                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

KOREY S. PERSINGER,
                                                                                       FILED
Claimant Below, Petitioner                                                            June 26, 2020
                                                                                EDYTHE NASH GAISER, CLERK

vs.)   No. 19-0387 (BOR Appeal No. 2053620)                                     SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
                   (Claim No. 2016028251)

PARKWAYS ECON DEVELOPMENT AND TOURISM AUTHORITY,
Employer Below, Respondent


                              MEMORANDUM DECISION
      Petitioner Korey S. Persinger, by Counsel Reginald D. Henry, appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). Parkways Econ
Development and Tourism Authority, by Counsel Jillian L. Moore, filed a timely response.

         The issues on appeal are an additional compensable condition and medical benefits. The
claims administrator denied a request for a left knee arthroscopy with bone grafting of the
tibial/femoral tunnels. On January 24, 2018, the claims administrator denied the addition of left
knee anterior cruciate ligament rupture to the claim. The Office of Judges affirmed the decisions
in its October 26, 2018, Order. The Order was affirmed by the Board of Review on March 22,
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. Persinger, a highway technician, injured his left knee in the course of his employment
on May 4, 2016. The Employees’ and Physicians’ Report of Injury indicates Mr. Persinger was
pressure washing underneath a bridge when he twisted his left knee on some rocks. The diagnosis
was listed as left knee sprain. The claim was held compensable for left knee sprain on May 9,
2016.


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        A July 20, 2016, left knee MRI showed that Mr. Persinger had previously had an anterior
cruciate ligament graft. The graft was discontinuous. The MRI also showed patellofemoral
chondromalacia, posterior lateral femoral condyle with low grade chondromalacia, and
questionable large plica with small suprapatellar effusion. Mr. Persinger was treated by Joe Pack,
D.O., on September 20, 2016. Dr. Pack diagnosed left knee anterior cruciate ligament tear and
referred Mr. Persinger to WVU Sports Medicine for consideration of anterior cruciate ligament
reconstruction.

        On February 28, 2017, Mr. Persinger sought treatment from E. Barry McDonough, M.D.,
with WVU Sports Medicine. Mr. Persinger reported that he previously sustained a left knee
anterior cruciate ligament tear in a motor vehicle accident, for which he underwent surgery. He
stated that he completely recovered with no residual problems and returned to full-duty work. On
May 2, 2016, he was working when he twisted his knee on some rocks. Dr. McDonough noted that
an MRI showed a recurrent anterior cruciate ligament tear. The assessments were left knee
recurrent anterior cruciate ligament tear, and left knee medial collateral ligament sprain. On March
10, 2017, Dr. McDonough noted that Mr. Persinger’s left knee CT scan showed widening of the
tibial osseous tunnel, status post anterior cruciate ligament graft reconstruction. Dr. McDonough
diagnosed status post recurrent anterior cruciate ligament tear of the left knee. He stated that Mr.
Persinger would need a left knee arthroscopy with bone graft and then an anterior cruciate ligament
reconstruction.

       Syam Stoll, M.D., performed a physician review on March 27, 2017, in which he
recommended that Mr. Persinger get a second opinion with orthopedic surgery before the claims
administrator considers whether to authorize a left knee arthroscopy. Dr. Stoll opined that the
mechanism of injury, twisting, is not consistent with the MRI findings. Dr. Stoll stated that the
MRI shows intact medial and lateral meniscus, which does not correlate with a twisting injury.

       D. Kelly Agnew, M.D., performed an independent medical evaluation on June 21, 2018,
in which he noted that the claim was held compensable for left knee strain. Mr. Persinger missed
no work for his injury. Dr. Agnew noted that Mr. Persinger had a previous anterior cruciate
ligament reconstruction. Dr. Agnew opined that his current need for surgery was the result of
chronic failure, not an acute injury. He stated the findings seen on MRI had no causal relationship
with the compensable injury. Dr. Agnew concluded that Mr. Persinger had reached maximum
medical improvement. He assessed 0% impairment.

         On July 13, 2017, Rebecca Thaxton, M.D., performed a physician review in which she
recommended that the requested arthroscopy with anterior cruciate ligament reconstruction be
denied. She noted Dr. Agnew’s findings and determined that Mr. Persinger’s anterior cruciate
ligament tear was the result of chronic failure of the anterior cruciate ligament graft, not the
compensable injury. Dr. Thaxton agreed and opined that the surgery should not be authorized. The
claims administrator denied the request for a left knee arthroscopy with bone grafting of the
tibial/femoral tunnels on September 20, 2017.

