City of Wheeling v. Cody Melsop - Workers' Compensation Appeal

1 I N THE I NTERMEDIATE C OURT OF A PPEALS OF W EST V IRGINIA CITY OF WHEELIN G, Employer Below, Peti tioner v.) No. 25- ICA -338 (JC N: 2024012069) CODY MELSOP, Claimant Below, Res pondent MEMORANDUM D ECISION Petitioner City of Wheeling (“Wheeling”) appeals the July 21, 202 5, order of the Workers’ Compensation Board of Review (“ Board”). Responde nt Cody Mel sop file d a response. 1 Wheel ing di d not reply. The issue on appeal is whether the Board erred in reversing the c laim administrator ’s order s, w hich denied th e additio n of right knee medial meniscal tear to the claim as a compensable co ndition and denied temporary total disability (“TTD”) benefits. This Court has jurisdic tion over thi s appeal pursuant to West Virgin ia Code § 51 - 11-4 (2024). After co nsidering the parties’ arguments, t he record on appeal, and th e applicable la w, this Court finds no substantial question of law and no prejudicial error. For these reas ons, a memo randum decision affir ming the Boar d’s orde r is appropriate under Rule 21 of the Rules of Appellate Procedur e. On December 21, 2023, while employe d by Wheeling as a firefig hter, Mr. Melsop suffered an injury to his right knee when carrying a forty -pound tote upstairs. On the same day, Mr. Melsop completed an E mployees’ and Physicians ’ Report of Occupational Injury or Disease alleging that he injured his right knee while walking up the stairs at th e fire station. The physician’ s section of the a pplication was completed b y a provider at the Wheeling Hospital E mergency Department, who indicated that Mr. Melsop sust ained an occupational injury to his right knee. Mr. Melsop wa s seen by Scott Miller, FNP-C, on December 22, 2023. Mr. Melsop reported that the day before, while walking up the stairs at work, he he ard a pop in his right knee and has had right knee pain since the in jury. Mr. Melsop further reported difficulty walking up and down stairs due to the knee pa in. FNP - C Miller noted decreased rang e of 1 Wheeling is represent ed by Aimee M. Stern, Esq. Mr. Me lsop is represented by Sandra K. Law, Esq. FILED February 27, 2026 ASHLEY N. DEE M, CHIEF DEPUTY C LERK INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

2 motion and tenderness over the lateral joint lin e and lateral collateral ligament. A right knee x- ray revealed patellar narrowing and spurring. FNP-C Miller as sessed right knee pain. On December 2 8, 202 3, Mr. Melsop was seen by Ross Tennant, NP. Mr. Melsop reported he w as walking up a fligh t of stair s at work when he experienced a popping sensation in his right knee and, since the injur y, he has had pain and swelling in his right knee and difficulty walking. Mr. Melsop denied any previous injuries to his right knee. NP Tennant assessed a rig ht knee spra in and i ndicated that Mr. Mels op should begin phys i cal therapy and un dergo a n MRI to h elp determi ne if there wa s interna l derangement. M r. Tennent restricted Mr. Melsop to sedentary w ork. An Employer’s Repor t of Occupational Injury or Diseas e was completed by Rebecca Fisher, Huma n Resources Administr ative Assistant, dated January 8, 2024. Ms. Fisher indicated that Mr. Melsop reported his injury to Seth Mowder on December 21, 2021, that she had no r eason to question the injury, and th at light duty was availab le. F rom January 8, 2024, to Janua ry 11, 20 24, Mr. Melsop attended physical ther apy at Wheeling Hospital. On January 8, 2024, the physical therapist concluded that Mr. Melsop was to receive treatment three times per week for four weeks. On Jan uary 9, 2024, the c laim administrator issued an order reject ing the claim based on a finding that the injury was not work related. 2 On January 11, 2024, Mr. Mels op was discharged from physi cal therapy because his w orkers’ comp ensation claim was de nied. In his January 11, 2024, report, NP Tennant indicated that Mr. Melso p’s symptoms had resolv ed and he requested that he be released to return to work ful l duty. NP Tennant released Mr. Melsop to return to work with no restrictions. On February 9, 2024, Mr. Melso p was seen by Renato DelaCruz, M.D., wh o assessed internal derangements and arthritis of the right knee. Dr. Del aC ruz ordered a right 2 On August 22, 2024, the Board reverse d the c laim a dministrator’s or der of January 9, 2024, which reject ed the clai m, and held the claim compen sable for a right knee sprai n. The Board noted that Mr. Me lsop was not pr ecluded from seekin g to add other diag noses, including right medial meniscus tear, as compensable components of the claim. The Board remanded the claim to the c laim administrator with instructions to iss ue a protes table order addressing the claiman t’s entitlement to temp orary total di sability b enefits. On April 29, 2025, this Court issued a memorandum d ecision affirming the Board ’s o rder. See City of Wheeling v. Melsop, No. 24 - ICA -379, 2 025 WL 1249650 (W. Va. Ct. App. April 29, 2025) (memorandum decision). On October 21, 2025, the Supreme Court of Appeals of West Virginia affirmed this Court’s decision. See City of Wheeling v. Melsop, No. 25 -382, 2025 WL 2962901 (W. Va. Oct. 21, 2025) (memor andum decision).

