Aaron Underwood v. ACNR Resources, Inc.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

AARON UNDERWOOD, FILED
Claimant Below, Petitioner December 4, 2025
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
v.) No. 25-ICA-219 (JCN: 2024026434) INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

ACNR RESOURCES, INC.,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Aaron Underwood appeals the April 23, 2025, order of the Workers’
Compensation Board of Review (“Board”). Respondent ACNR Resources, Inc. (“ACNR”)
filed a response.1 Mr. Underwood did not reply. The issue on appeal is whether the Board
erred in affirming 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.

Mr. Underwood completed an Employee’s and Physician’s Report of Injury dated
August 27, 2024, alleging that he twisted his right knee at work on July 31, 2024, when he
was going through a man door. The physician’s portion, completed by Adam Klein, M.D.,
on August 22, 2024, identifies the diagnoses of primary osteoarthritis of the right knee and
right medial tibial plateau fracture. It is noted that Mr. Underwood twisted his knee at work
and his previous right knee arthroplasty now required a revision. Dr. Klein failed to classify
Mr. Underwood’s condition as an occupational injury, occupational disease, or non-
occupational.

Prior to the alleged injury at issue in the instant case, between October of 2022 and
July of 2024, Mr. Underwood was diagnosed with and treated for right knee pain and
swelling, and osteoarthritis of the right knee. On April 3, 2023, Mr. Underwood was given
a corticosteroid injection and noted some improvement, however, that was short-lived. On
April 17, 2023, Mr. Underwood underwent an MRI of his right knee revealing a fracture

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Mr. Underwood is represented by J. Thomas Greene, Jr., Esq., and T. Colin
Greene, Esq. ACNR is represented by Aimee M. Stern, Esq.

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of the right medial tibial plateau with a seven millimeter articular depression, a marrow/soft
tissue edema, a large joint effusion, a moderate Baker’s cyst, a complex tear of the posterior
horn and body of the medial meniscus with associated meniscal extrusion, complete tears
of the anterior and posterior horns as well as a horizontal cleavage tear of the lateral
meniscus, an inferior-pole apex grade 2 chondromalacia patellae, laxity of the anterior
cruciate ligament (“ACL”), laxity of the posterior cruciate ligaments (“PCL”), a possible
distal ACL tear in the appropriate clinical setting, and laxity of the MCL from degenerative
changes or a grade 2 sprain. On January 19, 2024, Mr. Underwood underwent a right
medial partial knee replacement for degenerative joint disease.

Nathan Guerriere, PA-C, authored a telephone encounter addendum report dated
July 26, 2024, noting that Mr. Underwood’s wife called regarding Mr. Underwood twisting
his right leg at work and having pain and swelling. On August 1, 2024, Mr. Underwood
underwent a right knee x-ray revealing right unicompartmental knee arthroplasty with
unchanged alignment. In his August 6, 2024, progress notes, Dr. Klein noted that Mr.
Underwood returned seven months status post right partial knee replacement and reported
9/10 pain, which started last week at work when he twisted his knee.

On December 3, 2024, Kelly Underwood, Mr. Underwood’s wife, was deposed and
testified that she called his primary care doctor on July 26, 2024, for Gabapentin for his
neuropathy; that Mr. Underwood did not suffer his work injury until July 31, 2024; and
that she called Dr. Klein’s office on August 1, 2024, about Mr. Underwood’s right knee
injury.

On December 3, 2024, Mr. Underwood was deposed, and he testified that he
suffered a work injury on July 31, 2024, when he picked up a tool bag and stepped through
a man door when his right leg twisted and popped. Mr. Underwood stated that he reported
the injury to James Harris and that he completed an accident report when he got out of the
mines. Mr. Underwood testified that he first sought treatment on August 1, 2024; that he
worked from August 1 to August 16, 2024; that he took vacation from August 18 to August
25, 2024; that after his vacation, he could not work because of severe pain; and that he has
not returned to work since August of 2024, nor has he attempted to return to work. He
stated that he had a partial knee replacement in January by Dr. Klein and returned to work
on April 15, 2024. Mr. Underwood testified that when he had symptoms in 2022, they did
not result from an injury, and that he did not have any treatment for arthritis in his right
knee before 2022.

