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 STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

 

William Harding, 

Claimant Below, Petitioner

vs.) No. 21-0503 (BOR Appeal No. 2056250) 

 (Claim No. 2019018874) 

 

Murray American Energy, Inc., 

Employer Below, Respondent

MEMORANDUM DECISION 

Petitioner William Harding, by Counsel J. Thomas Greene Jr., appeals the decision of the 

West Virginia Workers’ Compensation Board of Review (“Board of Review”). Murray American 

Energy, Inc., by Counsel Aimee M. Stern, filed a timely response.

The issue on appeal is temporary total disability benefits. The claims administrator denied 

a request to reopen the claim for temporary total disability benefits on June 11, 2020. The Workers’ 

Compensation Office of Judges (“Office of Judges”) affirmed the decision in its January 8, 2021, 

Order. The Order was affirmed by the Board of Review on May 21, 2021. 

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. 

The standard of review applicable to this Court’s consideration of workers’ compensation 

appeals has been set out under W. Va. Code § 23-5-15, in relevant part, as follows: 

(c) In reviewing a decision of the Board of Review, the Supreme Court of 

Appeals shall consider the record provided by the board and give deference to the 

board’s findings, reasoning, and conclusions . . . . 

(d) If the decision of the board represents an affirmation of a prior ruling by 

both the commission and the Office of Judges that was entered on the same issue 

FILED

May 2, 2023

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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in the same claim, the decision of the board may be reversed or modified by the 

Supreme Court of Appeals only if the decision is in clear violation of constitutional 

or statutory provision, is clearly the result of erroneous conclusions of law, or is 

based upon the board’s material misstatement or mischaracterization of particular 

components of the evidentiary record. The court may not conduct a de novo 

reweighing of the evidentiary record . . . . 

See Hammons v. W. Va. Off. of Ins. Comm’r, 235 W. Va. 577, 582-83, 775 S.E.2d 458, 463-64 

(2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission, 

230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions 

of law arising in the context of decisions issued by the Board. See also Davies v. W. Va. Off. of 

Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011). 

Mr. Harding, a coal miner, injured his right knee while lifting a main water line on February 

23, 2019. The claim was held compensable for right knee sprain on March 8, 2019. Right knee 

pain and medial meniscus tear were denied as compensable diagnoses. Mr. Harding was granted 

temporary total disability benefits from March 6, 2019, through March 15, 2019. 

A right knee MRI was performed on March 12, 2019, and showed a medial meniscus tear 

and small joint effusion. Mr. Harding sought treatment from Jeffrey Abbott, M.D., on March 28, 

2019, for right knee pain with walking or standing for long periods of time, a popping and grinding 

sensation, and difficulty sleeping due to pain. After examination, Dr. Abbott diagnosed right knee 

osteoarthritis and medial meniscus tear. He noted that Mr. Harding continued to suffer from 

significant activity-limiting pain and recommended a right knee arthroscopy, which he performed 

on April 17, 2019. The postoperative diagnoses were right knee medial meniscus tear, lateral 

meniscus tear, medial plica, and grade III degenerative joint disease. Mr. Harding returned on May 

2, 2019, and reported that he was healing well. Dr Abbott stated that he could return to work on 

June 3, 2019, with no restrictions. On June 17, 2019, the claims administrator suspended temporary 

total disability benefits because Mr. Harding was released to return to work by Dr. Abbott. 

In a June 21, 2019, treatment note, Dr. Milton stated that Mr. Harding had returned to work 

about a week prior. He reported swelling and difficulty with weight bearing. Dr. Milton diagnosed 

post arthroscopic arthralgias and diffusion and opined that Mr. Harding may have returned to work 

too early. A right knee x-ray showed mild degenerative changes, small joint effusion, and a small 

osteophyte on the patella. Mr. Harding was excused from work. 