3 knee MRI. O n March 1, 2024, Mr. Melsop underwent a right knee MRI revealing an irregularity at the post erior horn of the medial meniscus without displaced tearing; the medial compartment h ad signif icant cartilage l oss along the centr al weight bearing p ortions with underly ing moderate edema; lateral cartilage loss was mild; patellofemoral cartilage loss was mild; large knee joint effusion; and small joint bodies were seen along the posterior margin of the anterior cruciate liga ment. Darren Frank, M.D., performed an ortho pedic evaluation of Mr. Melsop on April 1, 2024. Dr. Frank reviewed the MRI and indicated there was high-grade cartilage loss i n the medial compartment, particularly on the medial femoral condyle, and there appear ed to be a tear of the posterior horn of the med ial meniscus, approaching the menis cal r oot. Dr. Frank diagnosed a med ial meniscus tear an d medial compartment o steoarthritis. A Diagnosis Update s igned by Dr. Frank o n April 4, 2024, n oted the primary diagnosis was M25.561 (pain in right knee). Dr. Frank indicat ed that the claimant would undergo a rig ht knee medial meniscectomy versus meniscal root repair. Th e for m also noted that Mr. Melsop required a medial me niscectomy versus a r oot repair. On April 16, 2 024, Mr. Melsop was de posed a nd testified that he is a fire engineer and EMT. Mr. Melsop testified that when he was not out on a call, his duties at the station included cu tting gra ss, cleaning the station, salting the d riveway, shoveling sn ow, doi ng laundry, cooking meals, detailing vehicles, per forming minor maintenance on the vehicles, res tocking supply cl osets, restocki ng equipm ent, and training. Mr. Melsop stated that o n December 21, 2023, he was carrying a l arge tote with about f orty pounds of supplies fro m the laundry room, whic h is downstairs, and he proceeded up t he stairs. Mr. Melsop testified that about halfway up the stairs, he felt an excruciating pain in his right knee and immediately thereafter felt a loss of stabi lity and that his knee was wea k. Mr. Me lsop stated that he could not put a lot of weight on his knee and that the pain was getting worse as he continued to go up the stairs. Mr. Melsop testified that he iced his knee and was able to finish his shift, and after his shift, he went to Urgent Care. On April 23, 2024, M r. Melsop underwent a right knee arthroscopy with medial meniscal root rep air performed by Dr. Frank. The claim administ rator issued an order dated September 20, 20 24, denying TT D benefits. A Diagnosis Update was signed by Dr. Frank on Septemb er 30, 2024, and listed a diagnosi s of right kn ee medial meniscal tear. On February 6, 2025, Jerry B. Mag one, M.D., issued a medical file review report opin ing that the right knee medial meniscus tear was not caused by the injury of December 21, 2023. The claim administrator’s order dated February 10, 202 5, denied the request to add right knee media l meniscal tear as a compensable component of the cl aim based on Dr. Magone’s file review. Mr. Melsop protested both orders.