Ronald Fadel, M.D., an orthopedic surgeon, authored a record review report dated
December 19, 2024. Dr. Fadel opined that Mr. Underwood’s early imaging strongly
suggests the presence of progressive, preexisting changes in Mr. Underwood’s right knee,
which would eventually require a total knee replacement. Dr. Fadel stated that the available
objective data fail to offer conclusive information regarding whether Mr. Underwood

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suffered a discrete new injury on July 31, 2024, or simply aggravated his preexisting right
knee condition. Further, Dr. Fadel opined that the medical records indicated that Mr.
Underwood would have required revision surgery with or without the workplace incident
because there was pre-existing, progressive degeneration of the lateral patellar femoral
compartments, ACL deficiency/laxity and femoral compartment lysis; and whether or not
these pathologies were aggravated by the twist injury on July 31, 2024, is not objectively
established in the records he reviewed.

On April 23, 2025, the Board affirmed the claim administrator’s order rejecting the
claim. The Board found that Mr. Underwood failed to establish that he sustained a discrete
new injury on July 31, 2024. Mr. Underwood 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).

Mr. Underwood argues that prior to his injury on July 31, 2024, he was working full
duty without restrictions and, following the injury, he required a knee replacement. Mr.
Underwood cited Manning v. State Comp. Comm’r, 124 W. Va. 620, 22 S.E.2d 299 (1942)
in support of his arguments. The Supreme Court of Appeals of West Virginia held in
Manning that, “[a] diseased workman who in the course of and resulting from his
employment receives an injury, which aggravates or accelerates the disease, to the extent
of causing a disability sooner than would otherwise have occurred, is entitled to
compensation from the Workmen's Compensation Fund.” Id. at 620, 22 S.E.2d at 300, syl.
pt. 3.

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However, the Supreme Court of Appeals of West Virginia also held in Gill v. City
of Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016), 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 injury results in a
[discrete] new injury, that new injury may be found compensable.

Id. at 738, 783 S.E.2d at 858, syl. pt. 3. Also see Blackhawk Mining, LLC v. Argabright,
251 W. Va. 549, 915 S.E.2d 7 (Ct. App. 2023), aff'd, No. 23-381, 2024 WL 3984505 (W.
Va. Aug. 27, 2024) (memorandum decision) (compensability is limited only to discrete
new injuries and disabilities that manifest following the compensable injury.)

Here, the Board found that:

[i]t is evident from the evidence of record that [Mr. Underwood] was
receiving treatment for his right knee prior to the alleged work injury. The
right knee MRI of April 17, 2023, revealed several non-compensable
conditions, including degenerative changes, a fracture of the right medial
tibial plateau, tears of the anterior and posterior horns, laxity of the ACL and
PCL, and laxity of the MCL from degenerative changes or a grade 2 sprain.
Additionally, [Mr. Underwood] had a partial knee replacement for
degenerative joint disease on January 19, 2024; and Dr. [Fadel] reported that
[Mr. Underwood] would have needed this surgery whether or not he suffered
a discrete new injury on July 31, 2024, or simply aggravated his preexisting
right knee condition. [Mr. Underwood’s] diagnoses did not change after the
July 31, 2024, incident. After considering the evidence of record, it is found
that [Mr. Underwood] did not sustain a discrete new injury on July 31, 2024.

Upon review, we conclude that the Board was not clearly wrong in finding that the
preponderance of the evidence does not support the finding that Mr. Underwood suffered
a discrete new injury on July 31, 2024. The Board clearly found Dr. Fadel’s medical
testimony more credible than Dr. Klein’s opinion. 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 affirming the
claim administrator’s order, which rejected the claim.

Accordingly, we affirm the Board’s April 23, 2025, order.

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Affirmed.

ISSUED: December 4, 2025

CONCURRED IN BY:

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

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