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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

RIGHT OF WAY CLEARING & MAINTENANCE, INC.,

Employer Below, Petitioner

vs.) No. 19-0013 (BOR Appeal No. 2052990)

(Claim No. 2013025731)

 

ROBERT TAYLOR, 

Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Right of Way Clearing & Maintenance, Inc., by Counsel Toni J. Williams, 

appeals the decision of the West Virginia Workers’ Compensation Board of Review (“Board of 

Review”). Robert Taylor, by Counsel Justin M. Raber, filed a timely response.

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

an arthroscopic chondroplasty of the right knee on July 6, 2017. On July 28, 2017, the claims 

administrator denied authorization of a venous Doppler of the right lower extremity and a return 

appointment with Kelli Cawley, M.D. The Office of Judges reversed the decisions in its May 18, 

2018, Order and granted the requested treatment. The Order was affirmed by the Board of Review 

on December 6, 2018.

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. 

Mr. Taylor, a carpenter, was injured in the course of his employment on January 29, 2013, 

when he twisted his right knee. The claim was held compensable for right knee sprain, right knee 

cruciate ligament sprain, and sprain of the lateral collateral ligament of the right knee. A November 

23, 2015, treatment note from Marietta Memorial Hospital indicates Mr. Taylor had a history of 

two right anterior cruciate ligament repairs as well as a right knee cyst excision. He reported that 

after the cyst removal, he developed right calf and thigh pain as well as swelling. It was noted that 

he was previously treated for similar symptoms. A CT scan showed an extensive bilateral 

FILED

November 15, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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pulmonary embolus with moderate ventricular strain. It was noted that Mr. Taylor’s brother has a 

similar history of deep vein thrombosis. 

On December 23, 2015, Mr. Taylor sought treatment from Marcia McCullough, N.P. She 

indicated Mr. Taylor reported that he underwent right knee surgery in October of 2015 and 

subsequently developed extensive bilateral pulmonary embolism of the right femoral vein. Umar 

Osman, M.D., a pulmonologist, evaluated Mr. Taylor on January 6, 2016, and found that he still 

had shortness of breath, headaches, and right leg swelling. Dr. Osman stated that Mr. Taylor had 

a submassive pulmonary embolism that developed due to surgery. He stated that it was causing 

partial right heart strain. Dr. Osman opined that Mr. Taylor’s condition may become chronic and 

recommended physical therapy. On January 5, 2017, Mr. Taylor was treated by George Bal, M.D.,

for right knee pain and instability. Dr. Bal noted that Mr. Taylor had already been released to return 

to work. Dr. Bal found moderately reduced range of motion in the right knee on examination. Xrays were normal. Dr. Bal recommended an MRI.

Mr. Taylor was treated several times at Marietta Memorial Hospital emergency department 

for his right leg. On January 23, 2017, he presented with right knee pain and swelling. A venous 

Doppler/ultrasound showed a possible thrombus of the right femoral and popliteal vein. He was 

given anticoagulants. On February 10, 2017, Mr. Taylor was seen for a swollen right leg. A venous 

Doppler showed a nonocclusive/partial thrombosis of the right femoral vein. Mr. Taylor returned 

on March 8, 2017, for right leg pain and swelling. An ultrasound showed subacute or chronic 

nonocclusive deep vein thrombosis. It was also noted that he had a cyst on the right knee. On 

March 31, 2017, Mr. Taylor was treated for right leg pain and swelling. He was again diagnosed 

with chronic deep vein thrombosis. 

Mr. Taylor was treated by Dr. Cawley on April 4, 2017, who diagnosed recurrent right leg 

deep vein thrombosis. She recommended he see a vascular specialist. An April 26, 2017, treatment 

note by Gregory Krivchenia, M.D., indicates Mr. Taylor had right leg swelling, pain and reduced 

range of motion. Dr. Krivchenia stated that he may have underlying arthritis of the knee secondary 

to his work injury. Dr. Krivchenia diagnosed right knee meniscus injury and right knee sprain. He 

recommended a menisectomy and chondroplasty and stated that he believed arthritis was causing 

a lot of Mr. Taylor’s problems. On May 1, 2017, Mr. Taylor sought treatment from Luke Marone, 

M.D., who diagnosed post-thrombotic syndrome. He recommended Mr. Taylor continue wearing 

compression socks and prescribed a venous Doppler. Mr. Taylor returned to Marietta Memorial 

Hospital emergency department on May 14, 2017, for right leg pain and swelling. He had 

discontinued his anticoagulation medication the month prior. An ultrasound of the right leg was 

negative. 

Mr. Taylor began treating with Jeffrey Kann, M.D., on June 22, 2017. He reported that he 

was originally injured on January 29, 2013, and was subsequently diagnosed with an anterior 

cruciate ligament tear. He underwent surgery on March 28, 2013, and was released to return to 

work on October 28, 2013. In April of 2014, Mr. Taylor began noticing increased pain and swelling 

in the right knee. An MRI showed a large cyst in the right knee. He underwent anterior cruciate 

ligament surgery on September 23, 2014. A diagnostic arthroscopy was performed on March 17, 

2015, and loose bodies in the joint were removed. Mr. Taylor’s right knee remained symptomatic 
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so an MRI was performed which showed mild osteoarthritis and a cyst. Surgery was performed on 

November 6, 2014, to remove the cyst. Postoperatively, Mr. Taylor developed recurrent deep vein 

thrombosis. Dr. Kann diagnosed right knee osteoarthritis and post phlebitis syndrome of the right 

leg. He opined that the diagnoses were causally related to the compensable injury as they resulted 

from the subsequent surgeries. Dr. Kann opined that Mr. Taylor does not need a total knee 

replacement or any further surgeries. He found that he could return to work with limitations. 

