STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

KAREN M. LEMASTER, FILED 

June 22, 2016 Claimant Below, Petitioner RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

vs.) No. 15-0757	 (BOR Appeal No. 2050027) 

(Claim No. 2014005218) 

APPLE VALLEY WASTE SERVICES, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Karen M. Lemaster, by Robert Stultz, her attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. Apple Valley Waste Services, Inc., by 

Alyssa Sloan, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated July 6, 2015, in which 

the Board affirmed a November 26, 2014, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s May 23, 2014, 

decision denying a request to add chondromalacia and degenerative arthritis of the left knee as 

additional compensable diagnoses, denying a request for authorization of one Synvisc injection, 

and denying a request for authorization of additional temporary total disability benefits. 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. Lemaster injured her left knee on August 5, 2013, when she sustained a twisting-type 

injury while exiting a vehicle in the course of her employment. Her claim for workers’ 

compensation benefits was subsequently held compensable for a left knee strain. In October of 

2013, Ms. Lemaster sought treatment with Bruce Edwards, M.D. He diagnosed her with 

degenerative arthritis of the left knee and chondromalacia, and opined that she should not return 

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to work pending further evaluation. Dr. Edwards later opined that Ms. Lemaster’s current 

condition is the result of pain and inflammation arising from the August 5, 2013, injury. Dr. 

Edwards further stated that the diagnosis of degenerative arthritis refers to new-onset crepitation 

in the patellofemoral joint, which Ms. Lemaster denies experiencing prior to the August 5, 2013, 

injury. On March 1, 2014, Dr. Edwards filed a request for authorization of one Synvisc injection 

for the purpose of treating Ms. Lemaster’s pain. In the same document, Dr. Edwards also 

indicated that Ms. Lemaster is temporarily totally disabled. On March 10, 2014, Dr. Edwards 

completed a diagnosis update request listing Ms. Lemaster’s primary diagnosis as 

chondromalacia and her secondary diagnosis as degenerative arthritis of the knee. 

On March 20, 2014, Robert Smith, M.D., performed an orthopedic evaluation. He opined 

that the chondromalacia and subluxation of the patella revealed via an MRI performed on 

January 29, 2014, were not caused by the August 5, 2013, injury because the record indicates 

that Ms. Lemaster did not strike her knee during the incident. Dr. Smith further opined that Ms. 

Lemaster does possess anatomical factors which would contribute to a finding of degenerative 

changes in the lateral facet of the knee, which are associated with chondromalacia. He also stated 

that the diagnosis of degenerative changes represents an incidental finding which is unrelated to 

the August 5, 2013, injury. Additionally, Dr. Smith indicated that the only diagnosis arising from 

the August 5, 2013, injury is a left knee sprain. He opined that the request for authorization of a 

Synvisc injection arises from the treatment of non-work-related degenerative disease and is 

unrelated to the August 5, 2013, injury. Finally, Dr. Smith authored a statement indicating that 

Ms. Lemaster is capable of returning to work at full-duty. 

On May 23, 2014, the claims administrator denied Dr. Edwards’s request for 

authorization of one Synvisc injection. In the same decision, the claims administrator denied Dr. 

Edwards’s request to add chondromalacia and degenerative arthritis of the left knee as 

compensable diagnoses. Also in its May 23, 2014, decision, the claims administrator denied a 

request from Dr. Edwards for additional temporary total disability benefits.1 In its Order 

affirming the claims administrator’s decision, the Office of Judges held that the diagnoses of 

chondromalacia and degenerative arthritis of the left knee are not compensable, the request for 

authorization of a Synvisc injection arises from the treatment of non-compensable diagnoses, and 

the request for additional temporary total disability benefits also arises from the treatment of 

non-compensable diagnoses. The Board of Review affirmed the reasoning and conclusions of the 

Office of Judges in its decision dated July 6, 2015. On appeal, Ms. Lemaster asserts that the 

diagnoses of chondromalacia and degenerative arthritis of the left knee should be added as 

compensable diagnoses because her treating physician, Dr. Edwards, is of the opinion that the 

diagnoses arise from the August 5, 2013, injury. Further, she asserts that she is entitled to 

authorization of the requested Synvisc injection because Dr. Edwards has opined that it is 

medically necessary and reasonably required for the treatment of the August 5, 2013, injury. 

Finally, Ms. Lemaster asserts that the evidence of record demonstrates that she is entitled to 

additional temporary total disability benefits. 

1 Temporary total disability benefits were previously authorized from October 4, 2013, through 

January 17, 2014. 

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Regarding the request to add chondromalacia and degenerative arthritis as compensable 

components of the claim, the Office of Judges found that Dr. Edwards’s opinion that the 

diagnoses are work-related is not persuasive. In that regard, the Office of Judges found that the 

conclusions expressed by Dr. Smith are persuasive. In particular, the Office of Judges noted that 

Dr. Smith opined that the diagnoses of chondromalacia and degenerative changes are unrelated 

to the August 5, 2013, injury. The Office of Judges further noted that Dr. Smith opined that the 

request for authorization of a Synvisc injection is unrelated to the August 5, 2013, injury. 

Finally, the Office of Judges noted that Dr. Smith opined that Ms. Lemaster can return to fullduty employment. Based upon Dr. Smith’s conclusions, the Office of Judges determined that the 

diagnoses of chondromalacia and degenerative arthritis of the left knee are unrelated to the 

August 5, 2013, injury. Further, the Office of Judges determined that the requests for 

authorization of one Synvisc injection and additional temporary total disability benefits arise 

from the treatment of the non-compensable diagnoses of degenerative arthritis of the left knee 

and chondromalacia, and are therefore also unrelated to the August 5, 2013, injury. We agree 

with the reasoning and conclusions of the Office of Judges as affirmed by 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: June 22, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Margaret L. Workman 

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