       Dr. McDonough completed a diagnosis update in which he requested that anterior cruciate
ligament rupture/tear be added to the claim on November 30, 2017. On December 11, 2017, Dr.
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Thaxton performed a physician review in which she opined that anterior cruciate ligament
rupture/tear should not be added to the claim. The claims administrator denied the addition of
anterior cruciate ligament rupture to the claim on January 24, 2018.

        In a June 12, 2018, independent medical evaluation, David Jenkinson, M.D., determined
that Mr. Persinger’s current symptoms are not consistent with a traumatic tear of the anterior
cruciate ligament. He further opined that while Mr. Persinger may have suffered a strain of his left
knee due to the compensable injury, he had chronic failure of his 2013 anterior cruciate ligament
graft prior to the compensable injury. Dr. Jenkinson stated that Mr. Persinger had reached
maximum medical improvement and opined that he had 0% permanent impairment as a result of
the compensable injury. Mr. Persinger further stated that the requested surgery should not be
authorized since it was not related to the compensable injury.

        In its October 26, 2018, Order, the Office of Judges affirmed the claims administrator’s
decisions denying the addition of left knee anterior cruciate ligament rupture to the claim and
denying authorization of a left knee arthroscopy with bone grafting of the tibial/femoral tunnels.
The Office of Judges first addressed the addition of left anterior cruciate ligament rupture to the
claim. The Office of Judges found that Dr. Stoll performed a physician review report in which he
was asked to determine if the requested surgery should be authorized. Dr. Stoll opined that the
mechanism of injury was not consistent with an anterior cruciate ligament rupture/tear. The Office
of Judges noted that Dr. Agnew performed an independent medical evaluation in which he
determined that Mr. Persinger’s compensable injury was not compatible with an anterior cruciate
ligament rupture/tear. Dr. Agnew opined that the MRI and CT scan showed degenerative changes
in the left knee. The Office of Judges also relied upon Dr. Thaxton’s physician review in which
she concluded that anterior cruciate ligament tear should not be added to the claim. Finally, the
Office of Judges looked to the report of Dr. Jenkinson, who performed an independent medical
evaluation. Dr. Jenkinson concluded that the anterior cruciate ligament tear should not be added
to the claim. He opined that the medical records and mechanism of injury were not consistent with
an acute ligament tear in the left knee. Dr. Jenkinson found that the anterior cruciate ligament tear
was the result of chronic failure of Mr. Persinger’s prior 2013 reconstruction. Based on the above
reports, the Office of Judges determined that a preponderance of the evidence indicates anterior
cruciate ligament should not be added to the claim.

        Regarding the requested left knee arthroscopy with bone grafting, the Office of Judges
relied on the reports of Drs. Agnew, Thaxton, and Jenkinson to concluded that the surgery should
not be authorized. Dr. Agnew opined that the surgery was requested to treat noncompensable,
preexisting conditions. He stated that the bone grafting was to treat chronic widening of the canals,
which resulted from the 2013 surgery and that the anterior cruciate ligament that followed would
also be unrelated to the compensable injury. In her physician review, Dr. Thaxton agreed with Dr.
Agnew’s conclusions. Lastly, the Office of Judges looked to the report of Dr. Jenkinson. He opined
that Mr. Persinger sustained a left knee sprain as a result of the compensable injury, that he had
reached maximum medical improvement, and that the requested surgery should not be authorized.
Based on the above reports, the Office of Judges concluded that the requested surgery should not
be authorized. The Board of Review adopted the findings of fact and conclusions of law of the
Office of Judges and affirmed its Order on March 22, 2019.
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        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. A preponderance of the evidence indicates that Mr. Persinger
sustained a left knee sprain/strain as a result of the compensable injury. The evidence further
indicates that his recurrent anterior cruciate ligament tear is the result of a chronic process rather
than an acute injury. Therefore, the addition of the condition to the claim was properly denied.
Because the condition is not a compensable component of the claim, surgery for the anterior
cruciate ligament rupture/tear was also properly denied.

        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: June 26, 2020


CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

NOT PARTICIPATING:

Justice Margaret L. Workman




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