STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS FILED 

October 10, 2017 SANDY FISHER, RORY L. PERRY II, CLERK 

Claimant Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 17-0242 (BOR Appeal No. 2051540) 

(Claim No. 2016028157) 

FREEDOM BANCSHARES, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Sandy Fisher, by Robert L. Stultz, her attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. Freedom Bancshares, Inc., by Steven 

K. Wellman, its attorney, filed a timely response. 

The issue on appeal is whether the alleged knee injury suffered by Ms. Fisher on May 4, 

2016, is compensable. On May 16, 2016, the claims administrator rejected the claim and 

determined that the injury did not occur directly resulting from occupational duties. On August 

26, 2016, the Workers’ Compensation Office of Judges affirmed the claims administrator’s 

rejection of the claim. This appeal arises from the Board of Review’s Final Order dated February 

17, 2017, in which the Board affirmed the rejection of the claim by the Office of Judges. 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. Fisher, a teller for Freedom Bank, filed a claim for workers’ compensation benefits 

following an incident on May 4, 2016. She claimed that she injured her right knee when she 

tripped over a rug while leaving the restroom. She was taken by EMS to United Hospital Center 

for treatment. In a discharge summary, Michael Angotti, M.D., noted that the primary diagnosis 

was acute meniscal tear. 

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Prior to the alleged injury on May 4, 2016, Ms. Fisher had previously been treated for 

right knee pain. On February 25, 2016, she sought treatment with Dr. Angotti due to her knee 

pain. Upon x-ray and examination, Dr. Angotti diagnosed Ms. Fisher with right knee 

degenerative disease. Ms. Fisher was referred for an orthopedic consultation and was seen by 

Joseph Fazalare, M.D., on March 23, 2016. Dr. Fazalare noted that Ms. Fisher complained of 

right knee pain for six to eight months. He administered an injection of medicine to the medial 

joint line and noted that an MRI would be necessary if her condition did not improve. Ms. Fisher 

returned to Dr. Fazalare one week before the alleged work-related injury, on April 28, 2016. Dr. 

Fazalare documented sharp medial pain and effusion, which was new since the previous visit. He 

diagnosed Ms. Fisher with a right medial meniscus tear and internal derangement. On May 3, 

2016, the day before the alleged injury, Ms. Fisher returned to Dr. Angotti. She reported that her 

knee pain had not improved. 

On May 16, 2016, the claims administrator entered an Order denying Ms. Fisher’s 

application for benefits. It was determined that the injury did not occur directly from her 

occupational duties. The claims administrator noted that Ms. Fisher sought treatment for the 

same knee prior to May 4, 2016. Ms. Fisher protested the claims administrator’s decision. 

By Decision dated August 26, 2016, the Office of Judges affirmed the rejection of the 

claim by finding that Ms. Fisher had not proven by a preponderance of the evidence that she 

sustained an injury to her right knee on May 4, 2016. The Office of Judges found that the 

evidence of record demonstrates that Ms. Fisher suffered from a pre-existing condition with her 

right knee. The Office of Judges noted that on February 25, 2016, Ms. Fisher presented to her 

primary care physician, Dr. Angotti, with complaints of right knee pain with no trauma. Ms. 

Fisher had been having pain for three months before treating with Dr. Angotti. She was 

diagnosed with degenerative joint disease of the right knee. Following a referral, Ms. Fisher was 

seen by Dr. Fazalare, an orthopedic surgeon. Dr. Fazalare noted that Ms. Fisher began noticing a 

gradual onset of pain for six to eight months, without known injury. On April 28, 2016, Dr. 

Fazalare changed his primary diagnosis from osteoarthritis of the right knee to medial meniscus 

tear. The diagnosis of medial meniscus tear was prior to the alleged injury on May 4, 2016. In 

light of pre-existing clinical findings indicating a torn medial meniscus, the Office of Judges 

concluded that Ms. Fisher failed to show that her injury was a result of her accident on May 4, 

2016. The Board of Review affirmed the rejection of the claim by the Office of Judges on 

February 17, 2017. 

We agree with the reasoning and conclusions of the Office of Judges, as affirmed by the 

Board of Review. Ms. Fisher has not established that she suffered a new injury on May 4, 2016. 

The evidence of record establishes that she was diagnosed with a pre-existing medial meniscus 

tear a week prior to the alleged injury. The record supports the Board’s decision that Ms. Fisher 

did not suffer an injury in the course of and as a result from her employment. 

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. 

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Affirmed. 

ISSUED: October 10, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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