TERRY H. KARR, Claimant Below, Petitioner
BIZZACK CONSTRUCTION, LLC, Employer Below, Respondent
Appeal No. 2050962, Claim No. 2014009920
Terry H. Karr, by Patrick K. Maroney, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Bizzack Construction, LLC, by Alyssa A.
Sloan, its attorney, filed a timely response.
issue on appeal is whether a lumbar spine strain should be a
compensable condition of the claim. On September 15, 2014,
the claims administrator denied the request to add a lumbar
spine strain as a compensable condition of the claim. The
Office of Judges affirmed the decision in its November 16,
2015, Order. The Order was affirmed by the Board of Review on
May 3, 2016. The Court has carefully reviewed the records,
written arguments, and appendices contained in the briefs,
and the case is mature for consideration.
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
Karr, an equipment operator for Bizzack Construction, LLC,
injured himself in the course of his employment on September
27, 2013. Mr. Karr was operating a loader when the engine
quit and the loader went over a hill. Mr. Karr was taken to
Logan Regional Medical center for treatment. He sustained an
injury to the head, abrasions, contusions, lacerations,
ecchymosis, tenderness, a neck injury, shoulder pain,
confusion, and decreased range of motion. There was no
mention of a lower back injury. On October 2, 2013, the claim
was held compensable for open wound of the forehead without
mention of complications and sprains of the shoulder and
Stoll, M.D., completed an independent medical evaluation
report on February 24, 2014.Dr. Stoll concluded that Mr. Karr
had not reached maximum medical improvement. He found Mr.
Karr would need an ophthalmology consultation regarding his
right eye medial rectus palsy/weakness and right upper eyelid
ptosis, both of which are related to oculomotor nerve damage.
He noted the mechanism of injury could have damaged a cranial
nerve. In relation to the multiple healed facial and scalp
lacerations, Dr. Stoll recommended plastic and reconstructive
surgical consultations for possible scar revision. He also
found Mr. Karr would need an orthopedic surgical consultation
after an MRI of his right shoulder was completed.
March 8, 2014, Luis Bolano, M.D., completed a diagnosis
update and stated the primary diagnosis was rotator cuff
sprain, strain, and tear. From July 21, 2014, through May 8,
2015, Mr. Karr was treated by Allen Young, M.D. He had been
suffering from depression since the initial work injury and
was treated with medication. Dr. Young felt the diagnosis of
single episode major depression should be added to the claim.
Dr. Young recommended Mr. Karr see a psychiatrist for the
condition. Dr. Young completed a diagnosis update on July 23,
2014, listing this diagnoses as rotator cuff, open wound of
the forehead, neck sprain, exotropia, lumbosacral sprain,
head injury, and diplopia.
Thaxton, M.D., reviewed the records and authored a physician
review report on July 31, 2014, in which she opined that the
diagnoses of lumbar strain and diplopia should not be added
to the claim. She noted back pain was not mentioned in the
early records of September of 2013. She found there was no
temporal relationship between the lumbar sprain and the work
injury. On August 6, 2014, the claims administrator denied
the addition of lumbar spine strain to the claim. The claims
administrator issued a September 15, 2014, decision denying
the request to add a lumbar spine strain as a compensable
condition of the claim.
11, 2015, Mr. Karr was deposed. He stated he was working with
an endloader on September 27, 2013, at a job site on the side
of a mountain. Mr. Karr related that everything was working
fine until he went to dump a bucket of gravel. At that time,
the engine quit, and he lost all control of the machine. The
machine slipped backwards and fell down a 200 foot drop-off.
Mr. Karr asserted that the impact injured his lower back. Mr.
Karr explained that he did not originally report pain in his
lower back to medical personnel because he thought it would
resolve itself. However, over time it became worse.
November 16, 2015, the Office of Judges determined that Mr.
Karr failed to establish that his lumbar strain was related
to the work injury. The Office of Judges found that Mr. Karr
did not have any complaints related to the lower back
directly after his compensable injury. Nearly one year after
the injury, Mr. Karr began complaining of lower back pain.
The Office of Judges concluded that there was too great of a
temporal difference between the injury and the symptoms to
justify a causal connection. The Board of Review adopted the
findings of the Office of Judges and affirmed its Order on
May 3, 2016.
review, we agree with the decisions of the Office of Judges
and Board of Review, because their decisions are supported by
the evidence of record. The injury occurred on September 27,
2013, yet Mr. Karr did not complain of lower back symptoms
until nearly one year after the injury. Because of the
temporal delay between the injury and the lower back
symptoms, it was appropriate for the Office of Judges and
Board of Review to conclude they were not causally related.
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. Workman Justice Menis ...