Appeal No. 2051369 (Claim No. 2015034124)
URS Energy and Construction, by Jeffrey B. Brannon, its
attorney, appeals the decision of the West Virginia
Workers' Compensation Board of Review.
issue on appeal is whether the injuries suffered by Mr.
McCartney on February 2, 2015, are compensable. On August 20,
2015, the claims administrator issued an Order rejecting the
claim and determined that Mr. McCartney did not suffer a
compensable work injury. On May 27, 2016, the Workers'
Compensation Office of Judges affirmed the claims
administrator's rejection of the claim on the basis that
it was not timely filed and on the basis that the claimant
did not establish that he sustained a work-related injury on
February 2, 2015. This appeal arises from the Board of
Review's Final Order dated December 26, 2016, in which
the Board reversed and vacated the May 27, 2016, Order of the
Office of Judges. The Board found that the claim was timely
filed and remanded the case to the Office of Judges with
instructions to consider additional evidence and issue a
ruling on the merits of the compensability claim. 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
McCartney alleges that he suffered injuries while working for
URS Energy and Construction, when he slipped and fell on
untreated ice on February 2, 2015. At the time of his injury,
he sought treatment at Preston Healthcare Services. Prior to
his injury, Mr. McCartney underwent x-rays on his right wrist
on February 1, 2015, which showed no acute bony
McCartney was seen by Nick Zervos, M.D., on April 14, 2015.
In his office note, Dr. Zervos referenced an injury to Mr.
McCartney's right shoulder and wrist when he fell on
black ice in February. He also noted that Mr. McCartney had a
recent MRI of both areas and x-rays showed a right
scapholunate ligament rupture and a right shoulder spinatus
partial thickness tear with posterior labral cyst off the
labral tear. Dr. Zervos conducted shoulder surgery on April
29, 2015, the claims administrator issued a Deferred
Compensability Decision and explained, "After a review
of your accident report we cannot determine your claim to be
compensable until receipt of full medical records from the
treating physicians and facilities are obtained. Once
evidence is submitted a review for compensability can be
made. If no evidence is received within 60 days your claim
will be denied." In response to the claims
administrator's decision, Mr. McCartney returned a signed
medical release authorization form.
Order dated August 20, 2015, the claims administrator denied
Mr. McCartney's application for benefits and determined
there was no evidence that the alleged injuries had been
sustained in the course of and resulting from his employment.
Mr. McCartney protested the claims administrator's
27, 2016, the Office of Judges affirmed the claims
administrator's Order, which denied the claim for two
reasons. The Office of Judges found that Mr. McCartney failed
to establish that he sustained an injury in the course of and
as a result from his employment. The Office of Judges also
concluded that the claim was barred by the applicable statute
of limitations because an Employees and Physicians Report
Form (WC-1) had not been filed by Mr. McCartney. The Office
of Judges concluded that the evidence of record does not
sufficiently show that Mr. McCartney's medical conditions
originated from an injury that occurred on February 2, 2015.
Mr. McCartney appealed to the Board of Review.
letter dated September 21, 2016, the Board of Review notified
Mr. McCartney that the Board was unable to accept new
evidence except in support of a Motion to Remand. Mr.
McCartney had submitted a September 15, 2016, report from
Robin Goodwin, FNP-BC, of Preston Healthcare Services.
Because the Board can only accept new evidence in support of
a motion to remand, the Board considered Mr. McCartney's
new evidence as a Motion to Remand the claim to the Office of
Judges for the submission of additional evidence.
December 22, 2016, the Board of Review reversed the Decision
of the Office of Judges and found that Mr. McCartney's
claim was timely filed. The Board remanded the claim with
instructions to consider additional evidence and issue a
ruling on the merits of the compensability of the claim. The
Office of Judges was specifically instructed to issue a new
time frame order to allow additional evidence and consider
the September 15, 2016, report from Preston Healthcare
September 16, 2016, report, Ms. Goodwin confirmed that Mr.
McCartney was seen by Preston Healthcare Services in February
of 2015, for an injury that occurred at work. Ms. Goodwin
explained that the provider that saw Mr. McCartney for his
initial visit did not document that it was a workers'
compensation claim. The report documents that Mr. McCartney
had slipped and fallen on company property on ice while
carrying an arm load of supplies on February 2, 2015. Given
the submission of Mr. McCartney's new evidence, which was
accepted by the Board of Review in consideration of a motion
to remand, we agree with the decision of the Board of Review.
From the beginning of the claim, Mr. McCartney has asserted
that he suffered an injury on a work-related basis on
February 2, 2015, and sought medical treatment for his
injuries. The Board of Review did not err in remanding the
claim for a full and complete development of the facts in
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 ...