In a July 14, 2017, letter, Dr. Krivchenia opined that Mr. Taylor’s MRI indicates he will 

require arthroscopic evaluation and treatment and that the treatment was directly related to his 

compensable injury. In a July 21, 2017, supplemental report, Dr. Kann noted that Mr. Taylor’s

brother has a history of deep vein thrombosis. Dr. Kann stated that it was his opinion that Mr. 

Taylor developed a deep vein thrombosis and pulmonary embolism as a result of his compensable 

injury. He stated that the prior thrombosis and family history places Mr. Taylor at a higher risk for 

developing the subsequent and recurrent deep vein thrombosis. 

Mr. Taylor returned to Ms. McCullough on August 14, 2017. The treatment note indicates 

Mr. Taylor underwent an ultrasound on June 15, 2017, which showed extensive chronic deep vein 

thrombosis. Ultrasounds performed on June 28, 2017; July 14, 2017; and July 26, 2017, were 

negative. Ms. McCullough noted that Mr. Taylor reported that his knee popped on August 14, 

2017, which was possibly due to a cyst. Ms. McCullough diagnosed recurrent right lower extremity 

deep vein thrombosis and venous stasis with open ulcers. Mr. Taylor testified in a hearing before 

the Office of Judges on March 8, 2018, that he had no symptoms of pulmonary embolism prior to 

the compensable injury. He stated that he had not worked since 2014. He had right lower extremity 

pain and swelling as well as persistent right knee pain. 

The claims administrator denied authorization of an arthroscopic chondroplasty of the right 

knee on July 6, 2017. On July 28, 2017, it denied authorization of a venous Doppler of the right 

lower extremity and a return appointment with Dr. Cawley. The Office of Judges reversed the 

decisions in its May 18, 2018, Order and authorized the requested medical treatment. 

The Office of Judges found that the record indicates Mr. Taylor’s right knee surgeries, 

before he developed recurrent deep vein thromboses, were authorized by the claims administrator. 

Though no order of authorization was submitted into the record, the medical records and arguments 

by the parties indicate that the initial surgeries were authorized. The Office of Judges next 

determined that though Mr. Taylor has a family history of deep vein thrombosis, the medical 

evidence indicates he developed the condition as a result of surgery. The November 23, 2015,

emergency department note from Marietta Memorial Hospital states that his pulmonary embolism 

and deep vein thrombosis developed as a result of surgery. Dr. Osman stated on January 6, 2016,

that Mr. Taylor had a pulmonary embolism that was provoked by surgery. Dr. Marone stated on 

May 1, 2017, that he underwent a cyst removal that was complicated by a deep vein thrombosis. 

Lastly, the Office of Judges noted that Dr. Kann opined on July 21, 2017, that though Mr. Taylor’s

family history increased his risk for deep vein thrombosis, the compensable injury and subsequent 

surgeries caused the initial thrombosis. The subsequent thrombosis was the result of the prior 

thrombosis as well as his family history. The Office of Judges therefore held that Mr. Taylor

developed deep vein thrombosis as a result of the compensable injury. The requested treatment for 
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the condition, a venous Doppler and a return appointment with Dr. Cawley, was therefore

authorized as necessary medical treatment. 

Regarding the request for an arthroscopic chondroplasty of the right knee, the Office of 

Judges determined that Drs. Krivchenia and Kann believed Mr. Taylor’s right knee condition is 

related to the compensable injury. Dr. Krivchenia stated that he required the surgery due to 

underlying arthritis secondary to the compensable injury. Dr. Kann stated that Mr. Taylor’s right 

knee symptoms were the result of the compensable injury and subsequent surgeries. The Office of 

Judges noted that the physicians disagreed on whether he requires right knee surgery. The Office 

of Judges determined that there was equal evidence on either side of the issue regarding the need 

for arthroscopic knee surgery. When the evidence is of equal weight, the issue is resolved in favor 

of the claimant. Therefore, the right knee surgery was found to be medically related and reasonably 

required treatment. The Board of Review adopted the findings of fact and conclusions of law of 

the Office of Judges and affirmed its Order on December 6, 2018. 

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 § 23-4-1(a) (2008), workers’ 

compensation benefits shall be provided to those employees who have received personal injuries 

in the course of and as a result of their covered employment. West Virginia Code § 23-4-3(a)(1) 

(2005) provides that the claims administrator must provide medically related and reasonably 

required sums for healthcare services, rehabilitation services, durable medical and other goods, 

and other supplies. Mr. Taylor has proven by a preponderance of the evidence that the requested 

medical treatment is reasonably required and medically necessary treatment for his compensable 

injury. 

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 so clearly wrong based upon the evidentiary record that even when all 

inferences are resolved in favor of the Board of Review’s findings, reasoning and conclusions, 

there is insufficient support to sustain the decision. Therefore, the decision of the Board of Review 

is affirmed. 

 Affirmed.

ISSUED: November 15, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison