City of Wheeling v. David Gilbert

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

CITY OF WHEELING, FILED
Employer Below, Petitioner October 24, 2025
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
v.) No. 25-ICA-138 (JCN: 2024010987) INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

DAVID GILBERT,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner City of Wheeling (“Wheeling”) appeals the March 3, 2025, order of the
Workers’ Compensation Board of Review (“Board”). Respondent David Gilbert 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 denied the addition of scapholunate
instability of the right wrist and scapholunate ligament tear of the right wrist as
compensable conditions of 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.

Mr. Gilbert, a firefighter employed by Wheeling, presented to WVU Urgent Care
on December 7, 2023, for an occupational injury to his right wrist occurring on December
1, 2023. According to Mr. Gilbert, he was getting into an ambulance and slipped and fell
onto a stretcher with his right hand outstretched. Mr. Gilbert underwent an x-ray of the
right wrist, revealing no bony abnormalities. The assessment was right wrist sprain and
right wrist pain. Mr. Gilbert completed an Employees’ and Physicians’ Report of
Occupational Injury or Disease dated December 7, 2023, indicating that he injured his wrist
on December 1, 2023, when he tripped and caught himself while getting into an ambulance.
The physician’s section, completed by Danielle Palmer, NP, at WVU Urgent Care,
indicated that Mr. Gilbert sustained a right wrist sprain as a direct result of an occupational
injury.

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

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On December 11, 2023, Mr. Gilbert was seen by Ross Tennant, NP, for an
occupational injury to his right hand. Mr. Gilbert reported pain in the right wrist, constant
clicking, a popping sensation with certain movements, and that it feels like his wrist pops
out of place at times. Nurse Tennant indicated that Mr. Gilbert hyperextended his wrist
during the injury. Mr. Gilbert denied any previous history of injuries to his right wrist. An
MRI of the right wrist was unremarkable. The assessment was a right wrist sprain.

Mr. Gilbert underwent occupational therapy at The Hand Rehabilitation Center from
December 13, 2023, through November 20, 2024. The assessment was a right wrist sprain.
Mr. Gilbert reported that he was working out later the same day as the compensable injury
when he felt something move in his right wrist. It was noted that Mr. Gilbert had instability
in the radial wrist with head of radius/scaphoid/metacarpal shifting during wrist flexion,
that the ulnar styloid was more prominent on the right when compared to the left, and that
there was possible left ECU subluxation over the ulnar styloid. The records indicate that
Mr. Gilbert reported he had joint instability in his right wrist prior to the compensable fall.
The claim administrator issued an order dated December 14, 2023, holding the claim
compensable for right wrist sprain.

On December 29, 2023, Mr. Gilbert underwent an MRI of his right wrist, revealing
that the scapholunate ligament was grossly intact. On March 1, 2024, Mr. Gilbert
underwent an x-ray of his right wrist, revealing no acute fracture or dislocation. Mr. Gilbert
was seen by Charles A. Tracy, M.D., on March 1, 2024, for ongoing right wrist pain. Mr.
Gilbert reported persistent pain over the dorsum and dorsal radial aspect of the wrist and a
shift in his wrist bones with certain activities. Dr. Tracy noted that a Watson maneuver
elicited discomfort at the scapholunate interval. Dr. Tracy reported that Mr. Gilbert’s
symptoms, location of discomfort, and the dynamic instability were suspicious for a
scapholunate ligament injury, most likely a partial tear of the dorsal ligament and/or
membranous portion. Dr. Tracy recommended right wrist arthroscopy.

Mr. Gilbert underwent right wrist arthroscopy at Wheeling Hospital on June 3, 2024.
The operative report indicated that the post-operative diagnosis was a complete tear of the
scapholunate ligament of the right wrist. It was reported that the scapholunate ligament
was inspected and found to be completely torn with a positive drive-through test into the
midcarpal joint. On June 7, 2024, Mr. Gilbert had a post-operative follow-up with Dr.
Tracy, who reported that Mr. Gilbert had a complete separation of the scapholunate
ligament with a positive drive-through test. Dr. Tracy recommended scapholunate ligament
reconstruction with the internal brace technique. Dr. Tracy submitted a Diagnosis Update
form dated June 11, 2024, requesting that scapholunate instability, right wrist, and ligament
tear scapholunate right wrist be added as compensable conditions in the claim.

