                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
MURRAY AMERICAN ENERGY, INC.,                                                       May 1, 2017
                                                                              RORY L. PERRY II, CLERK
Employer Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

vs.)   No. 15-1019 (BOR Appeal No. 2050390)
                   (Claim No. 2010114126)

DAVID BARLOW,
Claimant Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Murray American Energy, Inc., by Aimee M. Stern and Denise D. Pentino, its
attorneys, appeals the decision of the West Virginia Workers’ Compensation Board of Review.
David Barlow, by Robert L. Stultz, his attorney, filed a timely response.

       The issue on appeal is whether osteoarthritis localized primarily in the lower leg is a
compensable condition of the claim. The claims administrator denied the request to add
osteoarthritis localized primarily in the lower leg as a secondary compensable condition in the
claim on June 5, 2014. On April 15, 2015, the Office of Judges reversed the claims
administrator’s decision. The Board of Review affirmed the Order of the Office of Judges on
September 25, 2015. 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 that the Board of Review’s decision is based upon an erroneous
conclusion of law. This case satisfies the “limited circumstances” requirement of Rule 21(d) of
the Rules of Appellate Procedure and is appropriate for memorandum decision rather than an
opinion.

       Mr. Barlow, a laborer for Murray American Energy, Inc., injured his right knee on
August 26, 2009, while working in a coal mine. On September 2, 2009, Mr. Barlow was treated
by Lloyd Kurth, D.O., of Mountainstate Orthopedic Associates. Dr. Kurth stated Mr. Barlow had
some mild complaints in the past, but when he fell on August 26, 2009, it began to hurt much
more. He noted a full range of motion. Dr. Kurth stated that he believed Mr. Barlow sprained his
knee but also had underlying degenerative joint disease. In October of 2009, Mr. Barlow
returned to Mountainstate Orthopedics Associates for evaluation. David Stoll, M.D., indicated
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that Mr. Barlow’s right knee symptoms were continuing, and he was having pain and a catching
sensation. Mr. Barlow also reported difficulty squatting. Dr. Stoll indicated he was concerned
about a meniscus tear.

        An MRI of the right knee taken on November 1, 2009, revealed a tear in the posterior
horn of the medial meniscus. There was also a thinning of the cartilage of the medial
compartment, especially of the femur, with irregularity of the surface compatible with
degenerative cartilage changes. On November 4, 2009, Mr. Barlow completed a report of injury
asserting that he suffered a right knee meniscal tear in the course of and as a result of his
employment. The claims administrator held the claim compensable for a tear of the medial
cartilage or meniscus of the knee on November 20, 2009. Mr. Barlow underwent arthroscopic
surgery, a partial medial meniscectomy, and an installation of Depo-Medrol. The postoperative
diagnosis was a torn right medial meniscus and chondromalacia of the medial femoral condyle.

       Mr. Barlow followed up with Dr. Stoll after the surgery and his condition was improving.
However, Mr. Barlow’s condition began to decline in May of 2010 when he reported to Dr. Stoll
increased pain and swelling of the right knee. Dr. Stoll stated he thought he had some
degenerative joint disease of the knee based on his arthroscopy and diagnostic images. On
February 25, 2014, Mr. Barlow visited Chris Vasilakis, M.D., of Mountainstate Orthopedic
Associates for knee pain. Dr. Vasilakis stated Mr. Barlow had osteoarthritis and has been
undergoing treatment for years. At the time of evaluation, Mr. Barlow reported a limp and pain
with use. Dr. Vasilakis noted the x-rays revealed significant degenerative arthritis of the medial
and patellofemoral joints with osteophyte formation and joint-space narrowing.

        Based upon his examination and the diagnostic images, Dr. Vasilakis authored a
diagnosis update form on May 15, 2014, requesting that osteoarthritis of the right knee be added
as a secondary condition in this claim. Dr. Vasilakis opined that Mr. Barlow developed
osteoarthritis after his partial meniscectomy, which was a result of the compensable injury.
James Dauphin, M.D., performed a medical evaluation of Mr. Barlow on October 1, 2014. Dr.
Dauphin did not believe that Mr. Barlow developed arthritis from the compensable injury. He
stated that the joint space narrowing was visible on an x-ray done in 2009, just a few days after
the injury. He opined that Mr. Barlow could not possibly have developed degenerative arthritis in
such a short amount of time.

       On October 22, 2014, Mr. Barlow was deposed. He testified about his injury and his
subsequent medical treatment. Mr. Barlow indicated that he had no right knee issues before the
compensable injury. He stated that after his right knee surgery, the symptoms increased and
decreased until about 2014. In 2014, his symptoms got much worse.

       On November 26, 2014, Dr. Vasilakis authored a letter explaining why he believed Mr.
Barlow’s right knee arthritis was related to his compensable injury. He noted that Mr. Barlow
mostly likely had some degenerative joint disease prior to the compensable injury. However, he
opined that Mr. Barlow had a work-related injury and arthroscopic surgery in 2009, which
exacerbated his pre-existing condition. Further, as Mr. Barlow continued to work, his
chondromalacia degenerated and caused the osteoarthritis in his right knee. Ultimately Dr.
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Vasilakis concluded that the compensable injury caused the type of arthritis he currently suffers
from.

        The Office of Judges determined that Mr. Barlow’s pre-existing arthritis was aggravated
by his compensable injury and subsequent surgery. The Office of Judges noted that there were
conflicting opinions regarding the source of the osteoarthritis. Dr. Vasilakis noted that Mr.
Barlow mostly likely had some degenerative joint disease prior to the compensable injury.
However, he opined that Mr. Barlow had a work-related injury and arthroscopic surgery in 2009,
which exacerbated his pre-existing condition. As Mr. Barlow continued to work, his
chondromalacia further degenerated and caused the osteoarthritis of his right knee. Dr. Dauphin
also noted the pre-existing arthritis but did not comment on whether the compensable injury
aggravated Mr. Barlow’s pre-existing arthritic condition. The Office of Judges determined that
Mr. Barlow’s testimony concerning his knee not being a source of trouble prior to the work
injury supported Dr. Vasilakis’s conclusion. As a result, the Office of Judges found that his pre­
existing arthritis was aggravated by his compensable injury and subsequent surgery. The Board
of Review adopted the findings of the Office of Judges and affirmed its Order on September 25,
2015.

       After review, we cannot adopt the conclusions of Office of Judges and Board of Review
because they are in conflict with the conclusions we recently set forth in Gill v. City of
Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016). In Syllabus Point 3 of Gill, we held that:

               A noncompensable preexisting injury may not be added as a
               compensable component of a claim for workers’ compensation
               medical benefits merely because it may have been aggravated by a
               compensable injury. To the extent that the aggravation of a
               noncompensable preexisting injury results in a discrete new injury,
               that new injury may be found compensable.

Gill further held that “[i]t is only a new injury resulting from the aggravation of the preexisting
injury that becomes compensable.” Gill, Id. at __, 783 S.E.2d at 866. Because the record does
not contain a physician’s opinion on whether there was a new discrete injury separate from the
pre-existing arthritis, the standards set forth in Gill could not be met. As a result, this case is
remanded for further medical evaluation and consideration.

         For the foregoing reasons, we find that the decision of the Board of Review was the result
of an erroneous conclusion of law. Therefore, the decision of the Board of Review is reversed
with instructions for the case to be remanded for further medical opinions on the degree of
arthritis developed after the compensable surgery.



                                                                         Reversed and Remanded.


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ISSUED: May 1, 2017


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

DISSENTING:
Justice Margaret L. Workman




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