STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

December 19, 2013 

RORY L. PERRY II, CLERK 

EMMA KIDWELL, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 12-0375	 (BOR Appeal No. 2046289) 

(Claim No. 2006207028) 

GREENBRIER HOTEL CORPORATION 

(FORMERLY CSX HOTELS, INC.), 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Emma Kidwell, by Patrick Maroney, her attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. The Greenbrier Hotel Corporation, by 

H. Toney Stroud, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated February 22, 2012, in 

which the Board affirmed a July 29, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s June 22, 2010, 

decision denying Ms. Kidwell’s request for authorization of a left knee steroid injection and also 

denying her request for a referral for a knee replacement evaluation. The Court has carefully 

reviewed the records, written arguments, and appendices contained in the briefs, and the case is 

mature for consideration. 

This Court has 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 no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

Ms. Kidwell injured her left knee on October 7, 2005, when she slipped and fell while 

working as a laundress. A left knee x-ray taken on the date of injury revealed osteoarthritis and a 

June 13, 2006, MRI revealed a left medial meniscal tear with moderately advanced osteoarthritis. 

On August 31, 2006, she underwent a left knee arthroscopy to repair the torn meniscus. On 

November 8, 2006, Dr. Orphanos performed an independent medical evaluation and found that 

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Ms. Kidwell can expect to have residual symptoms due to pre-existing degenerative changes 

which are present in both knees. Ms. Kidwell’s treating physician, Dr. Pack, is now requesting 

authorization for a left knee steroid injection and a referral for a left knee replacement 

evaluation. On June 22, 2010, the claims administrator denied the requested medical treatment. 

In its Order affirming the June 22, 2010, claims administrator’s decision, the Office of 

Judges held that the requested treatment is not medically related or reasonably required for the 

treatment of the compensable left knee medial meniscal tear. Ms. Kidwell disputes this finding 

and asserts that the evidence of record demonstrates that the requested treatment is related to the 

compensable left knee meniscal tear. 

The Office of Judges found that the issue of authorization for steroid injections for the 

left knee has been previously litigated and authorization has been denied based on a finding that 

the injections have been requested for the treatment of arthritis, which is not a compensable 

component of the claim. The Office of Judges noted that Ms. Kidwell was diagnosed with preexisting osteoarthritis immediately after the compensable injury, and further noted that 

osteoarthritis has never been added as a compensable component of the claim. The Office of 

Judges then found that Ms. Kidwell’s treating physician has inexplicably changed the labeling of 

her condition from his initial diagnosis of osteoarthritis to degenerative joint disease, and finally 

to post-traumatic arthritis. Finally, the Office of Judges found that Ms. Kidwell’s current left 

knee condition is not a result of the compensable medial meniscal tear. The Board of Review 

reached the same reasoned conclusions in its decision of February 22, 2012. We agree with the 

reasoning and conclusions of the Board of Review. 

For the foregoing reasons, we find that the decision of the Board of Review is not in clear 

violation of any constitutional or statutory provision, nor is it clearly the result of erroneous 

conclusions of law, nor is it based upon a material misstatement or mischaracterization of the 

evidentiary record. Therefore, the decision of the Board of Review is affirmed. 

Affirmed. 

ISSUED: December 19, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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