4 On July 21, 2025, the B oard reversed t he claim administrator’s order s, which denied the addition of right knee medial meniscal tear to the claim as a compensable condi tion and denied TTD benefits. The Board fo und that a preponderance of the evidence esta blishes that the claimant susta ined a right knee medial meniscal tear in the course of and res ulting from his emplo yment on December 21, 2023. Further, the Board found that Mr. Melsop was temporarily and to tally disabled from December 22, 202 3, to January 11, 202 4, and from April 23, 2024, to August 2, 2024. Whee ling now appeals the B oard’s order. Our standar d of re view is set fort h in W est Virginia Code § 23-5-12a (b) (2022), in part, as follows: The Intermediate Court of Appeals may affir m 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’ C ompensation Board of Revi ew, if the substa ntial rig hts of the petitioner or petitioners have been prejudi ced because the Board of Review’s findings are: (1) In violation of statutory provis ions; (2) In excess of the stat utory authority or juri sdiction of the Board of Review; (3) Made upon unlawf ul procedures; (4) Affected by other e rror of law; (5) Clearly wrong in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary or ca pricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. Syl. Pt. 2, Duff v. Kanawha Cnty. Comm’ n, 250 W. Va. 5 10, 905 S.E.2d 528 (20 24). Wheeling argues that t he Board erred in finding the opinion of Dr. Frank to be more credible than that of Dr. Magone based solely upon Dr. Frank ’ s st atus as Mr. Mel sop’s treating physicia n and Dr. Mag one only conducting a records review, when Dr. Magone ’ s opinion is more consistent with Mr. M elsop’s medical records. Wheeling furt her argues that Dr. Frank fa iled to explain the alleged causal relationship bet ween Mr. Melso p ’ s meniscal tear and his compensable injury, while Dr. Magone ’ s conclusion that Mr. Melsop ’ s tea r is degenerative in nature is con sistent with his medical records. Whe eling also argues that the B oard ’ s award of TTD benefits to Mr. Melsop is based upon its mischaracterization of t he evidence that Mr. Melsop’s work restrictions cannot be met. We disagree. Here, the Boa rd determ ined that “t he opinion o f the claimant’s treating surgeon, Dr. Frank, is reliab le and i s given greater weight than the opini on of Dr. Magone, who only

5 performed a record review and did not exami ne or treat the claiman t. ” The Board note d that in Adkins v. Soun d Mind, Inc., No. 24- ICA -295, 2025 WL 899734 (W. Va. Ct. App. Mar. 24, 2025) (memo randum deci sion), this Court determined t hat a medical provider’s opinion stating a diagn osis should be co mpensable is competent e vidence that the conditi on was caused by a compe nsable injury. The Board also reasoned th at even if the o pinions of Dr. Frank and Dr. Ma gone were of equal weight, th at the resolution must be resolved in favor of Mr. Mel sop. See W. Va. Code § 23 -4- 1g(a). The Board’s reas oning was not c learly wrong. The Board furt her dete rmined that M r. Melso p established that he was temporarily and totally disa bled and granted him TTD benefits fro m December 22, 2023, to January 11, 2024, and from Apr il 23, 2024, to Au gust 2, 2024. The Board noted that while the Employer’s Report of Occupational Injury indicates light work was a vailable to Mr. Melsop, he was neverthele ss restricte d to sedentary w ork by Mr. Tenna nt on De cember 20, 20 23. Wh eeling argues that Mr. Melsop testified that Mr. Tennant gave him an option of light or sedentary work, and that he chose not to work. It also argues that Mr. Melsop is not entitle d to TTD benefit s fro m April 23, 202 4, to August 2, 2024, becaus e that was the period Mr. Melsop was recovering from surg ery for a non-compensable meniscus tear. Mr. Melsop counters that the meniscus tear is compensable, an d that his recovery from surgery should be cove red by TTD benef its. He also contends that eve n though Wheeling indicated on t he form that light work was available, Wheeling su bmitted no evidence th at it offered light duty. The Board was not cl early wrong when it a warded TTD benefits. This decision affirms the Board’s finding that a meniscus tear is compensable. Therefore, Mr. Melso p is entitled to TTD benefits from Apri l 23, 2024, to Aug ust 2, 2024, when he was recovering from knee surgery. Mor eover, the Board was n ot clearly wrong when i t relied on the written restrictions from Mr. Tennant that Mr. Melsop was restricted to sedentary work. Wheeling also did not submit any documentary evidence that it actuall y offered work to Mr. Melsop, and that he declined the offer. Upon review, we concl ude that the Board was not clearly wrong in finding that the preponderance of the medical evide nce establishes that Mr. Melsop sustained a right knee medial meniscal tea r in the course of and resulting from his employment. Further, we find that the Board wa s not clearly wrong in determining that, base d on the medical evidence, Mr. Melsop was te mporarily and totall y disabled from December 22, 2023, to Janua ry 11, 2024, and from April 23, 2024, to August 2, 2024. As the Supreme Court of Appeals of West Virginia has set forth, “[t]he ‘clearly wrong’ and the ‘a rbitrary and capric ious’ standards of re view ar e deferential one s which presu me an agency ’s actions are valid as long as the decision is supported by su bstantial evidence or by a ratio nal basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 4 83 (1996). With this deferential standard of

6 review in mi nd, we cannot conclude that the Board was cl early wrong in revers ing the claim administrator’s order s, which denied the addition of rig ht knee medial meniscal tear to the claim as a co mpensable condition an d denied TTD benefits. Accordingly, we affirm the Board’s July 21, 2 025, order. Affirmed. ISSUED: February 27, 2026 CONCURRED IN B Y: Chief Judge Daniel W. Greear Judge Charles O. L orensen Judge S. Ryan White