Jason Yost v. ACNR Resources, Inc.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
JASON YOST, July 1, 2024
Claimant Below, Petitioner ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
v.) No. 24-ICA-14 (JCN: 2023011395)

ACNR RESOURCES, INC.,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Jason Yost appeals the December 14, 2023, order of the Workers’
Compensation Board of Review (“Board”). Respondent ACNR Resources, Inc.,1
(“ACNR”) filed a response.2 Mr. Yost filed a reply. The issue on appeal is whether the
Board erred in affirming the claim administrator’s orders, which denied authorization for
a right knee arthroscopic surgery and closed the claim for temporary total disability
(“TTD”) benefits.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

On December 6, 2022, Mr. Yost injured his right knee when he stepped in a hole,
twisted his knee, and it popped. Mr. Yost was seen at Reynolds Memorial Hospital ER on
the same day for his right knee injury. Mr. Yost reported that he heard a pop in his right
knee and felt like he could not bear weight. Mr. Yost also reported that he had a history of

1
For reasons not readily apparent in the appendix record, the Petitioner has
substituted “Marshall County Coal Resources, Inc.” for the employer that was identified
below as “ACNR Resources, Inc.” Consistent with the action of the Supreme Court of
Appeals of West Virginia in Delbert v. Murray American Energy, Inc., 247 W. Va. 367,
369 n.1, 880 S.E.2d 89, 91 n.1 (2022), we use the name of the employer as designated in
the order on appeal: ACNR Resources, Inc.
2
Mr. Yost is represented by Sandra K. Law, Esq. ACNR is represented by Aimee
M. Stern, Esq.

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a torn meniscus, and that he wears a brace on his knee because of the previous meniscal
tear. Mr. Yost’s diagnosis was sprain of the lateral collateral ligament of the right knee.

Mr. Yost completed an Employees’ and Physicians’ Report of Occupational Injury
or Disease dated December 6, 2022; the physicians’ section of the form was incomplete.
An Employer’s Report of Injury dated December 7, 2022, indicated that Mr. Yost injured
his right knee on December 6, 2022, and the nature of the injury was sprain/strain. The
claim administrator issued an order dated December 15, 2022, holding the claim
compensable for sprain of the lateral collateral ligament of the right knee.

On December 16, 2022, Mr. Yost was seen by Dante Marra, M.D., for a right knee
injury. Dr. Marra noted that Mr. Yost had a previous right knee arthroscopy for a meniscus
tear. Mr. Yost reported that he had been icing his knee and using a crutch. The assessment
was right knee sprain with mild degenerative joint disease. Mr. Yost reported that he had
knee injections in the past, which did not help. Dr. Marra referred Mr. Yost for physical
therapy and requested a right knee MRI. Mr. Yost underwent a right knee MRI on
December 30, 2022, revealing a tear involving the medial meniscus, a possible tear
involving the lateral meniscus, and mild degenerative changes. Mr. Yost started physical
therapy at Ohio Valley Sports & Physical Therapy on January 11, 2023, which continued
through June 2, 2023.

Mr. Yost followed up with Dr. Marra on January 17, 2023. Mr. Yost reported
continued complaints of right knee pain, that he continued to have discomfort, and that he
was undergoing physical therapy. Upon examination, Mr. Yost had some medial and lateral
joint tenderness, but no gross ligamentous instability. Dr. Marra opined that the December
30, 2022, MRI showed a probable small degenerative tear of the lateral meniscus, probably
intrasubstance. Dr. Marra indicated to Mr. Yost that the treatment options were living with
the situation or possibly viscosupplementation injections.

On February 16, 2023, Mr. Yost was evaluated by Prasadarao Mukkamala, M.D.
Mr. Yost reported that he was receiving physical therapy three times a week and it had
helped him. Mr. Yost further reported that he reinjured his right knee at home two weeks
prior when he stood up and it popped. Mr. Yost indicated that he had a prior right knee
injury in 2000 when he had a torn meniscus and underwent arthroscopic surgery. Dr.
Mukkamala assessed a sprain of the right knee with evidence of intrasubstance
degeneration of the meniscus. Dr. Mukkamala opined that the intrasubstance degeneration
of the meniscus was preexisting and not causally related to the compensable injury of
December 6, 2022. Dr. Mukkamala found that Mr. Yost was at maximum medical
improvement (“MMI”) for the compensable right knee sprain. However, Dr. Mukkamala
recommended approval of one or two viscosupplementation injections, but no further
treatment after that. He stated that any further treatment after one or two injections would
be to address the noncompensable degenerative condition.

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Mr. Yost followed up with Dr. Marra again on February 17, 2023. Mr. Yost reported
continued right knee pain. Upon examination, Mr. Yost had medial and lateral joint
tenderness. Dr. Marra recommended a right knee steroid injection and a right knee
viscosupplementation injection. Dr. Marra also recommended surgery. The claim
administrator issued an order dated February 17, 2023, authorizing Dr. Marra’s request for
right knee steroid injection using ultrasound guidance. On February 22, 2023, the claim
administrator issued an order authorizing right knee viscosupplementation injections based
on Dr. Mukkamala’s report.

On July 20, 2023, Mr. Yost was seen by Jeffrey Abbott, D.O., for a second opinion
regarding his right knee injury. Dr. Abbott reviewed the right knee MRI of December 30,
2022, and noted that it showed a tear involving the medial meniscus, what appeared to be
a tear involving the lateral meniscus, and mild degenerative changes. Dr. Abbott assessed
acute lateral meniscus tear of the right knee and primary osteoarthritis of the right knee.
Dr. Abbott opined that Mr. Yost would benefit from arthroscopy to relieve his symptoms.

On May 2, 2023, the claim administrator issued an order denying authorization for
a right knee arthroscopic surgery and suspending TTD benefits on the basis that Dr.
Marra’s April 28, 2023, medical records indicated treatment for a non-work-related
condition. On June 12, 2023, the claim administrator issued an order closing the claim for
TTD benefits. Mr. Yost protested these orders. On December 14, 2023, the Board affirmed
the claim administrator’s orders. The Board found that Mr. Yost failed to establish with
medical evidence that right knee arthroscopic surgery is reasonable and necessary
treatment for the compensable condition. The Board further found that the claim was
properly closed for TTD benefits because Mr. Yost had been found to be at MMI for his
compensable diagnosis. Mr. Yost now appeals the Board’s order.

Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:

The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:
(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or

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(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

On appeal, Mr. Yost argues that although the initial compensable diagnosis in the
instant claim was a right knee sprain, the evidence indicates that he also suffered a right
knee meniscal tear, thus, that diagnosis should also be held compensable. Mr. Yost further
argues that the evidence shows no prior history of complaints or treatment related to his
right knee since his knee surgery in 2000, which indicates that the meniscal tear was related
to the compensable injury. Finally, Mr. Yost argues that due to the progressive nature of
knee injury treatment, the requested surgery is an appropriate treatment for right knee
sprain. We disagree.

The claim administrator must provide a claimant with medically related and
reasonably necessary treatment for a compensable injury. See West Virginia Code § 23-4-
3 (2005) and West Virginia Code of State Rules § 85-20 (2006).

Here, the Board determined that Mr. Yost failed to establish with medical evidence
that a right knee arthroscopic surgery is reasonable and necessary treatment for the
compensable condition, a right knee sprain. The Board noted that both Dr. Marra and Dr.
Mukkamala indicated that Mr. Yost’s right knee meniscal tear was degenerative rather than
as a result of an occupational injury and, further, that the right knee meniscal tear had not
been added to the claim as a compensable condition. Thus, the Board found that right knee
arthroscopic surgery was being requested for a noncompensable condition rather than the
compensable right knee sprain. In regard to TTD benefits, the Board noted that the
evidence showed that Mr. Yost was continuing to receive treatment but found that he failed
to meet his burden of establishing that he remained temporarily and totally disabled as a
result of the compensable injury.

Upon review, we conclude that the Board was not clearly wrong in finding that Mr.
Yost failed to establish that a right knee arthroscopic surgery is reasonable and necessary
treatment for his compensable right knee sprain based on the medical evidence. We note
that the surgery appears to have been requested to treat a right knee meniscus tear, which
is not currently a compensable condition in the instant claim. We also note that it does not
appear from the record that Mr. Yost has formally requested the addition of right knee
meniscal tear as a compensable condition in this claim, thus, the condition cannot be held
compensable. Further, we find that the Board was not clearly wrong in determining that
the closure of the claim for TTD benefits was proper based on Dr. Mukkamala’s finding
that Mr. Yost was at MMI for his compensable right knee sprain.

Accordingly, we affirm the Board’s December 14, 2023, order.

Affirmed.

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ISSUED: July 1, 2024

CONCURRED IN BY:
Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear

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