Constellium Rolled Products v. William E. Leonard ( 2022 )

FILED
March 23, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
CONSTELLIUM ROLLED PRODUCTS,
Employer Below, Petitioner
vs.) No. 20-0812 (BOR Appeal No. 2055062)
(Claim No. 2017023510)
WILLIAM E. LEONARD,
Claimant Below, Respondent
MEMORANDUM DECISION
Petitioner Constellium Rolled Products, by Counsel Alyssa A. Sloan, appeals the decision
of the West Virginia Workers’ Compensation Board of Review (“Board of Review”). William E.
Leonard, by Counsel Edwin H. Pancake, filed a timely response.
The issue on appeal is the addition of a condition to the claim. The claims administrator
denied the addition of type two diabetes with left foot skin ulcer and left lower limb swelling,
mass, and lump to the claim on October 19, 2018. The Workers’ Compensation Office of Judges
(“Office of Judges”) modified the decision in its January 17, 2020, Order and added osteomyelitis
with pathological fracture in the left foot to the claim. The Order was affirmed by the Board of
Review on September 18, 2020.
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.
The standard of review applicable to this Court’s consideration of workers’ compensation
appeals has been set out under W. Va. Code § 23-5-15, in relevant part, as follows:
(b) In reviewing a decision of the board of review, the supreme court of
appeals shall consider the record provided by the board and give deference to the
board’s findings, reasoning and conclusions . . . .
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(d) If the decision of the board effectively represents a reversal of a prior
ruling of either the commission or 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 provisions, is clearly the result of erroneous conclusions
of law, or is so clearly wrong based upon the evidentiary record that even when all
inferences are resolved in favor of the board’s findings, reasoning and conclusions,
there is insufficient support to sustain the decision. The court may not conduct a de
novo re-weighing of the evidentiary record.
See Hammons v. W. Va. Off. of Ins. Comm’r, 235 W. Va. 577, 582-83, 775 S.E.2d 458, 463-64
(2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission,
230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions
of law arising in the context of decisions issued by the Board. See also Davies v. W. Va. Off. of
Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011).
Mr. Leonard, a casting operator, developed a diabetic ulcer and left foot cellulitis in the
course of his employment. March 31, 2017, treatment notes from Activate Healthcare indicate Mr.
Leonard reported a chronic problem with left foot blisters. He stated that he has a significant
history of foot blisters that take three to four months to heal. It was noted that Mr. Leonard is a
diabetic who is noncompliant with his medication. The diagnoses were diabetes with foot ulcer,
cellulitis of the left lower limb, ketonuria, and glycosuria.
Mr. Leonard was also treated at Pleasant Valley Hospital on March 31, 2017, for a left foot
ulcer that appeared a month prior. Mr. Leonard was admitted for cellulitis. A left foot MRI showed
possible osteomyelitis and cellulitis. On April 3, 2017, Mr. Leonard underwent debridement. Mr.
Leonard was discharged the following day with the diagnoses of Methicillin resistant Staph Aureus
osteomyelitis with cellulitis of the left foot, type II diabetes, and hypertensive cardiovascular
disease.
Charlie Murray stated in a January 3, 2018, affidavit that he provides boots to the
employees. There is an exemption to wearing the boots through a doctor’s excuse. Mr. Leonard
was given his boots on August 31, 2016, and since that time, he reported to the operations manager
that the boots were uncomfortable. Mr. Leonard was advised to obtain an exemption through his
physician but failed to do so. The claims administrator denied the addition of type two diabetes
with left foot skin ulcer and left lower limb swelling, mass, and lump to the claim on October 19,
2018.
A left foot x-ray was performed on November 28, 2018, for an open wound on the left big
toe and a knot on the foot. The x-ray showed chronic osteomyelitis of the fifth toe base with a
pathologic fracture and significant periosteal reaction. There was no definite osseous erosion of
the great toe. Mr. Leonard was treated by Whitney Watterson, FNP-BC, on December 5, 2018, for
follow up and management of his wound. Mr. Leonard was referred to orthopedics for a
pathological fracture. The diagnoses were left ankle and foot chronic multifocal osteomyelitis and
unspecified open left big toe wound. The request for a referral to orthopedics was denied on
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January 29, 2019, because osteomyelitis with pathological fracture is not a compensable claim.
The claims administrator noted that the compensable conditions in the claim are diabetic ulcer and
left foot cellulitis.
In a February 4, 2019, treatment note, Ms. Watterson noted that the diagnoses remained
the same and opined that Mr. Leonard required treatment by orthopedics as soon as possible. A
left foot x-ray was performed on February 4, 2019, which showed no new fractures but did show
soft tissue swelling and pathological fracture due to osteomyelitis involving the fifth toe on the left
foot. A February 12, 2019, left foot MRI showed degenerative changes, an old, healed fracture in
the fourth metatarsal, and pathological comminuted fracture in the fifth metatarsal. There was
evidence of cellulitis and osteomyelitis, but no measurable abscess was seen.
