left knee arthroscopy and partial medial meniscectomy on July 15, 2010.
On September 9, 2010, Mr. Moyers saw Dean Steinman, D.O., for the purpose of an independent
medical evaluation. Dr. Steinman recommended a repeat MRI to determine if there is a reason
for a repeat arthroscopy to correct abnormalities due to the injury of January 11, 2010. Dr.
Steinman found Mr. Moyers suffered 4% whole person impairment. An MRI of Mr. Moyers’s
left knee on October 18, 2010, demonstrated an oblique tear of the posterior horn of the medial
meniscus in a background of myxoid degeneration. Sushil Sethi, M.D., performed an
independent medical evaluation on February 22, 2013, and found that the October 18, 2010, MRI
showed no need for an additional arthroscopy because myxoid degeneration was found , which
would be due to wear and tear from the aging process. Dr. Sethi opined that the compensable
injury had resolved and that the surgery was to treat Mr. Moyers’s non-occupational
degenerative arthritis. Chris Vasilakis, M.D., treated Mr. Moyers from October 4, 2010, to July
15, 2013. Dr. Vasilakis requested that Mr. Moyers undergo a second left knee arthroscopy,
partial meniscectomy, and chondroplasty due to continuous chronic pain of the left knee that had
not improved with months of conservative treatment. A second MRI of the left performed on
January 28, 2013, revealed diffuse degenerative intrasubstance signal throughout the medial
meniscus with a tiny tear involving the posterior horn. It also showed a focal T1 hypointense and
T2 hyperintense rounded lesion within the fat posterior to the distal femoral diaphysis. Mr.
Moyers requested authorization for a second left knee arthroscopy with partial meniscectomy
and debridement based on Dr. Vasilakis’s report. The claims administrator denied authorization
for a left knee arthroscopy with partial meniscectomy and debridement.

        The Office of Judges affirmed the claims administrator’s decision and found that Mr.
Moyers has failed to demonstrate through a preponderance of the evidence that the knee surgery
requested is medically related and reasonably necessary to treat his compensable injury. The
Board of Review affirmed the Office of Judges’ Order. On appeal, Mr. Moyers disagrees and
asserts that Dr. Vasilakis, his treating physician, is in the best position to determine his treatment
needs and that he recommended the surgery. T and B Service, LLC, maintains that the medical
evidence does not support a causal connection between the need for surgery and the January 11,
2010, left knee injury. T and B Service, LLC, further maintains that Dr. Sethi found the
requested treatment was not reasonable or necessary to treat the compensable injury but was
necessary for treatment of the underlying degenerative condition.

        The Office of Judges found that the only medical opinion of record that addressed
causation is Dr. Sethi’s report. Dr. Sethi found clear indication that the surgery is for Mr.
Moyers’s degenerative, arthritic knee condition and not for the January 11, 2010, injury. On
September 9, 2010, Dr. Steinman also concluded that Mr. Moyers’s work-related injury had
stabilized and that his chondromalacia was a non-occupational degenerative disease. Although
Dr. Vasilakis recommended the arthroscopy and debridement, he provided no opinion suggesting
that the requested surgery is reasonable and necessary for treatment of the January 11, 2010, left
knee injury and resulting meniscus tear for which Mr. Moyers underwent surgery in July of
2010. Therefore, considering the reports of Dr. Sethi and Dr. Steinman and the lack of evidence
in Dr. Vasilakis’s report as to a causal connection, the Office of Judges concluded that Mr.

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Moyers has failed to demonstrate through a preponderance of the evidence that the knee surgery
is medically related and reasonable necessary to treat the compensable injury.

        The Board of Review agreed with the Order of the Office of Judges. This Court agrees
with the Board of Review. Dr. Vasilakis is the physician who requested the surgery. However,
Dr. Vasilakis failed to explain how this surgery is medically related and reasonably necessary to
treat the compensable injury. Dr. Sethi found the requested surgery is not necessary for the
compensable injury but is needed to treat Mr. Moyers’s degenerative, arthritic knee condition. In
addition, Dr. Sethi and Dr. Steinman both concluded that no further treatment is needed for Mr.
Moyers’s 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 based upon a material misstatement or mischaracterization of the
evidentiary record. Therefore, the decision of the Board of Review is affirmed.


                                                                                        Affirmed.


ISSUED: September 17, 2015

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


DISSENTING:
Chief Justice Margaret L. Workman
Justice Menis E. Ketchum




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