Connie Ferguson v. W. Va. Ofc. of Insurance Commissioner/JII Sales Promotion Association

STATE OF WEST VIRGINIA

FILED
SUPREME COURT OF APPEALS December 2, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
CONNIE FERGUSON, OF WEST VIRGINIA

Claimant Below, Petitioner

vs.) No. 13-0846 (BOR Appeal No. 2048157)
(Claim No. 880012206)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

JII/SALES PROMOTION ASSOCIATION, INC.,
Employer Below, Respondent

MEMORANDUM DECISION
Petitioner Connie Ferguson, by J. Robert Weaver, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. West Virginia Office of the
Insurance Commissioner, by Brandolyn N. Felton-Ernest, its attorney, filed a timely response.

This appeal arises from the Board of Review’s Final Order dated July 24, 2013, in which
the Board affirmed a January 31, 2013, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s September 21, 2011,
decision to not authorize bilateral knee replacements. 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. Ferguson, an employee of JII/Sales Promotion and Associates, Inc., injured her knee
in 1987. Ms. Ferguson filed for workers’ compensation benefits based upon her 1987 injury, and
her claim was held compensable for an old disruption of the left knee lateral collateral ligament.
Thereafter, Ms. Ferguson underwent a partial meniscectomy, which resulted in slow
improvement of her symptoms. On March 12, 2012, Ms. Ferguson reported to Prakash Puranik,
M.D., who opined that Ms. Ferguson would be a good candidate for bilateral knee replacements
due to her osteoarthritis. Dr. Puranik requested bilateral knee replacements be authorized under
Ms. Ferguson’s claim. Dr. Puranik’s report was never introduced into the record. As a result, it is
uncertain whether Dr. Puranik opined that the 1987 injury caused Ms. Ferguson’s osteoarthritis.
Ms. Ferguson reported to David C. Shamblin, M.D., who also opined that she was a good
candidate for bilateral knee replacements. The claims administrator denied Ms. Ferguson’s claim
because osteoarthritis was never ruled a compensable condition under the claim. Ms. Ferguson
protested.

The Office of Judges concluded that bilateral knee replacements were not medically
necessary or reasonable in relation to the 1987 left sided old disruption of the lateral collateral
ligament. The Office of Judges noted that there is no indication in Dr. Shamblin’s report of a
causal connection between Ms. Ferguson’s symptoms and the compensable condition. Dr.
Shamblin notes that Ms. Ferguson was diagnosed with rheumatoid arthritis and her knee joint
has deteriorated since that time. However, the Office of Judges found that neither rheumatoid nor
osteoarthritis has been ruled a compensable condition of the claim. Accordingly, the Office of
Judges denied authorization for bilateral knee replacements as it related to Ms. Ferguson’s 1987
compensable diagnosis of left sided disruption of the lateral collateral ligament. The Board of
Review adopted the findings of the Office of Judges and affirmed its Order.

We agree with the findings of the Office of Judges and the conclusions of the Board of
Review. Ms. Ferguson has failed to show how bilateral knee replacements are medically related
or reasonably necessary in relation to the 1987 left sided disruption of the lateral collateral
ligament. The only report in the record that concludes Ms. Ferguson would need bilateral knee
replacements is the report of Dr. Shamblin. Dr. Shamblin does not indicate with clarity what
precipitated Ms. Ferguson’s need for bilateral knee replacements. However, he did note that the
left knee joint deteriorated in the time period after Ms. Ferguson was diagnosed with rheumatoid
arthritis. Since rheumatoid arthritis was never found to be a compensable condition of this claim,
any treatment related to it was 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.

Affirmed.

ISSUED: December 2, 2014
CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II