Mr. Harding sought treatment from Wheeling Hospital Emergency Department on July 17, 

2019, for right knee pain. He stated that he noticed swelling and significant pain after a recent 

twelve hour work shift. Mr. Harding called off of work on July 16, 2019, and July 17, 2019, to 

elevate his leg, which somewhat improved the swelling. X-rays showed no changes since the June 

21, 2019, x-ray. The diagnoses were right knee pain and effusion, and Mr. Harding was to remain 

off of work until a follow-up appointment on July 22, 2019. An August 4, 2019, right knee MRI 

showed a questionable small medial meniscus tear and degenerative changes, primarily in the 

medial compartment, with chondromalacia and mild subchondral edema. In an August 5, 2019,
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visit, Dr. Milton found minimal edema, joint space tenderness, and crepitation. He recommended 

reevaluation by an orthopedist and opined that Mr. Harding was unable to work. 

David Soulsby, M.D., performed an Independent Medical Evaluation on August 7, 2019,

in which he diagnosed torn right medial meniscus and osteoarthritis. He opined that Mr. Harding

had reached maximum medical improvement for the torn meniscus but still had symptoms due to 

osteoarthritis. Dr. Soulsby stated that Mr. Harding’s osteoarthritis was severe and would eventually 

cause the need for a total knee arthroplasty. That surgery would not be related to the compensable 

injury because the compensable injury did not cause or aggravate the preexisting osteoarthritis. He 

recommended a corticosteroid injection but stated that no treatment would fix or slow the 

progression of the preexisting osteoarthritis. Dr. Soulsby assessed 2% impairment due to the 

compensable injury. The claim was closed for temporary total disability benefits on August 12, 

2019.

In an August 14, 2019, treatment note, Dr. Milton stated that Mr. Harding had less swelling. 

He diagnosed post-arthroscopic knee effusion, evidence of cartilage defect, and a questionable 

mild medial meniscus tear. Mr. Harding was to see Dr. Abbott and remain off of work. Mr. Harding

returned on August 28, 2019, and his condition remained the same. On August 30, 2019, Dr. 

Abbott diagnosed right knee osteoarthritis and administered an injection. Mr. Harding returned to 

Dr. Milton on October 4, 2019, who stated that Mr. Harding returned to work, experienced 

increased symptoms, and stopped working. Dr. Milton diagnosed post-operative arthralgias and 

opined that Mr. Harding was unable to work. 

Dr. Milton completed an Attending Physicians’ Report on October 9, 2019, in which he

stated that Mr. Harding was temporarily and totally disabled from March 6, 2019, to November 4,

2019. He opined that Mr. Harding had not reached maximum medical improvement and was not 

ready for a permanent partial disability rating. In an October 18, 2019, treatment note, Dr. Abbott 

stated that Mr. Harding saw no relief from a right knee injection and still reported pain, swelling, 

popping, clicking, and grinding. Dr. Abbott diagnosed osteoarthritis and recommended 

viscosupplementation. Mr. Harding underwent a right knee x-ray on October 18, 2019, which 

showed osteoarthritis in the medial compartment with a moderate joint effusion. 

On October 25, 2019, Dr. Milton noted that Mr. Harding had right knee osteoarthritis and 

that viscosupplementation was recommended. Dr. Milton informed Mr. Harding that having

osteoarthritis and viscosupplementation noted in his records could interfere with his work-related 

injury issues. Mr. Harding stated that he was still unable to work. 

Dr. Milton testified in a November 13, 2019, deposition that he has treated Mr. Harding on 

numerous occasions for the compensable injury. Mr. Harding attempted to return to work on June 

14, 2019, but was unable to perform his duties. He again tried to return to work on July 1, 2019, 

but was taken off of work after seeking emergency treatment on July 17, 2019. He had not returned 

to work since that day. Dr. Milton was asked if referral to an orthopedist was necessary to treat the 

compensable injury. He stated that the issue was complicated because Mr. Harding’s recurrence 

of symptoms post-surgery was multifactorial in nature. He testified that a total knee replacement 

was more likely necessitated by Mr. Harding’s pre-existing conditions. He further testified that 
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meniscal tears are multifactorial in nature and can be seen in osteoarthritic changes. Dr. Milton 

stated that he removed Mr. Harding from work on June 21, 2019, because he was symptomatic 

and did not feel like he could work. He testified that it was possible that Mr. Harding’s symptoms 

were the result of degenerative joint disease. 

