Charleston Area Medical Center, Inc. v. Kathy Bragg

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
CHARLESTON AREA MEDICAL CENTER, INC., May 22, 2023
Employer Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 23-ICA-132 (JCN: 2020021700)

KATHY BRAGG,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Charleston Area Medical Center, Inc. (“CAMC”) appeals the March 3,
2023, order of the Workers’ Compensation Board of Review (“Board”). Respondent Kathy
Bragg filed a timely response.1 Petitioner did not file a reply. The issue on appeal is whether
the Board erred in reversing the claim administrator’s order denying arthroscopic revision
surgery and denying a motion to reopen 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.

Ms. Bragg, a registered nurse, was injured in the course of, and as a result of her
duties on March 24, 2020, while employed by CAMC. Specifically, Ms. Bragg sustained
an injury to her right knee as she stepped down from a stool. The claim was eventually held
compensable for “other tear of lateral meniscus of the right knee.” On May 8, 2020, Ms.
Bragg underwent an arthroscopy of the right knee with chondroplasty of the patella,
trochlea, medial femoral condyle, and lateral femoral condyle, with partial medial and
lateral meniscectomy, which was performed by David Ede, M.D. Ms. Bragg continued to
suffer pain after her surgery, and Dr. Ede recommended a repeat surgery.

Marsha Bailey, M.D., performed an independent medical evaluation (“IME”) of Ms.
Bragg on September 10, 2020. Dr. Bailey opined that Ms. Bragg sustained a right knee
sprain/strain and a right knee medial meniscal tear treated by an arthroscopic partial medial

1
CAMC is represented by H. Dill Battle III, Esq. Kathy Bragg is represented by
William B. Gerwig III, Esq.

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meniscectomy, both of which were attributable to the work-related injury. According to
Dr. Bailey, the injury was superimposed on a “61-year-old right knee with
tricompartmental degenerative joint disease and arthrosis.” As such, Dr. Bailey opined that
Ms. Bragg’s symptoms were attributable to both her work-related injury and her
preexisting conditions. Although Dr. Bailey recommended authorizing the repeat surgery
requested by Dr. Ede, she noted that it was highly unlikely that a second surgery would
relieve all of Ms. Bragg’s complaints given her preexisting degenerative conditions.

Based on Dr. Bailey’s report, the claim administrator authorized the second surgery.
Dr. Ede’s operative report, dated October 2, 2020, indicated that a total meniscectomy of
the posterior horn of the medial meniscus was performed, and it noted that unstable Grade
2 chondromalacia changes of the patellar and trochlear surfaces were observed. On January
5, 2021, Ms. Bragg underwent a functional capacity evaluation and was placed in the light
physical demand level.

On March 11, 2021, Dr. Bailey issued a second report, indicating that she had
reviewed Ms. Bragg’s medical records and reexamined her. Dr. Bailey opined that Ms.
Bragg’s continued symptoms were solely a result of her preexisting conditions and found
that she had reached maximum medical improvement (“MMI”) with regard to the
compensable injury. Based on Dr. Bailey’s report, the claim administrator suspended Ms.
Bragg’s temporary total disability (“TTD”) benefits.

Dr. Bailey issued an addendum report on April 5, 2021, reiterating her opinion that
Ms. Bragg was at MMI for her compensable injury and that no further treatment would
relieve her continued symptoms. Indeed, Dr. Bailey opined that Ms. Bragg’s right knee
would likely never be pain free, regardless of treatment. Subsequently, Dr. Ede authored a
letter, indicating that he had reviewed Dr. Bailey’s reports, and disagreed with her
assessment. Specifically, Dr. Ede noted that Dr. Bailey omitted the diagnosis of medial and
lateral meniscus tears in determining that Ms. Bragg had reached MMI; mischaracterized
the degree of Ms. Bragg’s arthritis; and found that Ms. Bragg was capable of performing
all preinjury activities, unrestricted, which was contrary to her having been placed in the
light physical demand level following her functional capacity evaluation. As Dr. Ede
observed, the functional capacity evaluation placed general duty nursing in the medium
physical demand level, a level which Ms. Bragg was not able to meet.

Dr. Bailey issued a response to Dr. Ede’s correspondence, stating that her opinion
remained unchanged and was based upon medical evidence and the degenerative
conditions in Ms. Bragg’s knee. The claim administrator closed the claim for TTD benefits
on April 17, 2021. On August 10, 2022, Ms. Bragg requested authorization for a third
arthroscopic surgery and to reopen the claim for TTD benefits. Medical reports from Dr.
Ede were included with the request, and he noted that Ms. Bragg’s knee throbbed with pain
and gave out on her at times. On September 23, 2022, Dr. Bailey opined that Dr. Ede’s
request for a third surgery and his request to reopen the claim for TTD benefits were

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unrelated to the compensable injury. Dr. Bailey supported her opinion with medical records
that purportedly showed that Ms. Bragg’s preexisting conditions were symptomatic and
that she sought treatment for them prior to the injury. However, these records were never
introduced into evidence during the proceedings below. On November 2, 2022, the claim
administrator denied authorization for the arthroscopic revision surgery and denied
reopening the claim for TTD benefits.

