Appeal No. 2050951 (Claim No. 2015019613)
Greenbrier Hotel Corporation, by James Heslep, its attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review.
appeal arises from the Board of Review's Final Order
dated April 29, 2016, in which the Board affirmed a November
20, 2015, Order of the Workers' Compensation Office of
Judges. In its Order, the Office of Judges reversed the
claims administrator's February 4, 2015, decision
rejecting Mr. Gutierrez's claim for workers'
compensation benefits, and the Office of Judges held the
claim compensable for a right foot injury. The Court has
carefully reviewed the records, written arguments, and
appendices contained in the briefs, and the case is mature
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
Gutierrez alleges that he sustained a right foot injury while
walking down a set of steps upon arrival at his workplace on
January 19, 2015. On the alleged date of injury, an incident
report was completed. The incident report indicates that Mr.
Gutierrez experienced sharp pain in in his right foot while
walking down a set of steps. Additionally, an injury
investigation report was completed by Crystal Wills, one of
Mr. Gutierrez's supervisors. Ms. Wills indicated that
Manuel Espino, one of Mr. Gutierrez's coworkers, reported
observing Mr. Gutierrez limping upon arrival at his
end of the workday on the alleged date of injury, Mr.
Gutierrez sought treatment with Tamra Stall, M.D., who noted
that Mr. Gutierrez reported injuring his right foot while
walking down a set of steps. Dr. Stall recommended that Mr.
Gutierrez undergo a right foot MRI. Additionally, Dr. Stall
completed a Report of Injury in which she indicated that Mr.
Gutierrez sustained an acute occupational injury to his right
foot while walking down a set of steps. On January 22, 2015,
Mr. Gutierrez underwent a right foot MRI which revealed a
small plantar fascial tear. Mr. Gutierrez sought treatment
with Steven Vess, D.O., on January 27, 2015. Dr. Vess also
noted that Mr. Gutierrez reported injuring his right foot
while walking down a set of steps, and diagnosed Mr.
Gutierrez with plantar fasciitis of the right foot.
February 4, 2015, James Dauphin, M.D., performed a records
review and recommended rejecting Mr. Gutierrez's claim
for workers compensation benefits. After reviewing the
incident report in which it was reported that Mr. Espino
observed Mr. Gutierrez limping prior to his arrival at his
workplace, Dr. Dauphin concluded that Mr. Gutierrez was
injured prior to his arrival at work. The claims
administrator rejected Mr. Gutierrez's claim based upon
Dr. Dauphin's records review on February 4, 2015.
Gutierrez was deposed on July 29, 2015. He testified that he
did not experience any pain in his right foot prior to his
arrival at work on January 19, 2015. Mr. Gutierrez further
testified that he began to experience intense right foot pain
while walking down a set of steps upon his arrival at his
workplace on the morning of January 19, 2015. Finally, he
testified that Mr. Espino was walking with him at the time of
the alleged injury, and further testified that Mr. Espino
assisted him following the alleged injury.
Order reversing the February 4, 2015, claims
administrator's decision, the Office of Judges held that
the evidence of record demonstrates that Mr. Gutierrez
sustained a compensable right foot injury on January 19,
2015. The Board of Review affirmed the reasoning and
conclusions of the Office of Judges in its decision dated
April 29, 2016. On appeal, Greenbrier Hotel Corporation
asserts that Mr. Gutierrez has failed to demonstrate that he
sustained an injury in the course of and resulting from his
Office of Judges noted that diagnostic imaging revealed a
plantar fascial tear of the right foot. Further, the Office
of Judges noted that Mr. Gutierrez's treating physician,
Dr. Stall, indicated that Mr. Gutierrez sustained an
occupationally-related injury. The Office of Judges also
found that Mr. Gutierrez's testimony that he injured his
right foot while entering his workplace is credible.
Additionally, the Office of Judges found that the report of
Dr. Dauphin is entitled to less evidentiary weight given that
the conclusions expressed therein amount to nothing more than
tacit acceptance of the incident report completed by Ms.
Wills. In that regard, the Office of Judges found that Ms.
Wills's incident report relies primarily upon the
statements made to her by Mr. Espino. The Office of Judges
then noted that a direct statement from Mr. Espino is not
contained in the evidentiary record. Finally, the Office of
Judges concluded that the evidence of record fails to
demonstrate that Mr. Gutierrez's right foot injury can be
attributed to a non-work-related occurrence. We agree with
the reasoning and conclusions of the Office of Judges, as
affirmed by the Board of Review.
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
CONCURRED IN BY: Chief Justice Allen H. Loughry II Justice
Robin J. Davis Justice Margaret L. ...