Karen Walker v. Goodwill Industries of Kanawha Valley, Inc.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
KAREN WALKER,
Claimant below, Petitioner February 2, 2023
EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
vs.) No. 22-ICA-190 (BOR Appeal No. 2058243) OF WEST VIRGINIA

(JCN: 2021000769)

GOODWILL INDUSTRIES OF KANAWHA VALLEY, INC.,
Employer below, Respondent

MEMORANDUM DECISION

Petitioner Karen Walker appeals the September 27, 2022, order of the Workers’
Compensation Board of Review (“Board”). Respondent Goodwill Industries of Kanawha
Valley, Inc., filed a timely response. 1 Petitioner did not file a reply brief. The issue on
appeal is whether the Board erred in affirming the Office of Judges’ (“OOJ”) order
affirming the claim administrator’s order denying the addition of patellofemoral arthritis
of the left knee and knee pain as compensable conditions and closing 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 July 8, 2020, Ms. Walker tripped over a clothing rack while at work and injured
her knee. Treatment records from MedExpress dated July 13, 2020, indicate that Ms.
Walker reported pain and swelling in the left knee which was worsened with movement
and weightbearing. The assessment was a contusion of the left knee, and, on that same day,
the claim administrator held the claim compensable for a contusion of the left knee.

Ms. Walker was seen by an orthopedist, David Felder, M.D., on July 14, 2020. Dr.
Felder diagnosed strain of the left tibialis muscle, and he prescribed physical therapy. Ms.
Walker was seen by Dr. Felder again on August 11, 2020. She reported having attended
five physical therapy sessions but claimed they did little to help the pain. Dr. Felder
diagnosed a contusion of the left anterior thigh and a strain of the left tibialis anterior

Ms. Walker is represented by Patrick K. Maroney, Esq. Goodwill Industries of
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Kanawha Valley, Inc. is represented by Steven K. Wellman, Esq.
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muscle, both of which were completely resolved of symptoms. Dr. Felder did not believe
an MRI was necessary as Ms. Walker had been inconsistent with her areas of discomfort
and that his objective findings did not align with Ms. Walker’s subjective complaints.
Although Ms. Walker expressed the need to limp when she walked, Dr. Felder indicated
that she appeared to walk with minimal discomfort and that she appeared to be comfortable
while sitting. Dr. Felder stated that Ms. Walker could work on modified duty and that with
additional physical therapy, she likely could return to full duty in two weeks. On August
14, 2020, the claim administrator gave Ms. Walker a thirty-day notice that TTD benefits
would be closed unless she provided evidence warranting additional benefits.

On August 27, 2020, Ms. Walker returned to see Dr. Felder for a follow up. She
reported severe pain at times and no pain at others. Dr. Felder opined that her complaints
were confusing and noted that Ms. Walker had been inconsistent with physical therapy.
Further, she was hysterical and crying due to pain at times, while at other times she sat very
comfortably without pain. At times she ambulated without signs of discomfort, while at
other times she complained of pain so severe she could barely move. Dr. Felder also noted
that Ms. Walker’s description of her pain was incompatible with her reports at the last visit.
He reported observing Ms. Walker walking in the office parking lot and noted that she
appeared to be able to get into the driver’s side of her Jeep and drive unassisted with
minimal discomfort, yet she cried out in pain when he touched her leg. He diagnosed left
thigh pain and left leg pain.

Ms. Walker underwent an MRI in September of 2020 that revealed degenerative
changes in the medial meniscus and the medial and lateral compartmental cartilage. The
impression was mild degenerative changes, lateral patellar tilt without subluxation, mild
chondromalacia of the lateral patellar facet, and suspect intraosseous ganglion/geode in the
mid proximal tibia.

On October 5, 2020, Ms. Walker saw Chad Lavender, M.D., an orthopedist. Dr.
Lavender reviewed the MRI and noted that it revealed a suspected intraosseous
ganglion/geode. He stated that Ms. Walker had patellofemoral arthritis but no obvious
tearing of the meniscus. Dr. Lavender referred Ms. Walker to Felix Cheung, M.D., an
orthopedic oncologist, for the geode on the tibia. Dr. Lavender opined that Ms. Walker’s
knee was not causing her pain.

Ms. Walker was examined by Dr. Cheung on October 21, 2020. He reviewed the X-
rays and the MRI and concluded that Ms. Walker had an enchondroma connected to a
synovial cyst coming down from the tibial plateau. Dr. Cheung did not believe that these
issues were causing her leg pain or swelling and deferred further treatment to Dr. Lavender,
as Dr. Cheung’s role was simply to make sure the lesion did not grow or become malignant.
Ms. Walker returned to Dr. Lavender on October 26, 2020, and he diagnosed her with
patellofemoral arthritis with a geode in the proximal tibia. He noted that she had not

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complied with the recommended testing and stated that he was uncertain of the nature of
her pain, which did not seem to be coming from her knee based on the MRI.

On November 4, 2020, Ms. Walker underwent an independent medical evaluation
(“IME”) performed by Bruce Guberman, M.D. Dr. Guberman’s impression was a history
of a contusion of the left knee and leg. According to Dr. Guberman, Ms. Walker’s
compensable condition had not worsened, and her subjective complaints were only
partially supported by objective medical evidence. Dr. Guberman opined that Ms. Walker
had reached maximum medical improvement (“MMI”), had no permanent impairment, and
needed no further treatment for the compensable injury.

Later that month, Ms. Walker was examined by Frederic Pollock, M.D., an
orthopedic surgery specialist. Ms. Walker presented in a wheelchair and claimed that she
was unable to walk without severe pain. Dr. Pollok’s impression was an acute and chronic
strain of the left leg and possible complex regional pain syndrome, and he referred her back
to Dr. Cheung and Dr. Lavender for further treatment. Subsequently, Ms. Walker requested
a referral to yet another orthopedic surgeon, Matthew Stover, M.D.

Ms. Walker was examined by Dr. Stover in December of 2020. Dr. Stover’s clinical
notes indicated that the case began as a workers’ compensation injury, but it was no longer
being considered under workers’ compensation. Dr. Stover assessed chondromalacia of the
patella and agreed with the other physicians that the ganglion was not causing Ms. Walker’s
pain. Rather, he believed it was attributable to wear and tear in the knee. He suggested a
chondroplasty of the knee, and Ms. Walker agreed to the surgery. Dr. Lavender completed
a diagnosis update form requesting that patellofemoral arthritis of the left knee and left
knee pain be added as compensable conditions.

On December 17, 2020, Rebecca Thaxton, M.D., performed a review of Ms.
Walker’s case and opined that the diagnosis of patellofemoral arthritis was not caused by
the injury and should not be added to the claim. While the injury may have caused a
temporary worsening of the symptoms of patellofemoral arthritis, Dr. Thaxton stated that
no documentation showed how the condition related to the compensable injury, and she
opined that the condition had resolved and returned to its baseline. She further noted that
left knee pain is a symptom, not a diagnosis, and, therefore, should not be added to the
claim. As a result, the claim administrator denied the addition of these conditions to the
claim on December 27, 2020. Ms. Walker filed an internal grievance, which was denied by
the Encova Select Grievance Board.

On January 15, 2021, the claim administrator closed the claim for TTD benefits,
noting that Ms. Walker failed to provide any evidence warranting continued benefits
following the August 14, 2020, thirty-day notice. Shortly thereafter, on January 20, 2021,
the claim administrator issued an order denying the addition of patellofemoral arthritis of
the left knee and knee pain as compensable conditions, citing the findings of the Encova

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Select Grievance Board. Ms. Walker protested both orders. She also underwent the surgery
recommended by Dr. Stover that same month, which was never submitted as part of the
claim and was paid for by her private insurance.

In March of 2021, Dr. Stover completed a second diagnosis update form, requesting
that chondromalacia patella be added to the claim. He examined Ms. Walker as a follow
up to her surgery in May of 2021, and noted that she reported continued pain and swelling,
which was normal following surgery. Dr. Stover stated that preexisting osteoarthritis was
noted during the surgery and opined that the injury aggravated said condition.

Ms. Walker saw a physician for pain relief in June of 2021 and was diagnosed with
pes anserinus bursitis of the left knee and left knee pain. She underwent another MRI in
August of 2021, which showed a mild irregularity of the posterior patella consistent with
mild chondromalacia patella and a lesion within the proximal tibia consistent with a
subchondral cyst. In November of 2021, Ms. Walker testified via deposition regarding her
injury and treatment. According to Ms. Walker, she had not been treated for any knee
conditions prior to the compensable injury.

By order dated April 15, 2022, the OOJ affirmed the claim administrator’s orders
denying the addition of patellofemoral arthritis and left knee pain and closing the claim for
TTD benefits. The OOJ noted Ms. Walker’s inconsistent and seemingly exaggerated
complaints regarding her pain. It further noted that the MRI showed degenerative changes
in the knee, which would not be attributed to the injury, and that Dr. Stover initially agreed
that Ms. Walker’s pain was not due to the injury. The OOJ further noted that Dr. Thaxton
reviewed the claim and determined that neither the diagnosis of patellofemoral arthritis nor
that of knee pain should be added to the claim. According to Dr. Thaxton, the arthritis was
preexisting, and no documentation showed how it was related to the compensable injury.
Moreover, pain was a symptom and not a diagnosis to be added to the claim. The OOJ
concluded that patellofemoral arthritis was a degenerative condition that would not have
occurred between the July 2020 injury and the September 2020 MRI, and it opined that,
per Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016), it was not a discrete
new injury. As such, the OOJ denied the addition of these conditions. The OOJ further
determined that Ms. Walker was not entitled to additional TTD benefits as Dr. Gubmerman
had placed her at MMI on November 4, 2020, and any subsequent treatment was aimed at
her cyst or geode, which were not compensable and were outside the scope of the claim.
By order dated September 27, 2022, the Board adopted the findings and conclusions of the
OOJ and affirmed its April 15, 2022, order. Ms. Walker now appeals.

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

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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.