By order dated March 3, 2023, the Board reversed the claim administrator’s order
and ordered that the arthroscopic revision surgery be authorized. The Board acknowledged
Dr. Bailey’s opinion that the surgery was not medically related or reasonably necessary to
treat the compensable injury and, rather, was aimed at treating Ms. Bragg’s preexisting
degenerative conditions. However, the Board concluded that Dr. Ede’s opinion that the
surgery was necessary to treat the compensable injury was more persuasive, as he had been
treating Ms. Bragg for the compensable injury and had performed two surgeries on her.
Consequently, the Board remanded the matter to the claim administrator with instructions
to determine the period Ms. Bragg was temporarily and totally disabled in accordance with
its ruling. CAMC now appeals and filed a motion to stay payment of any TTD benefits
granted. By order dated April 20, 2023, this Court refused the stay.

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.

Duff v. Kanawha Cnty. Comm’n, 247 W. Va. 550, __, 882 S.E.2d 916, 921 (Ct. App. 2022).

On appeal, CAMC argues that the Board was clearly wrong in authorizing the
arthroscopic revision surgery and reopening the claim for TTD benefits. According to
CAMC, the evidence demonstrates that Ms. Bragg had reached MMI for her compensable
injury and that any further treatment would have been aimed at treating her preexisting

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degenerative joint disease. CAMC contends that Dr. Bailey’s opinion that Ms. Bragg’s
ongoing complaints were due to her preexisting degenerative joint disease and
osteoarthritis was reliable and based upon objective medical evidence, including medical
records predating the compensable injury which indicate that Ms. Bragg was symptomatic
and sought treatment for her preexisting conditions. Lastly, CAMC argues that the Board
misapplied Moore v. ICG Tygart Valley, LLC, 247 W. Va. 292, 879 S.E.2d 779 (2022) to
this case. In sum, CAMC avers that the requested surgery was not medically necessary for,
nor reasonably related to, the compensable injury, and the Board erred in authorizing the
same and reopening the claim for TTD benefits based on that surgery.2

We disagree. West Virginia Code § 23-4-3(a)(1) (2005) provides that the claims
administrator must provide medically related and reasonably required sums for healthcare
services, rehabilitation services, durable medical and other goods, and other supplies. Here,
Dr. Ede, Ms. Bragg’s treating physician, provided treatment for the compensable injury
over the course of the underlying proceedings and consistently opined that Ms. Bragg’s
ongoing symptoms were related to the compensable injury and required a third surgery. In
support of its assertion that the surgery should not be authorized, CAMC argues (1) that
Dr. Bailey’s opinion was more credible than Dr. Ede’s opinion, and (2) that Ms. Bragg’s
symptoms were related to her preexisting degenerative issues. However, we find that the
Board’s decision was supported by the evidence of record.

As noted by Dr. Ede, Dr. Bailey did not consider Ms. Bragg’s diagnosis of medial
and lateral meniscus tears in determining that Ms. Bragg had reached MMI and
mischaracterized the degree of Ms. Bragg’s arthritis. Further, Dr. Bailey’s opinions of Ms.
Bragg’s physical demand abilities were contradicted by the functional capacity evaluation.
Importantly, Dr. Bailey based her opinions on medical records relating to Ms. Bragg’s
preexisting condition that were never submitted before the Board below. To be clear, there
was no pre-injury medical evidence of any preexisting degenerative conditions submitted
before the Board. Based on the evidence before it, the Board concluded that Dr. Ede’s
opinion was more persuasive than Dr. Bailey’s opinion, given that he was Ms. Bragg’s
treating physician and that he had performed two surgeries on Ms. Bragg and continued to
believe her symptomology was related to the compensable injury. We find that this
conclusion is based upon sufficient evidence in the record, and we decline to disturb any
credibility determinations made by the Board. See Martin v. Randolph Cnty Bd. of Educ.,

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Although CAMC raises issue with the Board’s citation to and application of
Moore, we find that the holdings set forth in Moore are immaterial to the limited facts of
the case at bar. As noted herein, there was no evidence submitted to the Board that Ms.
Bragg was symptomatic as a result of her preexisting degenerative condition prior to the
compensable injury. In recommending against authorizing the third arthroscopic surgery,
Dr. Bailey relied upon evidence that was not submitted into the Board’s record and that did
not specify which knee was allegedly symptomatic prior to the injury. Accordingly, under
the limited circumstances of this case, we find no error.
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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 . . . .”). Therefore, we conclude that the Board did not err in authorizing the
requested surgery.

Next, in order to reopen a claim for TTD benefits, a claimant must show an
aggravation or progression of a compensable condition or facts not previously considered.
See W. Va. Code §§ 23-5-2 (2005) to 23-5-3 (2021). Because we conclude that the Board
did not err in authorizing the requested surgery, we find no error in its decision to reopen
the claim for TTD benefits. Ms. Bragg’s newly authorized surgery is a fact not previously
considered by the claim administrator in determining whether Ms. Bragg is entitled to
further TTD benefits. As such, CAMC’s argument in this regard is without merit.

Accordingly, we affirm the Board’s order reversing the claim administrator’s order
denying arthroscopic revision surgery and denying a motion to reopen the claim for
temporary total disability benefits.

Affirmed.

ISSUED: May 22, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen

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