On February 18, 2019, the claims administrator denied authorization of a request from
Pleasant Valley Hospital for a transfer to St. Mary’s Hospital because such treatment was not
necessary for a compensable injury. The claims administrator denied authorization for
Vancomycin and Per Diem Q12h on February 18, 2019, because such treatment was not necessary
or related to a compensable condition in the claim.
Mr. Leonard testified in a May 29, 2019, deposition that he developed a left foot ulcer in
2017, which was held compensable. In November of 2018, his ulcer returned, and he was again
unable to work. In the course of treatment for his wound, it was discovered that Mr. Leonard had
a bone infection and a broken foot. Mr. Leonard testified that the knot in his left foot developed
after he underwent surgery for his compensable ulcer. Mr. Leonard stated that after he returned to
work following his first ulcer, he switched to boots that did cause skin issues on his feet. He wore
those boots for approximately a month until a safety issue required him to wear the old boots.
Christopher Martin, M.D., performed an Independent Medical Evaluation on August 19,
2019, in which he opined that Mr. Leonard’s osteomyelitis and cellulitis resulted from his skin
ulcer. He stated that the infection spread from the skin, into the underlying soft tissue, and then
into the bone, weakening the fifth metatarsal until it broke. Dr. Martin noted that there is clear
medical evidence that Mr. Leonard was developing blisters on his feet even when he was off of
work. Dr. Martin noted that Mr. Leonard was treated on December 27, 2018, at the wound clinic
and it was noted at that time that he was made aware that he had developed a small blister on his
big toe. Dr. Martin stated that it was not uncommon for people with diabetes to be unaware of
blisters because they sometimes cannot feel them due to peripheral neuropathy. Dr. Martin also
noted a June 28, 2017, treatment note by Dr. Fine, in which it was noted that Mr. Leonard had a
bony mass around the fifth metatarsal and the skin around such knot was reactive. Mr. Leonard
was advised to modify his sneakers for more room around the knot. Dr. Martin stated that this
incident occurred at a time that Mr. Leonard was not working. Dr. Martin opined that it was not
possible to a reasonable degree of medical certainty to contribute Mr. Leonard’s condition to his
work duties. He reiterated that diabetic ulcers often go unnoticed until they are advanced and such
ulcers can be caused by very minor skin damage. In an October 19, 2019, addendum to his
evaluation, Dr. Martin opined that Mr. Leonard’s current condition is the result of his preexisting,
untreated diabetes. He stated that he does not feel that there is evidence to support that any aspect
of Mr. Leonard’s condition is the result of his work.
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In its January 17, 2020, Order, the Office of Judges modified the claims administrator’s
October 19, 2018, decision and added osteomyelitis with pathological fracture in the left foot to
the claim. It found that Mr. Leonard testified in a deposition that his initial injury was a left foot
ulcer that developed as a result of his work required boots, for which he underwent surgery.
Following the surgery, Mr. Leonard developed a knot where the surgery was performed. When
Mr. Leonard initially returned to work, he started wearing a different pair of boots that did not
cause him any foot problems. However, those boots did not meet safety standards, and Mr. Leonard
was required to go back to wearing the boots that caused the original injury. Shortly thereafter,
Mr. Leonard again developed left foot issues. The Office of Judges concluded that Mr. Leonard’s
new left foot issues were a continuation of his previous injury. Mr. Leonard filed a new claim for
osteomyelitis and a skin ulcer, but the claim was denied. The claims administrator stated that the
conditions were a continuation of the original injury. The Office of Judges noted that Dr. Martin
opined that Mr. Leonard’s left foot problems were not work-related because the symptoms began
at a time that Mr. Leonard was not working. However, it was noted by Dr. Fine on June 28, 2017,
that Mr. Leonard was developing erythema where the original ulcer began. Further, Dr. Martin
opined that the osteomyelitis with pathological fracture in the left foot developed because the
infection from the original ulcer migrated into the bone, causing it to break. The Office of Judges
concluded that osteomyelitis with pathological fracture in the left foot should be added to the claim.
The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges
and affirmed its Order on September 18, 2020.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The standard for the addition of conditions to a claim is the same
as for compensability. For an injury to be compensable it must be a personal injury that was
received in the course of employment, and it must have resulted from that employment. Barnett v.
State Workmen’s Comp. Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970). A preponderance of
the evidence indicates that Mr. Leonard’s osteomyelitis with pathological fracture in the left foot
developed as a result of his prior compensable ulcer.
Affirmed.
ISSUED: March 23, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice Alan D. Moats, sitting by temporary assignment
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