STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

December 19, 2013 

RORY L. PERRY II, CLERK 

GARY B. ELLER, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 12-0696 (BOR Appeal No. 2046813) 

(Claim No. 2011014473) 

XINERGY CORPORATION/RAVEN CREST, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Gary B. Eller, by William B. Gerwig III, his attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Xinergy Corporation/Raven Crest, 

by Lisa A. Warner Hunter, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated May 25, 2012, in which 

the Board reversed a December 27, 2011, Order of the Workers’ Compensation Office of Judges. 

In its Order, the Office of Judges reversed the claims administrator’s June 1, 2011, decision 

denying Mr. Eller’s request for authorization for treatment, including surgery, and temporary 

total disability benefits. The Court has carefully reviewed the records, written arguments, and 

appendices contained in the petition, and the case is mature for consideration. 

This Court considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds that the Board of Review’s decision is based upon a material 

misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited 

circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate 

for a memorandum decision rather than an opinion. 

While at work on October 18, 2011, Mr. Eller climbed a berm, tripped, and fell down the 

other side. On April 1, 2011, the claims administrator held the claim compensable for a right 

knee contusion. He returned to work two to three days later. After the injury, Mr. Eller’s knee 

frequently popped, stung, and gave out. On April 3, 2012, Mr. Eller was working on a lawn 

mower at his home. When he straightened up from a crouched position his knee gave out and he 

fell. Three days later he visited Dr. Phillip D. Surface who found that Mr. Eller had a bucket 

1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

handle tear of the medial meniscus. Dr. Surface determined that the meniscus tear was related to 

the initial compensable injury. It was also Dr. Surface’s opinion that surgery would be necessary 

to treat the injury. 

In its decision dated June 1, 2011, the claims administrator denied Mr. Eller’s request for 

treatment, including surgery, as well as temporary total disability benefits. The claims 

administrator determined that the injury was not compensable because it happened at Mr. Eller’s 

home and not in the course of his employment. 

The Office of Judges concluded that the April of 2012 injury was an aggravation of the 

October of 2011 injury and was therefore compensable. The Office of Judges used the standards 

enumerated in Wilson v. Workers’ Compensation Commissioner, 174 W.Va. 61, 328 S.E.2d 485 

(1984), to arrive at its decision. The Office of Judges found that Mr. Eller’s deposition 

testimony, that his knee condition remained symptomatic after the October of 2011 injury, was 

credible. The Office of Judges also relied on Dr. Surface’s evaluation of Mr. Eller’s knee and his 

determination that the April of 2012 injury was connected to the work-related October of 2011 

injury. The Office of Judges ordered the authorization of treatment, including surgery, and 

temporary total disability benefits as established by appropriate medical evidence. 

The Board of Review reversed the Office of Judges’ decision on the basis that it was 

clearly wrong in view of the evidence on the whole record. The Board of Review found that the 

only compensable condition in this case was the October of 2011 knee contusion. It held that the 

record contained no evidence that the current treatment, including surgery, was medically 

necessary and reasonably required to treat the knee contusion. 

The Board of Review’s decision is based on a material misrepresentation or 

mischaracterization of the evidentiary record. The only evidence on the record regarding the 

April of 2012, injury are the reports of Dr. Surface and the accompanying MRI. Dr. Surface 

found that the April of 2012, injury was related to the compensable October of 2011 injury. He 

also determined that further treatment and surgery were necessary to treat the injury. There is no 

evidence on the record to refute his medical opinion. 

For the foregoing reasons, we find that the decision of the Board of Review is clearly the 

result of erroneous conclusions of law. Therefore, the decision of the Board of Review is 

reversed and remanded with instructions to determine the compensability of the April 3, 2011, 

injury. 

Reversed and Remanded. 

ISSUED: December 19, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin J. Davis 

Justice Margaret L. Workman 

2 
 

 

Justice Menis E. Ketchum 

DISSENTING: 

Justice Allen H. Loughry II
 

3