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 STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

JODI D. JOHNSON,

Claimant Below, Petitioner

vs.) No. 19-0766 (BOR Appeal No. 2053943)

(Claim No. 2015022057)

 

THE HOMER LAUGHLIN CHINA COMPANY, 

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Jodi D. Johnson, by Counsel Patrick K. Maroney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review (“Board of Review”). The Homer 

Laughlin China Company, by Counsel Lucinda L. Fluharty, filed a timely response.

The issue on appeal is medical benefits. The claims administrator denied authorization of 

a total left knee replacement on October 9, 2017. The Workers’ Compensation Office of Judges

(“Office of Judges”) affirmed the decision in its January 23, 2019, Order. The Order was affirmed 

by the Board of Review on August 5, 2019.

The Court has carefully reviewed the records, written arguments, and appendices contained 

in the briefs, and the case is mature for consideration. 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. Johnson, a handler, was injured in the course of her employment on February 10, 2015, 

when she slipped and fell on ice. Treatment notes from River Valley Health Partners that day 

indicate Ms. Johnson was treated for a leg contusion and released to return to full duty work. The 

claim was held compensable for left lower leg contusion on February 18, 2015.

A left knee MRI was performed on March 19, 2015, which showed a complex tear of the 

medial meniscus, partial versus complete tear of the anterior cruciate ligament, a sprain of the 

proximal fibular collateral ligament, a marrow contusion with a nondisplaced fracture of the 

femoral condyle, small to moderate joint effusion, and partial full thickness articular defects in the 

FILED

November 6, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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patellofemoral compartment. Left knee medial meniscus tear and left knee anterior cruciate 

ligament tear were added to the claim on May 14, 2015. On June 2, 2015, a left knee x-ray showed 

status post anterior cruciate ligament tear and small joint effusion. A left knee MRI was performed 

on September 21, 2015, and showed intact anterior cruciate ligament repair, possible meniscal 

retear, moderate to large joint effusion, and stable partial and full thickness articular defects. 

A June 21, 2016, operative note by Marcy Dickey, M.D., indicates Ms. Johnson underwent 

anterior cruciate ligament reconstruction in May of 2015 but continued to have pain despite 

physical therapy and injections. An MRI showed a possible meniscus tear. Dr. Dickey found 

during surgery that the prior anterior cruciate ligament tear was 75% degraded. The post-operative 

diagnoses were left knee anterior cruciate ligament graft tear and chondromalacia of the medial 

femoral condyle and lateral patellar plica. A left knee x-ray was performed on August 18, 2016, 

and showed no acute injury. There was evidence of a prior anterior cruciate ligament repair and 

realignment and mild varus deformity.

In an October 3, 2016, treatment note, Dr. Dickey noted that Ms. Johnson reported left 

knee pain. Dr. Dickey diagnosed chronic left knee pain. He recommended Ms. Johnson continue 

light duty work and stated that there was no further treatment he could offer. He referred the 

claimant to James Kerrigan, M.D. On October 31, 2016, Dr. Kerrigan opined that Ms. Johnson’s 

left knee anterior cruciate ligament graft failed. X-rays showed posttraumatic left knee arthritis. 

Dr. Kerrigan stated that the only option left was a total left knee replacement. He opined that 

posttraumatic left knee arthritis should be added to the claim and a total knee replacement should 

be authorized. 

Dennis Glazer, M.D., performed a file review on November 29, 2016, in which he opined 

that Ms. Johnson’s left knee osteoarthritis preexisted the compensable injury. Dr. Glazer stated 

that a left knee MRI performed one month prior to the injury showed significant changes in the 

femoral condyle, medial compartment, and lateral compartment. 

On July 20, 2017, Dr. Dickey noted that Ms. Johnson wished to proceed with a total knee 

replacement. Dr. Dickey opined that the left knee osteoarthritis “within a reasonable degree of 

certainty” resulted from the work-related anterior cruciate ligament tear. The claims administrator 

denied a request for a total left knee replacement on October 9, 2017. On December 18, 2017, Ms. 

Johnson returned to Dr. Dickey and reported severe left knee pain after trying to get up from the 

floor a week prior. Dr. Dickey diagnosed history of left anterior cruciate ligament repair, 

deficiency of anterior cruciate ligament, and left knee arthritis. Dr. Dickey recommended a total 

knee replacement. The claimant was not a good candidate for a second anterior cruciate ligament 

reconstruction due to degenerative changes in the knee. 

Ira J. Ungar, M.D., performed an independent medical evaluation on January 15, 2018, in 

which he found no evidence of instability in the left knee. He opined that Ms. Johnson had reached 

maximum medical improvement for her compensable injury and that she required no further 

treatment. Dr. Ungar assessed 11% impairment. 
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The Office of Judges affirmed the claims administrator’s denial of a total left knee 

replacement in its January 23, 2019, Order. It found that the evidence indicates the surgery was 

requested to treat left knee osteoarthritis, which is not a compensable condition in the claim. The 

Office of Judges found no evidence that the treating physician, Dr. Dickey, requested the addition 

of the condition to the claim. Therefore, the surgery is clearly not aimed at treating a compensable 

injury. The Office of Judges noted that Dr. Ungar found in his evaluation that Mr. Johnson had 

reached maximum medical improvement for her compensable injury and that no further treatment 

was required. The Office of Judges therefore concluded that the requested left knee replacement 

was properly denied. The Board of Review adopted the findings of fact and conclusions of law of 

the Office of Judges and affirmed its Order on August 5, 2019.

After review, we agree with the reasoning and conclusions of the Office of Judges as 

affirmed by the Board of Review. A claimant is entitled to medical treatment for compensable 

conditions. The evidence indicates that the requested left knee surgery is aimed at treating left knee 

osteoarthritis, which has not been held compensable. Therefore, the treatment was properly denied. 

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: November 6, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker 

Justice Evan H. Jenkins

Justice John A. Hutchison