FILED
November 5, 2021
released at 3:00 p.m.
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
JOE D. BARGANSKI,
Claimant Below, Petitioner
vs.) No. 20-0216 (BOR Appeal No. 2054671)
(Claim No. 2018005926)
CENTRE FOUNDRY AND MACHINE COMPANY,
Employer Below, Respondent
MEMORANDUM DECISION
The petitioner, Joe D. Barganski, by counsel J. Robert Weaver, appeals the February
20, 2020, decision of the Workers’ Compensation Board of Review (“Board of Review”).
Centre Foundry and Machine Company, by counsel Alyssa A. Sloan, filed a timely
response. 1
The issues on appeal are whether an additional diagnosis is compensable and
whether medical treatment for that diagnosis should be authorized. Specifically, by orders
entered December 18, 2017, and February 8, 2018, the claims administrator denied septic
knee as an additional compensable diagnosis and denied diagnostic testing, hospitalization,
and surgical intervention for treatment of that diagnosis. The Worker’s Compensation
Office of Judges (“Office of Judges”) affirmed those decisions by order entered on
September 26, 2019. 2 The Board of Review upheld that decision by order entered on
February 20, 2020.
1
By letter dated May 17, 2021, Tracey B. Eberling appeared as counsel for Centre Foundry
and Machine Company in place of Alyssa A. Sloan.
2
The petitioner also appealed the claims administrator’s March 18, 2018, order,
which closed his claim for temporary total disability benefits. In its September 26, 2019,
order, the Office of Judges reversed that decision and ordered that the petitioner be granted
temporary total disability benefits as substantiated by proper medical evidence. The
employer appealed, and the Board of Review upheld the decision of the Office of Judges
granting the petitioner temporary total disability benefits in its February 20, 2020, order.
1
This Court has carefully reviewed the parties’ briefs and the submitted appendices,
and the case is mature for consideration. 3 Upon review of the briefs, records, and
applicable authorities, this Court finds that 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 petitioner, a maintenance worker, injured his right knee during the course of his
employment with the respondent when he was demolishing a catwalk and slipped while
carrying pieces of rusted steel and old wood. At his June 21, 2018, deposition, the
petitioner explained that
my left foot went out from under me, and I kind of fell on my
– my body weight down onto my right knee. My right foot like
landed under my butt. I kind of just slipped. And everything
fell down on me.
The petitioner filed a workers’ compensation claim with a date of injury of September 1,
2017. 4 The claim was held compensable with a diagnosis of right knee contusion based on
an initial evaluation of the petitioner’s injury by Corporate Health at Wheeling Hospital on
September 7, 2017.
Following the initial exam, Corporate Health sent the petitioner to the Wheeling
Hospital emergency room for further evaluation because of concerns of “internal
derangement.” The petitioner was then referred to the orthopedic department where he
was evaluated by Jeffrey Abbott, MD, an orthopedic surgeon. The petitioner had suffered
a previous right knee injury in February 2016 and had undergone knee replacement surgery
on October 18, 2016. 5 On September 14, 2017, Dr. Abbott diagnosed the petitioner with
The employer did not appeal that decision to this Court. Therefore, the petitioner’s receipt
of temporary total disability benefits is not an issue in this appeal.
3
This case was scheduled for oral argument on October 5, 2021. On September
22, 2021, the parties filed a joint motion to waive oral argument and to submit the appeal
on briefs. By order entered September 27, 2021, this Court granted the motion.
4
During his deposition, the petitioner testified that the injury actually occurred on
August 25, 2017, but that he did not have soreness, stiffness and swelling of his right knee
until a week later. He then told his employer that he needed to see a doctor. According to
the petitioner, he was asked by his supervisor to file his claim with an injury date of
September 1, 2017, because his original report of the injury had been thrown away.
5
According to the petitioner, his 2016 injury also occurred at work when he got his
foot caught on a foot brake of a crane and “hyper extended” his knee. The petitioner
2
an infection of his total right knee replacement, and he indicated that the petitioner needed
“incision and drainage surgery with polyethylene liner exchange and static anabolic
spacer.” Based on his examination, Dr. Abbott requested that the petitioner’s claim also
be held compensable for the diagnosis of septic knee.
On September 18, 2017, Dr. Abbott performed the drainage surgery, which required
the complete removal of the petitioner’s knee replacement from his October 2016 surgery
and the placement of an anabolic spacer. Dr. Abbott consulted with Yuriko Fukuta, MD,
an infectious disease physician, regarding the petitioner’s infection. In a September 19,
2017, consultation report, Dr. Fukuta indicated that he previously treated the petitioner in
February 2016 when he suffered a MRSA infection, and this time “the fluid culture has
grown Streptococcus viridans.” In a November 1, 2017 letter, Dr. Fukuta further
explained: “I took care of him last year when he had severe MRSA infection. I do not think
his current infection is due to his previous infection as the causative organism is different.”
After the petitioner’s infection cleared, he had a third surgery on March 5, 2018, to
take out the anabolic spacer and put in another knee replacement. Subsequently, the
petitioner suffered yet another infection, which resulted in him undergoing a fourth
surgery. According to the petitioner, his last surgery was to “clean out the infection and
replace the hardware.” At the time of his deposition, the petitioner remained under the care
of Dr. Abbott.
With respect to whether the petitioner’s septic knee diagnosis should be held
compensable, Rebecca Thaxton, MD, opined in a September 26, 2017, Physician Review:
“Blunt trauma to the right status post TKA knee on 9/1/17 could have compromised the
tissue and increased the claimant’s risk for knee/TKA infection.” Conversely, D. Kelly
Agnew, MD, an orthopedic surgeon who reviewed the claimant’s medical records on
behalf of the employer, opined in a November 20, 2017, report, that “the September 1,
2017 reported work site event did not cause septic total knee arthroplasty in this case.” Dr.
Agnew explained the basis for his opinion in his report as follows:
Ultimately, Mr. Barganski was found to have a septic
total knee arthroplasty. This is a recognized complication of
total knee arthroplasty. His organism, streptococcus viridans,
is considered normal flora in the respiratory tract but also can
be involved in dental disease.
....
testified that he filed a worker’s compensation claim for his 2016 injury, but it was not held
compensable because he had pre-existing arthritis as a result of an injury to his knee when
he was nineteen years old.
3
When Dr. Abbott performed the procedure of
September 18, 2017, he identified not only gross purulence
within the knee but also grossly loose implants at the femur and
tibia. He clearly described large amounts of synovitis. He
clearly described that upon passing an osteotome between the
cement-bone interface at the femur there was “pus coming
out.”
Dr. Abbott’s description is that of established or chronic
joint infection. Hypothetically, had there been something to
cause joint infection seventeen days ago, one would have
expected some synovial involvement without bone or implant
involvement. In this case, chronic involvement was described
with infection extending beneath the implants both on the
femur and the tibia and, in fact, gross loosening of those
implants. Loosening of implants is not a finding consistent
with a seventeen-day infection history. Rather, loosening of
implants is a chronic infection finding.
Likewise, Syam B. Stoll, MD, who also reviewed the petitioner’s records on behalf of the
employer, opined in a December 8, 2017, Physician Review:
Based on the medical records that were provided for
review in this claim, as well as review of the orthopedic surgery
IME by Dr. Agnew, it is my medical opinion that I concur with
Dr. Agnew and [sic] regarding the lack of objective
documentation to support the following in regards to the
claimant’s right knee: hospitalizations, treatments, future
reimplantation of his total knee arthroplasty, post-operative
rehabilitation as being causally related to the accepted
compensable diagnosis in this claim which is . . . contusion of
the right knee, initial encounter.
As set forth above, the claims administrator denied the addition of septic knee as a
compensable diagnosis and denied authorization for treatment of that diagnosis by orders
entered on December 18, 2017, and February 8, 2018. In its September 26, 2019, order
upholding those decisions, the Office of Judges found the reports of Drs. Agnew and Stoll
to be persuasive. In that regard, the Office of Judges noted that
Dr. Agnew performed a record review and opined that
there was no direct and causal relationship between the
September 1, 2017 incident and the diagnosis of septic knee,
the diagnostic testing, hospitalization, and surgical
4
intervention. All treatment was appropriate but identified a
chronic process. He said any contusion sustained on
September 1, 2017, would have long since resolved and further
treatment . . . would bear no relationship to that isolated event.
The employer’s argument is further supported by the
Physician Report of Syam Stoll, MD . . . [who] concurred with
Dr. Agnew[.]
Upon appeal, the Board of Review adopted the findings and conclusions of the
Office of Judges and affirmed its decision by order entered on February 20, 2020.
The standard of review applicable to this Court’s consideration of this workers’
compensation appeal is set forth in West Virginia Code § 23-5-15 (2005), in relevant part,
as follows:
(b) In reviewing a decision of the board of review, the
supreme court shall consider the record provided by the board
and give deference to the board’s findings, reasoning, and
conclusions . . .
(c) 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 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 re-weighing of the evidentiary record. If
the court reverses or modifies a decision of the board pursuant
to this subsection, it shall state with specificity the basis for the
reversal or modification and the manner in which the decision
of the board clearly violated constitutional or statutory
provisions, resulted from erroneous conclusions of law, or was
based upon the board’s material misstatement or
mischaracterization of particular components of the
evidentiary record. 6
6
West Virginia Code § 23-5-15 was amended in 2021 after this appeal was filed
with the amended version becoming effective on June 30, 2021. The subsections quoted
5
(Footnote added).
Upon review of the record, we find no error. For an additional diagnosis to be added
to a claim, it must be causally related to the initial compensable injury or events that caused
the compensable injury. In other words, the criteria for holding an additional diagnosis
compensable is the same as that for the initial injury. As set forth in syllabus point one of
Barnett v. State Workmen’s Compensation Commissioner, 153 W.Va. 796, 172 S.E.2d 698
(1970). “In order for a claim to be held compensable under the Workmen’s Compensation
Act, three elements must coexist: (1) a personal injury (2) received in the course of
employment and (3) resulting from that employment.” This Court has observed that
“[p]ursuant to W. Va. Code § 23-4-1g(a) (2003) (Repl. Vol. 2010), a claimant in a workers’
compensation case must prove his or her claim for benefits by a preponderance of the
evidence.” Syl. Pt. 2, Gill v. City of Charleston, 236 W.Va. 737, 783 S.E.2d 857 (2016).
In this case, the decision of the Office of Judges, as affirmed by the Board of Review, is
supported by a preponderance of evidence indicating that the petitioner’s septic knee is a
chronic disease process that did not result from his reported September 1, 2017, work
injury. Accordingly, the Board of Review did not err in denying the request to hold the
claim compensable for the petitioner’s septic knee diagnosis nor did it err in denying
authorization for treatment of that diagnosis. Therefore, the September 20, 2020, decision
of the Board of Review is affirmed.
Affirmed.
ISSUED: November 5, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
above were redesignated as (c) and (d) respectively and other stylistic changes were made,
but the language was not altered.
6