On July 23, 2024, Leonard J. Buck, M.D., completed a Physician File Review of
Mr. Gilbert’s medical records. Dr. Buck noted that occupational therapy records indicated

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Mr. Gilbert had episodes of instability of the right wrist that predated the compensable
injury, and that the MRI performed after the compensable injury was normal and showed
the scapholunate ligament to be intact. It was noted that the occupational therapy records
indicated that Mr. Gilbert’s wrist popped again when he was working out after his
compensable injury. Dr. Buck opined that Mr. Gilbert had a scapholunate ligament tear
with instability, but that the documentation does not support that Mr. Gilbert had a
scapholunate ligament tear prior to the MRI of December 29, 2023. He further opined that
the conditions were not related to the compensable injury.

On July 31, 2024, the claim administrator issued an order denying the addition of
scapholunate instability of the right wrist and scapholunate ligament tear of the right wrist
as compensable conditions of the claim. Mr. Gilbert protested this claim.

Mr. Gilbert was deposed on November 11, 2024, and testified that he injured his
right wrist on December 1, 2023, when he tripped while getting into a vehicle and
attempted to catch himself. Mr. Gilbert stated that he hooked his thumb on the headrest of
the stretcher, which injured his wrist. Mr. Gilbert stated that he continued to work, and for
several hours, the pain was intense, but the pain lessened throughout the day. Mr. Gilbert
testified that while doing a leg workout later that day, he felt a pop in his wrist when he
was putting weight on the barbell. Mr. Gilbert stated that firefighters are encouraged to
work out while at work and that facilities are available at the station to work out. Mr.
Gilbert testified that he did not tell anybody at hand therapy that he had problems with his
right wrist prior to the compensable injury. He stated that he might have mentioned that he
had some prior issues with his left wrist, such as when he was rock climbing that required
him to adjust his left wrist to use it functionally. Regarding the physical therapy note dated
December 13, 2023, which reported that he had some joint instability in his right wrist prior
to the compensable injury, Mr. Gilbert testified that he believed that note was based upon
a miscommunication. Mr. Gilbert further testified that he was describing an issue with his
left wrist and trying to say that he never had any issues with his right wrist.

On March 3, 2025, the Board reversed the claim administrator’s order denying the
addition of scapholunate instability of the right wrist and scapholunate ligament tear of the
right wrist as compensable conditions of the claim. The Board found that Mr. Gilbert
established that scapholunate instability of the right wrist and ligament tear of the
scapholunate right wrist are causally related to the compensable injury. 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

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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.

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

Wheeling argues that the Board failed to address the fact that none of Mr. Gilbert’s
medical records document right wrist swelling, bruising, or ecchymosis, which Dr. Buck
explained would have been present had Mr. Gilbert suffered an acute tear of the
scapholunate ligament. We disagree.

Here, the Board found that Mr. Gilbert established with medical evidence that
scapholunate instability of the right wrist and ligament tear of the scapholunate right wrist
are causally related to the compensable injury. The Board further found that Mr. Gilbert’s
testimony regarding the inconsistency in the occupational therapy records was credible.
Finally, the Board found that Dr. Buck was not reliable as his opinion was not supported
by the medical evidence.

Upon review, we conclude that the Board was not clearly wrong in finding that Mr.
Gilbert established with medical evidence that scapholunate instability of the right wrist
and ligament tear of the scapholunate right wrist are causally related to the compensable
injury. 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.

Accordingly, we affirm the Board’s March 3, 2025, order.

Affirmed.

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ISSUED: October 24, 2025

CONCURRED IN BY:

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

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