                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             January 15, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
HUNTINGTON ALLOYS CORPORATION,                                                OF WEST VIRGINIA

Employer Below, Petitioner

vs.)   No. 14-0180 (BOR Appeal No. 2048592)
                   (Claim No. 2013012413)

WILLIAM D. FANNIN,
Claimant Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Huntington Alloys Corporation, by Jillian L. Moore, its attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review.

        This appeal arises from the Board of Review’s Final Order dated February 18, 2014, in
which the Board affirmed a July 2, 2013, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges reversed the claims administrator’s March 11, 2013, decision
which denied a request for payment of viscosupplementation and Orthovisc and instead
authorized payment. 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. Fannin, a heavy equipment operator, was injured on November 5, 2012, when he
tripped and fell. The claim was held compensable for lumbar sprain and contusion of the knee
and lower leg. Mr. Fannin has a history of left knee problems. From October of 1997 to January
of 1998, he was treated by Michael Goodwin, M.D., for a medial meniscus tear and medial
compartmental arthritis. On November 26, 1997, he underwent an arthroscopic chondroplasty
parital medial menisectomy of the left knee. The evidentiary record contains no indication that
Mr. Fannin had any treatment for his left knee from January of 1998 until his compensable injury
on November 5, 2012.
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        After the compensable injury, treatment notes by James Rice, M.D., indicate that an x-ray
of the left knee showed tricompartmental degenerative joint disease. An MRI revealed
tricompartmental degenerative joint disease with a degenerative meniscal tear involving both the
medial and lateral meniscus. Dr. Rice assessed an acute injury superimposed on degenerative
joint disease of the knee. He requested that viscosupplementation and Orthovisc be approved to
treat Mr. Fannin’s pain. He stated in a medical statement that Mr. Fannin had a pain exacerbation
of underlying degenerative changes in the left knee. He opined that the condition was work-
related, and the requested treatment was necessary because Orthovisc can be used to treat the
pain related to degenerative joint disease that was exacerbated by the work-related injury.

        Marsha Bailey, M.D., performed two independent medical evaluations of Mr. Fannin. On
February 6, 2013, she stated that there was tenderness and a significant amount of synovial
thickening around the left knee. She found that he has at least moderate tricompartmental
degenerative joint disease and osteoarthritis, which is unrelated to the compensable injury. On
February 25, 2013, she reexamined Mr. Fannin and opined that he had reached maximum
medical improvement and required no further treatment. It was her opinion that his ongoing left
knee complaints are the result of degenerative joint disease and are unrelated to the compensable
injury. She stated that the request for vicosupplementation and Orthovisc is aimed at treating the
degenerative joint disease and osteoarthritis in the left knee, not the compensable condition. She
therefore recommended the treatment be denied.

        The claims administrator denied Dr. Rice’s request for viscosupplementation and
Orthovisc on March 11, 2013. The Office of Judges reversed the decision and authorized the
treatment on July 2, 2013. It found that the evidentiary record clearly shows that Mr. Fannin had
significant arthritis in his left knee prior to his compensable injury. He underwent a left knee
arthroscopy in 1997 for a medial meniscus tear, an anterior cruciate ligament tear, and medial
compartment arthritis. He was treated by Dr. Goodwin from October of 1997 to January of 1998.
He did not receive any further treatment for his left knee until after his compensable injury on
November 5, 2012. The Office of Judges stated that Dr. Rice, Mr. Fannin’s treating physician,
opined that the compensable left knee injury exacerbated his underlying degenerative joint
disease. That exacerbation caused left knee pain that requires treatment with
viscosupplementation. In contrast, Dr. Bailey found the treatment to be unnecessary because she
determined that the knee complaints are the result of pre-existing degenerative joint disease and
osteoarthritis. The Office of Judges ultimately found that the weight of the evidence supports the
opinion of Dr. Rice. It determined that a worker who, in the course of their employment, receives
an injury that aggravates or accelerates a pre-existing disease is entitled to compensation.
Gallardo v. Worker’s Comp. Comm’r, 179 W.Va. 756, 373 S.E.2d 177 (1988). The Office of
Judges determined that, at the time of the compensable injury, Mr. Fannin had not required
medical treatment for his pre-existing condition for over fourteen years. Accordingly, it held that
the requested treatment is medically necessary and reasonably required. The Board of Review
adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its
Order on February 18, 2014.


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         On appeal, Huntington Alloys Corporation argues that the requested medication is not
necessary to treat the compensable knee contusion. It also argues that the medication is
essentially a lubricant that is solely used to treat arthritis, which is not compensable in this claim.
After review, we agree with the reasoning of the Office of Judges and the conclusions of the
Board of Review. The evidence indicates that while Mr. Fannin did have pre-existing
degenerative joint disease, he had not been treated for the condition for fourteen years prior to
the compensable injury. Following the compensable injury, he again began experiencing pain in
his left knee. His treating physician opined that the requested treatment is necessary to treat the
work-related exacerbation.

        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 15, 2015

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




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