Appeal No. 2051414) (Claim No. 2015000211)
Fortner Logging, LLC, by T. Jonathan Cook its attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. Miranda Wykle, widow of Randy
D. Wykle (deceased), by Pamela A. Lambert her attorney, filed
a timely response.
issue on appeal is whether dependent's benefits should be
granted in this claim. This appeal originated from the July
22, 2014, claims administrator's decision denying the
request for dependent's benefits. In its June 30, 2016,
Order, the Workers' Compensation Office of Judges
reversed the claims administrator's decision and granted
dependent's benefits. The Board of Review's Final
Order dated December 16, 2016, affirmed the Order of the
Office of Judges. 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
Wykle, widow of Randy D. Wykle, filed an application for
dependent's benefits after Mr. Wykle was killed in an
accident at his place of employment. Mr. Wykle worked as a
heavy equipment operator and logger. On the afternoon of June
13, 2014, Mr. Wykle was struck by a felled tree and suffered
a blunt force injury to the thorax and abdomen. This trauma
caused complex liver and right kidney lacerations, which
further caused exsanguination, the severe blood loss of an
organ, and hemoperitoneum, an accumulation of blood in the
space between the inner lining of the abdominal wall and the
internal abdominal organs. On July 22, 2014, the claims
administrator denied Mrs. Wykle's application for
dependent's benefits pending an autopsy report.
autopsy report dated January 21, 2015, indicated that Mr.
Wykle died from blunt force injury to the head, thorax,
abdomen, and lower extremities. Mr. Wykle suffered several
contusions, fractured ribs, and a massive complex laceration
to the liver and kidney. The toxicology report detected no
alcohol in Mr. Wykle's system. However, supratherapeutic
concentrations of Hydrocodone, therapeutic concentrations of
Alprazolam and Diazepam, and the presence of
7-aminoclonazepam were all found present in his bloodstream.
According to the report, Mr. Wykle had no active
prescriptions for these medications, although it was
mentioned that he did have a recent prescription access to
Hydrocodone. The autopsy concluded that Mr. Wykle's death
was consistent with multiple traumatic injuries sustained as
a heavy equipment operator struck by a tree limb.
Wykle testified in a deposition before the Office of Judges
on January 8, 2016, that she had been married to Mr. Wykle at
the time of his death. Mrs. Wykle testified that she had
filed a dependent's claim for benefits after Mr. Wykle
was killed in an accident on June 13, 2014. Lastly, Mrs.
Wykle denied any knowledge that Mr. Wykle was taking
prescription medications without a prescription and she
denied that he abused narcotics, antidepressants, and/or
request of the claims administrator, George Nichols, M.D.,
performed a record review which included the autopsy report,
the Report of Occupational Injury, the death certificate, the
application for benefits, and Mrs. Wykle's deposition.
Dr. Nichols wrote that Mr. Wykle sustained a lethal blunt
force injury producing a massive internal hemorrhage while at
work and that a post-mortem examination indicated that he
died due to the lethal trauma. Dr. Nichols noted that Mr.
Wykle had traces of prescription medications in his blood and
that he did not have an active prescription for them. He
wrote that Hydrocodone is a synthetic opioid and that the
other medications are benzodiazepines, a type of
tranquilizer. These medications are central nervous system
depressants and their effects in the brain are addictive
and/or synergistic. Dr. Nichols opined that Mr. Wykle was
chemically intoxicated and impaired at the time of his death.
30, 2016, the Office of Judges reversed the claims
administrator's decision and granted Mrs. Wykle
dependent's benefits. The Office of Judges found that an
employee's application for benefits is governed by
statutory, regulatory, and common law as it existed on the
date of injury. State ex rel. ACF Industries, Inc. v.
Vieweg, 204 W.Va. 525, 514 S.E.2d 176 (1999). At the
time of Mr. Wykle's death, West Virginia Code §
23-4-2(a) (2005) provided that notwithstanding anything
contained in this chapter, no employee or dependent of any
employee is entitled to receive any workers' compensation
benefits on account of any personal injury to or death to any
employee caused by a self-inflicted injury or the
intoxication of the employee. While this law has subsequently
been amended, the Office of Judges determined that in light
of ACF Industries, it would apply the statute as
written at the time of Mr. Wykle's death. This meant that
in order to deny Mrs. Wykle's claim for dependent's
benefits, it had to be proven that Mr. Wykle was intoxicated
at the time of his death and that his intoxication caused the
injury leading to his death.
Office of Judges determined that the employer submitted
sufficient evidence to prove that Mr. Wykle was intoxicated
at the time of his death. The autopsy contained a toxicology
report that indicated that Mr. Wykle had supratherapeutic and
therapeutic doses of prescription medications in his system
without an active prescription. Dr. Nichols also determined
that Mr. Wykle was chemically intoxicated at the time of his
death. But the Office of Judges found that the employer
failed to show how Mr. Wykle's intoxication caused his
injury or death. No evidence was submitted describing how the
injury occurred or describing Mr. Wykle's actions or
inactions directly before the injury. Critical evidence had
not been gathered or submitted regarding this information.
West Virginia Code § 23-4-2(a) required proof of
intoxication and causation in order to deny dependent's
benefits. The Office of Judges found that absent evidence of
causation, Mrs. Wykle had proven by a preponderance of the
evidence that Mr. Wykle's death was caused by an injury
received in the course of and as a result of his employment.
The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its
Order on December 16, 2016.
review, we agree with the findings of fact and conclusions of
law of the Office of Judges as affirmed by the Board of
Review. The governing statute in place at the time of Mr.
Wykle's death requires proof of intoxication of the
employee at death and proof that said intoxication caused the
injury or death. The autopsy report and Dr. Nichols's
report show that Mr. Wykle was intoxicated. But the employer
submitted no evidence regarding how the injury occurred or
how Mr. Wykle's intoxication caused his own death. As
Mrs. Wykle has met her burden of proof, she is entitled to
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 ...