Duff v. Kanawha Cnty. Comm’n, No. 22-ICA-10, __W. Va.__, __, __S.E.2d __, __, 2022
WL 17546598, at *4 (Ct. App. Dec. 9, 2022).
On appeal, Ms. Walker argues that her ongoing issues with her knee are related to
the compensable condition. According to Ms. Walker, she did not have any problems with
her knee prior to the compensable injury. Since then, Ms. Walker has consistently suffered
from pain and arthritis in her knee and, as such, she avers that the work injury clearly
created or aggravated these medical conditions and, therefore, should have been added to
the claim. Ms. Walker claims that Gill has no bearing on her case as she did not have any
prior medical care or treatment for her knee until after the work injury. She argues that, per
Jordan v. State Workmen’s Comp. Comm’r, 156 W. Va. 159, 191 S.E.2d 497 (1972), and
Keller v. State Workmen’s Comp. Comm’r, 156 W. Va. 760, 197 S.E.2d 306 (1973), an
employer must take an employee as it finds him or her—preexisting conditions included.
Ms. Walker avers that under these cases, even if she did have these latent infirmities, the
injury made the conditions active and they should have been added to the claim.

Upon review, we find no error in the OOJ’s findings, as affirmed by the Board,
denying the addition of patellofemoral arthritis and knee pain to the claim and closing the
claim for TTD benefits. At the outset we note that that knee pain is a symptom, not a
diagnosis, and cannot be added to the claim. See Owens v. Bundy Auger Mining, Inc., No.
20-0664, 2022 WL 10218876 at *3 (W. Va. Oct. 18, 2022) (memorandum decision)
(“Thoracic pain and muscle spasms are symptoms, not diagnoses, and therefore cannot be
added to the claim.”). Regarding the addition of preexisting conditions to the claim, the
Supreme Court of Appeals of West Virginia has previously 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

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injury results in a [discrete] new injury, that new injury may be found
compensable.

Gill v. City of Charleston, 236 W. Va. at 738, 783 S.E.2d at 858, syl. pt. 3. Furthermore,

[a] claimant’s disability will be presumed to have resulted from the
compensable injury if: (1) before the injury, the claimant’s preexisting
disease or condition was asymptomatic, and (2) following the injury, the
symptoms of the disabling disease or condition appeared and continuously
manifested themselves afterwards. There still must be sufficient medical
evidence to show a causal relationship between the compensable injury and
the disability, or the nature of the accident, combined with the other facts of
the case, raises a natural inference of causation. This presumption is not
conclusive; it may be rebutted by the employer.

Syl. Pt. 5, Moore v. ICG Tygart Valley, LLC, No. 20-0028, __ W. Va. __, 879 S.E.2d 779
(2022) (emphasis added).

Here, Ms. Walker fails to demonstrate that any preexisting conditions are
compensable under Gill or Moore. Per Gill, Ms. Walker must demonstrate a discrete new
injury which, as noted by the OOJ, is not established by the medical evidence of record.
Likewise, per Moore, Ms. Walker must demonstrate a causal relationship between the
compensable injury and the disability. However, Ms. Walker’s arguments on appeal fail to
establish such a connection. While Dr. Lavender completed the Diagnosis Update form
seeking the addition of patellofemoral arthritis to the claim, his clinical notes clearly
indicate that he did not believe Ms. Walker’s knee was the source of her pain. Dr. Thaxton
also reviewed the claim and opined that Dr. Lavender’s Diagnosis Update form did not
support that patellofemoral arthritis was caused by the work injury. Moreover, several
physicians pointed out inconsistencies and exaggerations in Ms. Walker’s reports of pain.
Based on the foregoing, we find that the facts do not warrant adding patellofemoral arthritis
as there was not “sufficient medical evidence to show a causal relationship between the
compensable injury and the disability, or the nature of the accident.” Moore, __ W. Va. at
__, 879 S.E.2d at 781, syl. pt. 5, in part. Accordingly, Ms. Walker is entitled to no relief in
this regard.

Regarding TTD benefits, we likewise find that Ms. Walker is entitled to no relief.
“[T]emporary total disability benefits should be terminated when a claimant either has
reached his MMI from the industrial accident, or has been medically certified to return to
work.” Mitchell v. State Workmen’s Comp. Comm’r, 163 W. Va. 107, 113, 256 S.E.2d 1,
7 (1979). Here, the only compensable condition is contusion of the left knee. On August
11, 2020, Dr. Felder opined that Ms. Walker could return to work with modified duty and
that she could likely return to full duty two weeks later. At that time, the claim administrator
issued a thirty-day notice that Ms. Walker’s TTD benefits would be suspended unless she

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provided additional medical evidence demonstrating that the benefits should continue,
which she did not do. Further, Dr. Guberman placed Ms. Walker at MMI for the left knee
contusion in November of 2020. Given the foregoing, the OOJ, as affirmed by the Board,
did not err in denying Ms. Walker additional TTD benefits.

Accordingly, we affirm.

Affirmed.

ISSUED: February 2, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Charles O. Lorensen

Judge Thomas E. Scarr, not participating

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