                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
                                                                                 October 10, 2017
SANDY FISHER,                                                                  RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


vs.)   No. 17-0242 (BOR Appeal No. 2051540)
                   (Claim No. 2016028157)

FREEDOM BANCSHARES, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Sandy Fisher, by Robert L. Stultz, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Freedom Bancshares, Inc., by Steven
K. Wellman, its attorney, filed a timely response.

         The issue on appeal is whether the alleged knee injury suffered by Ms. Fisher on May 4,
2016, is compensable. On May 16, 2016, the claims administrator rejected the claim and
determined that the injury did not occur directly resulting from occupational duties. On August
26, 2016, the Workers’ Compensation Office of Judges affirmed the claims administrator’s
rejection of the claim. This appeal arises from the Board of Review’s Final Order dated February
17, 2017, in which the Board affirmed the rejection of the claim by the Office of Judges. 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.

        Ms. Fisher, a teller for Freedom Bank, filed a claim for workers’ compensation benefits
following an incident on May 4, 2016. She claimed that she injured her right knee when she
tripped over a rug while leaving the restroom. She was taken by EMS to United Hospital Center
for treatment. In a discharge summary, Michael Angotti, M.D., noted that the primary diagnosis
was acute meniscal tear.
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         Prior to the alleged injury on May 4, 2016, Ms. Fisher had previously been treated for
right knee pain. On February 25, 2016, she sought treatment with Dr. Angotti due to her knee
pain. Upon x-ray and examination, Dr. Angotti diagnosed Ms. Fisher with right knee
degenerative disease. Ms. Fisher was referred for an orthopedic consultation and was seen by
Joseph Fazalare, M.D., on March 23, 2016. Dr. Fazalare noted that Ms. Fisher complained of
right knee pain for six to eight months. He administered an injection of medicine to the medial
joint line and noted that an MRI would be necessary if her condition did not improve. Ms. Fisher
returned to Dr. Fazalare one week before the alleged work-related injury, on April 28, 2016. Dr.
Fazalare documented sharp medial pain and effusion, which was new since the previous visit. He
diagnosed Ms. Fisher with a right medial meniscus tear and internal derangement. On May 3,
2016, the day before the alleged injury, Ms. Fisher returned to Dr. Angotti. She reported that her
knee pain had not improved.

       On May 16, 2016, the claims administrator entered an Order denying Ms. Fisher’s
application for benefits. It was determined that the injury did not occur directly from her
occupational duties. The claims administrator noted that Ms. Fisher sought treatment for the
same knee prior to May 4, 2016. Ms. Fisher protested the claims administrator’s decision.

        By Decision dated August 26, 2016, the Office of Judges affirmed the rejection of the
claim by finding that Ms. Fisher had not proven by a preponderance of the evidence that she
sustained an injury to her right knee on May 4, 2016. The Office of Judges found that the
evidence of record demonstrates that Ms. Fisher suffered from a pre-existing condition with her
right knee. The Office of Judges noted that on February 25, 2016, Ms. Fisher presented to her
primary care physician, Dr. Angotti, with complaints of right knee pain with no trauma. Ms.
Fisher had been having pain for three months before treating with Dr. Angotti. She was
diagnosed with degenerative joint disease of the right knee. Following a referral, Ms. Fisher was
seen by Dr. Fazalare, an orthopedic surgeon. Dr. Fazalare noted that Ms. Fisher began noticing a
gradual onset of pain for six to eight months, without known injury. On April 28, 2016, Dr.
Fazalare changed his primary diagnosis from osteoarthritis of the right knee to medial meniscus
tear. The diagnosis of medial meniscus tear was prior to the alleged injury on May 4, 2016. In
light of pre-existing clinical findings indicating a torn medial meniscus, the Office of Judges
concluded that Ms. Fisher failed to show that her injury was a result of her accident on May 4,
2016. The Board of Review affirmed the rejection of the claim by the Office of Judges on
February 17, 2017.

        We agree with the reasoning and conclusions of the Office of Judges, as affirmed by the
Board of Review. Ms. Fisher has not established that she suffered a new injury on May 4, 2016.
The evidence of record establishes that she was diagnosed with a pre-existing medial meniscus
tear a week prior to the alleged injury. The record supports the Board’s decision that Ms. Fisher
did not suffer an injury in the course of and as a result from her 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.
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                                        Affirmed.

ISSUED: October 10, 2017

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




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