Mr. Harding was seen by Dr. Milton on November 20, 2019, and was diagnosed with 

persistent postoperative arthralgia. Mr. Harding remained symptomatic and was unable to work. 

Mr. Harding was also seen that day by Dr. Abbott. He reported continued knee pain with no 

change. Dr. Abbott diagnosed osteoarthritis. On November 22, 2019, Dr. Milton completed an

Attending Physician’s Report stating that Mr. Harding was disabled from March 6, 2019, through

December 6, 2019. Mr. Harding returned to Dr. Abbott on November 27, 2020, and reported that 

his symptoms were unchanged following his viscosupplementation injection. He was given 

another injection and returned for follow up on December 5, 2019. At that appointment, the plan 

was to resume normal activity. 

Mr. Harding was treated by Dr. Milton on December 11, 2019, and he reported a little bit 

of improvement. The diagnoses were right knee medial sprain, medial meniscus tear, and postoperative arthralgias. Dr. Milton noted that Mr. Harding believed he was unable to work. He was 

to return in two to three weeks. In a December 13, 2019, Attending Physician’s Report, Dr. Milton 

stated that Mr. Harding was disabled from March 6, 2019, to no specified end date. It was noted 

that Mr. Harding’s next appointment was on January 6, 2020. 

On January 6, 2020, Mr. Harding returned to Dr. Milton. He had not returned to work and 

was receiving sickness and accident benefits. Dr. Milton noted symptoms of patellofemoral 

dysfunction and persistent complaints of post-operative arthralgias. Mr. Harding was to continue 

home exercises and follow up in six weeks. On January 22, 2020, Mr. Harding returned to Dr. 

Milton and stated that he was pushing a cart the week before when he felt a popping sensation and 

instability in his knee. Dr. Milton diagnosed post-operative arthralgias. In a January 24, 2020, 

treatment note, Dr. Abbott noted that injections provided no pain relief for Mr. Harding. He 

diagnosed osteoarthritis. Because conservative measures had failed, Dr. Abbott recommended a 

total right knee replacement. 

In a February 14, 2020, Order, the Office of Judges reversed the claims administrator’s 

decision denying temporary total disability benefits and a decision denying a request for a 

reevaluation by Dr. Abbott. The Office of Judges granted temporary total disability benefits from 

June 21, 2019, through October 18, 2019, and authorized the reevaluation. 

Mr. Harding was seen by Dr. Milton on February 28, 2020. It was noted that he was 

currently appealing a denial of a total right knee replacement but was going to undergo the surgery 

on his own insurance. He was to remain off of work and return in five weeks. Dr. Abbott performed 

a total right knee replacement for the diagnosis of degenerative joint disease. 

Mr. Harding completed a claim reopening application on March 6, 2020, requesting 

temporary total disability benefits from October 19, 2019, to May 11, 2020. He asserted that he 

had not sustained any other injuries. The employer’s portion was completed by Amy Bailey, 
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human resources coordinator, and indicated Mr. Harding began missing work on July 15, 2019. 

On March 17, 2020, Dr. Abbott noted that Mr. Harding’s right knee was healing well post-surgery. 

He was to continue physical therapy and return in four weeks. Dr. Milton completed a claim 

reopening application on March 26, 2020, indicating Mr. Harding was temporarily and totally 

disabled from March 2, 2020, to June 14, 2020, following his right knee replacement. Mr. Harding

followed up on May 18, 2020, and Dr. Milton recommended he continue physical therapy and 

follow up in one month. 

