Full Opinion (html_with_citations)

       IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

                                                                              FILED
GLOBE SPECIALTY METALS,
                                                                         December 15, 2023
Employer Below, Petitioner
                                                                           EDYTHE NASH GAISER, CLERK
                                                                         INTERMEDIATE COURT OF APPEALS
vs.) No. 23-ICA-380         (JCN: 2020001961)                                   OF WEST VIRGINIA



VERNON CARPENTER,
Claimant Below, Respondent


                             MEMORANDUM DECISION

        Petitioner Globe Specialty Metals (“GSM”) appeals the July 26, 2023, order of the
Workers’ Compensation Board of Review (“Board”). Respondent Vernon Carpenter timely
filed a response. 1 Petitioner did not file a reply. The issue on appeal is whether the Board
erred in reversing the claim administrator’s order, which denied a request to reopen Mr.
Carpenter’s claim for temporary total disability (“TTD”) benefits.

       This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

       On July 19, 2019, Mr. Carpenter reported an injury to his right knee “when prying
over carbon with a slate bar and felt something give in his leg.” According to the Board’s
October 6, 2022, order, Mr. Carpenter completed an Employees’ and Physicians’ Report
of Occupational Injury or Disease form, which indicated a diagnosis of right knee sprain.
The Board’s order noted that the form also indicated that the injury aggravated a prior
injury. The Board’s order further noted that on September 13, 2018, Mr. Carpenter was
diagnosed with a right acute medial posterior meniscus horn tear and later underwent
arthroscopy with partial medial meniscectomy to repair the tear. By order dated September
24, 2019, the claim administrator denied the claim.

       Subsequently, in January of 2020, Mr. Carpenter underwent an MRI of the right
knee. The MRI revealed a prior partial meniscectomy of the medial meniscus posterior
horn with an absent portion of the posterior horn. Linear signal abnormalities extending
into the posterior root and the anterior body were also noted, which could represent either

       1
        GSM is represented by Jeffrey B. Brannon, Esq. Mr. Carpenter is represented by
Patrick K. Maroney, Esq.
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residual or new horizontal oblique tears. There was low-grade chondrosis of the patellar
apex with no deep chondrosis evident in any of the three compartments. A trace Baker’s
cyst was noted. There was no ligamentous pathology.

       On March 19, 2021, the Office of Judges (“OOJ”) reversed the September 24, 2019,
claim administrator order, and held the claim compensable for a right knee sprain, which
was later affirmed by the Board. On May 4, 2021, John Pierson, M.D., completed a
Diagnosis Update form, requesting that a right acute posterior medial meniscus horn tear
be added as a compensable condition in the claim. By order dated May 7, 2021, the claim
administrator denied the request, finding that the requested condition was not causally
related to the injury sustained on July 19, 2019. Mr. Carpenter protested this order.

       In November of 2021, Mr. Carpenter and Dr. Pierson completed a claim reopening
application for temporary total disability “(TTD”) benefits. The form indicated that Mr.
Carpenter had experienced an aggravation and/or progression of the condition resulting
from the compensable injury and facts or factors pertaining to the disability that had not
been previously considered. Dr. Pierson listed the medial meniscus tear of the right knee
as the diagnosis and indicated that Mr. Carpenter continued to have diffuse pain that was
worsening due to constantly being on his feet and that his knee was “giving away” due to
lack of improvement from conservative treatment. Dr. Pierson requested authorization for
a right knee arthroscopy with debridement of the medial meniscus. Dr. Pierson listed the
period of TTD as November 4, 2021, through February 7, 2022. On November 9, 2021,
the claim administrator denied the reopening application, finding that the evidence
submitted did not establish that Mr. Carpenter had sustained an aggravation or progression
of the compensable injury or that the disability referenced in the form was related to the
compensable injury. Mr. Carpenter protested this order.

       Mr. Carpenter underwent an arthroscopy of the right knee with partial medial
meniscectomy in April of 2022, which was performed by Paul Legg, M.D. On June 21,
2022, the OOJ affirmed the claim administrator’s November 9, 2021, order, by rule, noting
that Mr. Carpenter had failed to submit any evidence in support of his protest. Dr. Legg
released Mr. Carpenter to return to work on May 9, 2022.

        Thereafter, Dr. Legg assisted Mr. Carpenter in completing a new claim reopening
application for TTD benefits on July 8, 2022, seeking retroactive TTD benefits from
November 4, 2021, to May 9, 2022, due to the meniscus tear. The application indicated
that there had been no aggravation and/or progression of the condition occurring after the
claimant had resumed employment or reached maximum medical improvement (“MMI”)
and listed the current diagnoses as “after care” and tear of the right medial meniscus.

