STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

ROBERT B. DAY, March 3, 2017 

RORY L. PERRY II, CLERK Claimant Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 16-0211 (BOR Appeal No. 2050766) 

(Claim No. 2002009229) 

APPALACHIAN POWER COMPANY, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Robert B. Day, pro-se, appeals the decision of the West Virginia Workers’ 

Compensation Board of Review. Appalachian Power Company, by Henry C. Bowen, its 

attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated February 1, 2016, in 

which the Board affirmed the July 29, 2015, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 17, 

2014, decision denying the addition of avascular necrosis and degenerative arthritis as 

compensable conditions and denying authorization for a consultation at the University of 

Virginia Department of Orthopedics. 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. Day, a meter reader, was injured on June 26, 2001, when he stepped into a small hole 

and twisted his left hip. X-rays of the left hip and pelvis taken that day revealed bilateral hip 

osteoarthritis, left greater than right, as well as slight left hip joint space narrowing. Mr. Day was 

diagnosed with a myofascial strain of the left groin. The claim was held compensable for 

displacement of lumbar intervertebral disc without myelopathy, left hip sprain, and other 

sprain/strain. 

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After continuing to experience pain in his left hip, Mr. Day started treating with Syed 

Zahir, M.D., on September 20, 2001. Dr. Zahir diagnosed a sprain of the left hip and trochanteric 

bursitis. Dr. Zahir continued to treat Mr. Day and changed the diagnosis to sprain of the right hip 

and avascular necrosis on July 9, 2002. Mr. Day continued to seek treatment on a regular basis. 

On September 17, 2014, Dr. Zahir wrote a letter regarding the compensable diagnoses and 

treatment. He opined that Mr. Day developed avascular necrosis one year after the trauma to the 

hip. In his opinion, the left hip injury Mr. Day sustained on June 26, 2001, was a major 

contributing factor for the avascular necrosis and arthritis. 

Thomas Brown, M.D., at the University of Virginia Orthopedic Surgery Clinic, also 

treated Mr. Day. On June 27, 2006, Dr. Brown noted x-rays of the left hip showed a progression 

of the arthritis since the June 26, 2001, x-rays. In Dr. Brown’s opinion, Mr. Day was going to 

need a hip replacement. In an August 11, 2014, letter to the claims administrator, Dr. Brown 

opined the work injury exacerbated the pre-existing hip condition and the 2001 injury was a 

contributing factor in the development of the arthritis in Mr. Day’s left hip. 

D. Kelly Agnew, M.D., performed a medical records review on July 2, 2012. In his 

opinion, the current symptoms were not related to the 2001 injury. Dr. Agnew found no 

documentation of structural damage to the left hip that would have aggravated, accelerated, or 

altered the natural aging process. In his opinion, the sprain and strain injuries would have 

resolved in as little as a few weeks or at most a few months after the 2001 injury. Christopher 

Chenault, M.D., performed a records review on September 17, 2012. Dr. Chenault stated that 

there was no evidence that the type of injury Mr. Day had on June 26, 2001, would result in 

degenerative arthritis of the hip. He found no medical relationship between the 2001 injury and 

the degenerative arthritis of the hip. 

The claims administrator denied the request to add avascular necrosis and degenerative 

arthritis of the left hip as compensable conditions on December 17, 2014. The claims 

administrator also denied authorization for a consultation with the Department of Orthopedics at 

the University of Virginia. The Office of Judges affirmed the claims administrator’s decision on 

July 29, 2015. The Office of Judges noted that Dr. Zahir reasoned that Mr. Day’s injury was the 

major contributing factor for the avascular necrosis and arthritis. However, the Office of Judges 

did not find Dr. Zahir’s opinion to be persuasive in light of the findings of Dr. Agnew and Dr. 

Chenault. The Office of Judges found that Dr. Brown did not state what aspect of the injury may 

have exacerbated the pre-existing arthritis. Dr. Agnew did not find any structural damage that 

would cause the arthritis. While Dr. Brown posed possibilities of how the problem could be 

work-related, he was not able to say for certain what would have caused the problem. The Board 

of Review adopted the findings of fact and conclusion of law of the Office of Judges and 

affirmed its Order on February 1, 2016. 

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

the Board of Review. Avascular necrosis is a degenerative process. The medical evidence shows 

that a soft tissue injury to the left hip would not have caused the avascular necrosis. The 

preponderance of medical evidence supports the finding that Mr. Day’s avascular necrosis did 

not develop as a result of the 2001 injury. 

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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: March 3, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin J. Davis 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

DISSENTING: 

Justice Margaret L. Workman 

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