In a May 28, 2020, treatment note, Dr. Abbott stated that Mr. Harding was doing well and 

planned to return to work on June 22, 2020. Dr. Milton completed an Attending Physician’s Report 

in which he stated that Mr. Harding was disabled from March 6, 2019, through June 12, 2020. On 

June 8, 2020, Dr. Milton noted that Mr. Harding had finished formal physical therapy. He was to 

follow up with Dr. Abbott on June 30, 2020, and would likely be released. Dr. Milton completed 

an Attending Physician’s Report on June 9, 2020, stating that Mr. Harding was disabled from 

March 6, 2019, to July 3, 2020. 

In a June 11, 2020, decision, the claims administrator denied Mr. Harding’s March 26, 

2020, request to reopen his claim. It stated that the total knee replacement was neither requested 

nor authorized in the claim and the diagnosis given for the surgery was not a compensable 

condition. On July 1, 2020, Dr. Milton stated that Mr. Harding continued to heal, however, he 

remained unable to work. Additionally, Dr. Milton requested the addition of medial meniscus tear 

to the claim. He completed an Attending Physician’s Report the following day and stated that Mr. 

Harding was disabled from March 6, 2019, to August 3, 2020. 

On August 5, 2020, Dr. Milton noted that the addition of arthrosis to the claim was denied. 

Dr. Milton stated after examination that Mr. Harding continued to show improvement. Mr. Harding

stated that he was unlikely to return to coal mining. Dr. Milton recommended he continue home 

exercises and follow up in two months. On August 14, 2020, the claims administrator added medial 

meniscus tear to the claim. 

David Soulsby, M.D., performed an Independent Medical Evaluation on August 18, 2020,

in which he noted that he previously examined Mr. Harding a year prior. At that time, he diagnosed 

osteoarthritis, a preexisting condition, and a torn meniscus. After reviewing the records, Dr. 

Soulsby opined that the evidence does not support an aggravation or progression of the 

compensable injury. He further opined that Mr. Harding’s right knee symptoms are consistent with 

osteoarthritis, a preexisting condition. Radiographic and diagnostic evidence show only the 

progression of osteoarthritis. Dr. Soulsby asserted that the total knee replacement was not 

necessary medical treatment for Mr. Harding’s compensable conditions. Dr. Soulsby explained 

that osteoarthritis did not develop over the course of a few months. He also stated that, though the 

meniscus tear happened at work, Mr. Harding’s torn meniscus was caused by arthritis. He asserted 

that osteoarthritis presents in many ways. Some cases slowly progress over time and others remain 

asymptomatic for a long period of time and then rapidly progress. 

The Office of Judges affirmed the claims administrator’s denial of a reopening of the claim 

in its January 8, 2021, Order. It found that the claim was held compensable for right knee sprain 
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and medial meniscus tear, and osteoarthritis has never been added to the claim. The Office of 

Judges found that the requested period of temporary total disability was not due to Mr. Harding’s 

compensable medial meniscus tear but was the result of his osteoarthritis. Further a total knee 

replacement is not treatment that would be necessary for a torn meniscus. The Office of Judges 

found Dr. Soulsby’s report to be the most probative of record. He concluded that osteoarthritis and 

the subsequent treatment for the condition are not compensable or authorized in the claim. The 

Office of Judges concluded that Mr. Harding was not entitled to temporary total disability benefits 

for the period of time in which he underwent a total right knee replacement due to osteoarthritis, a 

noncompensable condition. The Board of Review affirmed the Office of Judges’ Order on May 

21, 2021.

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

affirmed by the Board of Review. Pursuant to West Virginia Code § 23-5-3, in order to reopen a 

claim for temporary total disability benefits, the claimant must make an application in writing 

showing a progression or aggravation of the compensable condition. Mr. Harding has failed to 

show a progression or aggravation of his compensable right knee sprain or medial meniscus tear. 

A preponderance of the evidence indicates that Mr. Harding’s period of temporary total disability 

was not due to a compensable condition but was instead the result of preexisting, noncompensable 

osteoarthritis and the subsequent treatment for that condition.

 Affirmed.

ISSUED: May 2, 2023

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker 

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton 

Justice C. Haley Bunn