       By order dated September 12, 2022, the claim administrator denied Mr. Carpenter’s
July 2022 TTD reopening application. On October 6, 2022, the Board reversed the claim
administrator’s May 7, 2021, order and accepted the condition of right acute posterior
                                            2
medial meniscus horn tear as a compensable diagnosis in the claim. The Board also
retroactively approved the arthroscopy/debridement of the medial meniscus. Subsequently,
Mr. Carpenter and Dr. Legg completed another claim reopening application for TTD
benefits in November of 2022, which was nearly identical to the reopening application filed
in July 2022. Dr. Legg indicated that there had been no aggravation and/or progression of
the condition occurring after the claimant had resumed employment or reached MMI and
listed the current diagnoses as “after care” and tear of the right medial meniscus. It is
important to note that though Dr. Legg indicated that no aggravation or progression of the
compensable injury had occurred, the question is phrased to ask whether an aggravation or
progression occurred after the claimant had reached MMI or resumed employment. At the
time Dr. Legg was completing this application, he had already released Mr. Carpenter to
work and was indicating that there had been no aggravation or progression since that date.
Indeed, Dr. Legg indicated that the period Mr. Carpenter was temporarily and totally
disabled was from November 4, 2021, the date Dr. Pierson took Mr. Carpenter off work,
through May 9, 2022, the date Dr. Legg released him to work.

        Mr. Carpenter testified via deposition on March 6, 2023, regarding his injury and
resulting treatment. Mr. Carpenter indicated that he received short-term disability from
around December of 2021, through May of 2022.

       On May 25, 2023, GSM submitted a closing argument, asserting that Mr. Carpenter
did not establish an aggravation to or progression of the compensable injury to justify
reopening the claim for TTD benefits. GSM further argued that, even if Mr. Carpenter had
established that he was entitled to TTD benefits, an offset would be made against the TTD
benefits for the amount of short-term disability benefits that he had received. Lastly, GSM
argued that the litigation was barred by the doctrine of res judicata because the issue had
previously been litigated to finality.

       By order dated July 26, 2023, the Board reversed the claim administrator’s order
and granted Mr. Carpenter TTD benefits from November 4, 2021, through May 9, 2022,
with an offset pursuant to West Virginia Code § 23-4-1c(j) (2009) for any short-term
disability benefits Mr. Carpenter may have received while this claim was denied. The
Board noted that the claim had been held compensable for a right knee sprain and a right
acute posterior medial meniscus horn tear and that Mr. Carpenter had not received any
TTD benefits. The Board further noted that the right acute posterior medial meniscus horn
tear was not added to the claim until October of 2022. The Board found that Dr. Legg had
indicated that Mr. Carpenter was temporarily and totally disabled from November 4, 2021,
through May 9, 2022, due to the meniscal tear and related surgery, and that no evidence to
the contrary had been submitted.

       Regarding the short-term disability benefits Mr. Carpenter received, the Board
found that neither the short-term disability plan agreement nor the dates these benefits were
paid was submitted before the Board. The Board noted that under West Virginia Code §
                                             3
23-4-1c(j), an offset of benefits is appropriate if a claimant receives short-term disability
benefits under a “plan provided by the employer to which the employee has not
contributed.” Here, because the record did not provide such details, the Board declined to
address whether Mr. Carpenter had contributed toward the plan and whether the plan
included an offset for TTD benefits. GSM now appeals.

        Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:

       The Intermediate Court of Appeals may affirm the order or decision of the
       Workers’ Compensation Board of Review or remand the case for further
       proceedings. It shall reverse, vacate, or modify the order or decision of the
       Workers’ Compensation Board of Review, if the substantial rights of the
       petitioner or petitioners have been prejudiced because the Board of Review’s
       findings are:
       (1) In violation of statutory provisions;
       (2) In excess of the statutory authority or jurisdiction of the Board of Review;
       (3) Made upon unlawful procedures;
       (4) Affected by other error of law;
       (5) Clearly wrong in view of the reliable, probative, and substantial evidence
       on the whole record; or
       (6) Arbitrary or capricious or characterized by abuse of discretion or clearly
       unwarranted exercise of discretion.

Duff v. Kanawha Cnty. Comm’n,
247 W. Va. 550
, 555,
882 S.E.2d 916
, 921 (Ct. App.
2022).

