City of Wheeling v. Cody Melsop

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

CITY OF WHEELING, FILED
Employer Below, Petitioner April 29, 2025
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
v.) No. 24-ICA-379 (JCN: 2024012069) INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

CODY MELSOP,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner City of Wheeling (“Wheeling”) appeals the August 22, 2024, order of the
Workers’ Compensation Board of Review (“Board”). Respondent Cody Melsop filed a
response.1 Wheeling did not reply. The issue on appeal is whether the Board erred in
reversing the claim administrator’s order, which rejected the claim.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). 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 21, 2023, while employed by Wheeling as a firefighter, Mr. Melsop
suffered an injury to his right knee when carrying a forty-pound tote upstairs. On the same
day, Mr. Melsop completed an Employees’ and Physicians’ Report of Occupational Injury
or Disease alleging that he injured his right knee while walking up the stairs at the fire
station. The physician’s section of the application was completed by a provider at the
Wheeling Hospital Emergency Department, who indicated that Mr. Melsop sustained an
occupational injury to his right knee. Mr. Melsop signed a City of Wheeling Incident and
Investigation Report dated December 21, 2023, stating that while walking up the stairs at
the station, he felt a pop on the outside of his right knee and had a sharp pain in his knee
and difficulty walking. Mr. Melsop also reported the incident to his supervisor on the day
of the injury.

Mr. Melsop was seen by Scott Miller, FNP-C, on December 22, 2023. Mr. Melsop
reported that the day before, while walking up the stairs at work, he heard a pop in his right
knee, and he felt pain in his right knee. Mr. Melsop further reported that he has had

1
Wheeling is represented by Aimee M. Stern, Esq. Mr. Melsop is represented by
Sandra K. Law, Esq.

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difficulty walking since the injury. FNP-C Miller noted decreased range of motion and
tenderness over the lateral joint line and lateral collateral ligament. A right knee x-ray
revealed patellar narrowing and spurring. FNP-C Miller assessed right knee pain.

On December 28, 2023, Mr. Melsop was seen by Ross Tennant, NP. Mr. Melsop
reported he was walking up a flight of stairs at work when he experienced a popping
sensation in his right knee and, since the injury, he has had pain and swelling in his right
knee and difficulty walking. Mr. Melsop denied any previous injuries to his right knee. NP
Tennant assessed a right knee sprain and indicated that Mr. Melsop should begin physical
therapy and undergo an MRI to help determine if there was internal derangement.

An Employer’s Report of Occupational Injury or Disease was completed by
Rebecca Fisher, Human Resources Administrative Assistant, dated January 8, 2024. Ms.
Fisher indicated that Mr. Melsop reported his injury to Seth Mowder on December 21,
2021, that she had no reason to question the injury, and that light duty was available. On
January 9, 2024, the claim administrator issued an order rejecting the claim based on a
finding that the injury was not work related. Mr. Melsop protested this order.

On February 9, 2024, Mr. Melsop was seen by Renato Delacruz, M.D. Dr. Delacruz
assessed internal derangements and arthritis of the right knee, and he ordered an MRI. On
March 1, 2024, Mr. Melsop underwent a right knee MRI revealing an irregularity at the
posterior horn of the medial meniscus without displaced tearing; the medial compartment
had significant cartilage loss along the central weight bearing portions with underlying
moderate edema; lateral cartilage loss was mild; patellofemoral cartilage loss was mild;
large knee joint effusion; and small joint bodies were seen along the posterior margin of
the anterior cruciate ligament.

Darren Frank, M.D., performed an orthopedic evaluation of Mr. Melsop on April 1,
2024. Dr. Frank reviewed the MRI and indicated there is high-grade cartilage loss in the
medial compartment, particularly on the medial femoral condyle, and there appears to be a
tear of the posterior horn of the medial meniscus, approaching the meniscal root. Dr. Frank
diagnosed a medial meniscus tear and medial compartment osteoarthritis. On April 23,
2024, Mr. Melsop underwent a right knee arthroscopy with medial meniscal root repair.

On April 16, 2024, Mr. Melsop was deposed, and he testified that he is a fire
engineer and EMT. Mr. Melsop testified that when he was not out on a call, his duties at
the station included cutting grass, cleaning the station, salting the driveway, shoveling
snow, doing laundry, cooking meals, detailing vehicles, performing minor maintenance on
the vehicles, restocking supply closets, restocking equipment, and training. Mr. Melsop
stated that on December 21, 2023, he was carrying a large tote with about forty pounds of
supplies from the laundry room, which is downstairs, and he proceeded up the stairs. Mr.
Melsop testified that about halfway up the stairs he felt an excruciating pain in his right

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knee and immediately following it felt like he had no stability and his knee was weak. Mr.
Melsop stated that he couldn’t put a lot of weight on it, and he felt that his knee was getting
worse as he continued to go up the stairs. Mr. Melsop testified that he iced his knee and
was able to finish his shift, and after his shift, he went to Urgent Care.

On August 22, 2024, the Board reversed the claim administrator’s order rejecting
the claim. The Board found that the evidence established that Mr. Melsop sustained a right
knee injury in the course of and resulting from his employment. Further, the Board held
the claim compensable for right knee sprain. Wheeling 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
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

Syl. Pt. 2, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024).

Wheeling argues that the medical records and claim documents indicate that Mr.
Melsop described the mechanism of injury as simply walking up the stairs when he felt his
knee pop. Wheeling further argues that Mr. Melsop’s injury did not result from his
employment and the injury would have occurred regardless of where Mr. Melsop was
walking at the time. Wheeling also argues that Mr. Melsop did not testify that he was
carrying a forty-pound tote at the time of the injury until four months after the injury, thus,
his testimony is not credible. We disagree.

“‘In order for a claim to be held compensable under the Workmen’s Compensation
Act, three elements must coexist: (1) a personal injury (2) received in the course of
employment and (3) resulting from that employment.’ Syl. pt. 1, Barnett v. State

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Workmen’s Comp. Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970).” Syl. Pt. 1, Sansom
v. Workers’ Comp. Comm’r, 176 W. Va. 545, 346 S.E.2d 63 (1986).

Here, the Board determined that there is a direct causal connection between Mr.
Melsop’s work and his right knee injury, as he was performing his job duties at the time of
the injury. The Board found that Mr. Melsop’s injury is attributable to a definite, isolated
fortuitous occurrence in the course of and resulting from his employment. The Board
further found that Mr. Melsop was not merely walking when his injury occurred. The Board
noted that, at the time of the injury, Mr. Melsop was carrying a forty-pound tote up a flight
of approximately seventeen stairs. The Board found that Mr. Melsop carrying forty pounds
up a long flight of stairs constituted an increased risk for Mr. Melsop, which was
“qualitatively peculiar to his employment,” and that he faced an increased quantity of a
risk.

The Board distinguished the facts of this case from the facts in Hood v. Lincare
Holdings, Inc., 249 W. Va. 108, 894 S.E.2d 890 (2023). In Hood, the Supreme Court of
Appeals of West Virginia held that: “In the context of workers’ compensation law, there
are four types of injury-causing risks commonly faced by an employee at work: (1) risks
directly associated with employment; (2) risks personal to the claimant; (3) mixed risks;
and (4) neutral risks.” Id. at 110, 894 S.E.2d at 892, syl. pt. 4. The Board noted that in
Hood, the Court affirmed the rejection of the claim and found that the claimant’s injury fell
into the category of a neutral risk.2 The Board noted that the Court noted that the claimant
did not slip, trip, or fall and he was not carrying anything.

In Kittle v. ACNR Resources, Inc., No. 22-ICA-204, 2023 WL 3167482 (W. Va. Ct.
App. May 1, 2023), this Court affirmed the rejection of the claim based on a finding that
the claimant failed to establish that he faced an increased risk of injury related to an aspect
of his employment. The Board noted that this Court indicated that if the claimant had been
carrying an industrial fan at the time of his injury, then the result may have been different.3

Upon review, we conclude that the Board was not clearly wrong in finding that Mr.
Melsop’s injury is attributable to a definite, isolated fortuitous occurrence in the course of
and resulting from his employment as he was performing his job duties at the time of the
injury. Further, we find that the Board was not clearly wrong in determining that Mr.
Melsop faced an increased risk of injury while carrying a forty-pound tote on a flight of
stairs.

2
The claimant in Hood was descending stairs at the time of his injury.
3
The claimant in Kittle was walking between industrial fans in order to move them
at the time of his injury.

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We find no merit in Wheeling’s argument that Mr. Melsop’s testimony regarding
the mechanism of injury is not credible because the testimony occurred four months after
the injury. We note that there is no evidence directly refuting Mr. Melsop’s testimony.
Further, we will defer to the Board’s determinations of credibility. See Martin v. Randolph
Cnty Bd. of Educ., 195 W. Va. 297, 306, 465 S.E.2d 399, 408 (1995) (“We cannot overlook
the role that credibility places in factual determinations, a matter reserved exclusively for
the trier of fact. We must defer to the ALJ’s credibility determinations and inferences from
the evidence . . . .”).

As the Supreme Court of Appeals of West Virginia has set forth, “[t]he ‘clearly
wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones which
presume an agency’s actions are valid as long as the decision is supported by substantial
evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483
(1996). With this deferential standard of review in mind, we cannot conclude that the Board
was clearly wrong in reversing the claim administrator’s order, which rejected the claim.

Accordingly, we affirm the Board’s August 22, 2024, order.

Affirmed.

ISSUED: April 29, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

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