STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

March 4, 2015 

RORY L. PERRY II, CLERK 

KENNETH L. GLOVER, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 14-0519 (BOR Appeal No. 2049024) 

(Claim No. 2012000357) 

EASTERN ASSOCIATED COAL, LLC, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Kenneth L. Glover, by Robert L. Stultz, his attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Eastern Associated Coal, LLC, by 

Henry C. Bowen, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated May 2, 2014, in which 

the Board affirmed a December 2, 2013, Order of the Workers’ Compensation Office of Judges. 

In its Order, the Office of Judges affirmed the claims administrator’s January 18, 2013, decision 

which denied a right knee arthroscopy, partial meniscectomy, and chondroplasty. 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. 

Mr. Glover, a coal miner, was injured in the course of his employment on May 10, 2011, 

when his foot slid and his right knee twisted. The claim was held compensable for cervical strain 

and knee sprain. Mr. Glover was treated shortly after the injury by Chris Vasilakis, M.D., for 

continued knee pain and soreness. Dr. Vasilakis diagnosed early osteoarthritis. Mr. Glover 

continued to have right knee pain and x-rays taken in November of 2012 showed medial joint 

space narrowing and small patella femoral osteophytes. Dr. Vasilakis diagnosed moderate 

osteoarthritis at that time. Shortly thereafter, a right knee MRI revealed a tear of the posterior 

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horn of the medial meniscus, a possible flap tear of the anterior horn and body of the medial 

meniscus, advanced degenerative changes in the medial compartment, a chronic partial tear of 

the anterior cruciate ligament, a large joint effusion, and moderate synovitis. Dr. Vasilakis 

recommended a right knee arthroscopy, partial meniscectomy, and chondroplasty to treat the torn 

meniscus and degenerative arthritis of the medial compartment. 

P. Kent Thrush, M.D., performed an independent medical evaluation on July 6, 2012. Dr. 

Thrush found that Mr. Glover had evidence of osteoarthritis in his right knee. He noted that Dr. 

Vasilakis found significant joint space narrowing on June 13, 2011, which does not occur within 

a month. Dr. Thrush stated that Mr. Glover may have suffered a medial sprain on top of his preexisting degenerative arthritis. He noted that Mr. Glover did not miss work for the compensable 

injury and continues to work full-time. He opined that the requested treatment was for arthritis, 

not the compensable knee sprain. 

The claims administrator denied the request for a right knee arthroscopy, partial 

meniscectomy, and chondroplasty on January 18, 2013. The Office of Judges affirmed the 

decision in its December 2, 2013, Order. It found that Mr. Glover’s assertion that his right knee 

surgery should be held compensable was hampered by a lack of evidence from Dr. Vasilakis, or 

any other physician, indicating that the May 10, 2011, injury aggravated a pre-existing medical 

condition or otherwise caused the problems for which he ultimately had surgery. It was 

determined that Dr. Vasilakis’s medical records consistently refer to Mr. Glover’s condition as 

arthritis or osteoarthritis without mention of the compensable injury. Further, the Office of 

Judges found that the only evidence submitted regarding the compensable injury shows that the 

claim was held compensable for a knee sprain, not tears of the meniscus. The Board of Review 

adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its 

Order on May 2, 2014. 

On appeal, Mr. Glover argues that Dr. Vasilakis’s records clearly show that the requested 

surgery was reasonable to treat the compensable injury and he tried other forms of treatment, 

including injections, with no results. He further argues that Dr. Thrush’s report is unreliable 

because he stated that an MRI would show degenerative changes even though his opinion was 

not based on an actual MRI. Eastern Associated Coal, LLC, asserts that there is substantial 

evidence supporting the Board of Review’s decision and no reversible error was committed. 

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

Board of Review. There is no evidence in the record causally connecting Mr. Glover’s 

compensable knee sprain to his meniscus tears, the condition for which he ultimately underwent 

surgery. The claim has not been held compensable for meniscus tears, and authorization of the 

surgery to treat them was therefore 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. 

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Affirmed. 

ISSUED: March 4, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Menis E. Ketchum 

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