       On appeal, GSM argues that Mr. Carpenter failed to demonstrate that he had an
aggravation or progression of his compensable injury that warranted TTD benefits. GSM
argues that Mr. Carpenter submitted two separate reopening applications dated July 8,
2022, and November 9, 2022, and that both times Dr. Legg checked a box affirmatively
stating that Mr. Carpenter had not suffered an aggravation or progression of the
compensable condition. GSM further argues that this issue is barred by res judicata and
collateral estoppel principles. GSM states that the issue of TTD benefits during the
requested period was previously finally litigated when the OOJ affirmed the claim
administrator’s order denying the benefits, which Mr. Carpenter did not appeal. As such,
GSM states that Mr. Carpenter is barred from raising any argument regarding TTD
benefits. We disagree.

      As the Supreme Court of Appeals of West Virginia has set forth, “[t]he ‘clearly
wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones which
presume an agency’s actions are valid as long as the decision is supported by substantial
evidence or by a rational basis.” Syl. Pt. 3, In re Queen,
196 W. Va. 442
,
473 S.E.2d 483 
                           4
(1996). With this deferential standard of review in mind, we cannot conclude that the Board
was clearly wrong in reversing the claim administrator’s orders and granting the petition
to reopen the claim for TTD benefits.

        In order to reopen a claim for TTD benefits, a claimant must show an aggravation
or progression of a compensable condition or facts not previously considered. See West
Virginia Code § 23-5-2 (2005) and § 23-5-3a (2022). GSM argues that Mr. Carpenter failed
to demonstrate a progression or aggravation of his compensable condition; however, GSM
completely ignores the second basis upon which a claim for TTD benefits may be
reopened—the presence of facts not previously considered. 2 GSM is correct that the claim
administrator issued an order denying TTD benefits, which the OOJ affirmed by rule and
Mr. Carpenter did not appeal. However, importantly, the claim had not yet been held
compensable for the medial meniscus tear. At the time the initial two applications for TTD
benefits were being considered by the lower tribunals, the claim was only compensable for
a knee sprain. The meniscus tear was not added to the claim until October of 2022 and,
following the order holding that diagnosis compensable, Dr. Legg completed a third
reopening application, which listed the meniscus tear as the basis of Mr. Carpenter being
temporarily and totally disabled. The addition of the medial meniscus tear to the claim is
sufficient to demonstrate a fact not previously considered, warranting the opening of the
claim for TTD benefits.

       We likewise find that any arguments regarding collateral estoppel or res judicata do
not apply. 3 Because the meniscus tear had not been added to the claim at the time the prior

       2
         To the extent GSM argues that Dr. Legg indicated on the reopening application
that Mr. Carpenter had not suffered an aggravation or progression to the compensable
injury, we find such argument to be a mischaracterization of the evidence. The question
referenced by GSM is stated as follows: “Has there been an aggravation or progression of
the claimant’s disability since being released to resume employment or being certified as
having reached maximum degree of medical improvement?” (Emphasis added). Dr. Legg
checked “No” in response. Importantly, Dr. Legg completed the form after Mr. Carpenter
had been released to work on May 9, 2022, and was indicating that Mr. Carpenter’s period
of TTD was from November 4, 2021, when Dr. Pierson took him off work, until May 9,
2022, the date Dr. Legg released him to work following the authorized surgery to repair
the meniscus tear. Accordingly, contrary to GSM’s argument, Dr. Legg was not indicating
that no aggravation or progression had occurred at all. Instead, he was simply indicating
that no aggravation or progression had occurred after May 9, 2022. Moreover, as addressed
more fully above, GSM’s argument focuses solely on the aggravation and/or progression
of a compensable condition and fails to consider that the addition of the meniscal tear and
resultant authorized surgery were facts not previously considered, which warranted
reopening the claim for TTD benefits.
       3
         As the Supreme Court of Appeals of West Virginia recently explained,

                                             5
reopening applications were litigated to finality, there were no holdings on the merits as it
pertained to TTD benefits attributable to that diagnosis. Accordingly, these doctrines are
not implicated here.

       For the foregoing reasons, we affirm the Board’s July 26, 2023, order.

                                                                                  Affirmed.

ISSUED: December 15, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen




       [c]ollateral estoppel pertains to “issue” preclusion and requires that an
       identical issue have been “actually litigated” among the parties or their
       privies in other litigation. Res judicata pertains more broadly to “claim”
       preclusion and bars relitigation of claims that were either actually litigated
       or could have been litigated in other proceedings.

Chalifoux v. W. Va. Dept. of Health and Human Res., __ W. Va. __, __ S.E.2d __,
2023 WL 7038448
, at *10 (2023).
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