TERRY R. HAGER, Claimant Below, Petitioner
SEARS ROEBUCK AND COMPANY, Employer Below, Respondent
Appeal No. 2051495 (Claim No. 2015016827)
Terry R. Hager, by Reginald Henry his attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Sears Roebuck and Company, by Jeffrey Carder and
Jeffrey Brannon its attorneys, filed a timely response.
issue presented in the instant appeal is the rejection of Mr.
Hager's application for workers' compensation
benefits. On February 12, 2015, the claims administrator
rejected the claim. The Office of Judges affirmed the claims
administrator's decision on August 8, 2016. This appeal
arises from the Board of Review's Final Order dated
January 20, 2017, in which the Board 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
Hager alleges that he injured his left shoulder and thoracic
spine in the course of and resulting from his employment with
Sears Roebuck and Company. On December 15, 2014, an
investigation report was prepared by Sears and Roebuck
Company. The report indicates that Mr. Hager reported
sustaining an injury to his thoracic spine and left shoulder
while pulling merchandise on May 1, 2014. Also on December
15, 2014, a handwritten injury report was completed in which
it appears that Mr. Hager alleges injuring his thoracic spine
and left shoulder while lifting a washing machine. A specific
date of injury was not listed, but the report indicates that
the injury was reported in January of 2014.
January 9, 2015, Mr. Hager sought treatment with Jack Steel,
M.D. Dr. Steel's treatment note indicates that Mr. Hager
reported experiencing left shoulder pain following repeated
lifting on May 1, 2014. Mr. Hager and Dr. Steel completed a
Report of Injury in which Mr. Hager indicated that he injured
his left shoulder and thoracic spine on May 1, 2014, while
lifting heavy objects. In the physician's portion of the
Report of Injury, Dr. Steel indicated that Mr. Hager
developed an occupational disease of the left shoulder and
listed his diagnoses as subacromial bursitis, impingement
syndrome, and a rotator cuff sprain.
January 27, 2015, Mr. Hager sought treatment in the emergency
department of St. Mary's Medical Center for chronic back
and shoulder pain. The treatment notes indicate that Mr.
Hager requested that a healthcare provider complete a Report
of Injury for the May 1, 2014, injury and order an MRI. Mr.
Hager was informed that a Report of Injury could not be
completed because there was no evidence of an acute injury.
However, he was referred for further evaluation.
Additionally, x-rays were performed which revealed multilevel
degenerative changes in the thoracic spine.
February 3, 2015, Mr. Hager participated in a recorded
interview with a representative of the claims administrator.
Mr. Hager stated that he injured his left shoulder and back
on May 1, 2014, when he was struck by falling merchandise
while unloading a truck. The claims administrator rejected
Mr. Hager's claim for workers' compensation benefits
on February 12, 2015.
January 14, 2016, Mr. Hager testified in a hearing before the
Office of Judges. He testified that he injured his back and
left shoulder while lifting a washing machine on May 1, 2014.
When asked to explain his prior recorded statement in which
he indicated that he was injured when he was struck by
falling merchandise, Mr. Hager indicated that he was
referencing a prior workers' compensation claim in which
his right shoulder was injured by falling merchandise.
However, Mr. Hager was unable to provide a date of injury for
the alleged right shoulder injury.
January 18, 2016, Dr. Steel was deposed. He testified that he
initially treated Mr. Hager for acromion bursitis,
impingement syndrome, and a rotator cuff strain of the right
shoulder in 2008. He then testified that on June 25, 2014,
Mr. Hager returned for treatment amid complaints of
progressively worsening right shoulder pain. Dr. Steel
indicated that on June 25, 2014, he examined Mr. Hager's
left shoulder for the purpose of comparison with the right
shoulder. He then testified that the June 25, 2014,
examination of Mr. Hager's left shoulder was negative.
Further, Dr. Steel testified that Mr. Hager did not mention
sustaining a left shoulder injury until January 9, 2015.
Finally, Dr. Steel stated that Mr. Hager's current left
shoulder complaints are similar to the ongoing right shoulder
Lee Bailey, M.D., performed an independent medical evaluation
on March 28, 2016. She noted that Mr. Hager reported injuring
his thoracic spine while moving a washing machine on May 1,
2014. However, Mr. Hager reported that his left shoulder
symptoms gradually developed over time. Dr. Bailey then noted
that Mr. Hager's medical records document several
mechanisms of injury for the thoracic spine and left
shoulder. She also reviewed Mr. Hager's job description
and opined that she rejects his allegation that his left
shoulder complaints arose from cumulative trauma. Dr. Bailey
further opined that Mr. Hager's current complaints are
attributable to personal medical conditions and are not
work-related. Specifically, she noted that Mr. Hager has been
diagnosed with several age-related conditions including
impingement syndrome of both shoulders, bursitis of both
shoulders, and degenerative changes in the thoracic spine.
Order affirming the February 12, 2015, claims
administrator's decision, the Office of Judges held that
Mr. Hager failed to demonstrate that he sustained a
compensable injury in the course of and resulting from his
employment. Additionally, the Office of Judges found that Mr.
Hager's application for workers' compensation
benefits was untimely filed. The Board of Review affirmed the
reasoning and conclusions of the Office of Judges in its
decision dated January 20, 2017. On appeal, Mr. Hager asserts
that the evidence of record clearly demonstrates that he
sustained compensable injuries to his left shoulder and
thoracic spine in the course of and resulting from his
Office of Judges found that the evidence of record contains
conflicting accounts regarding the circumstances of the
alleged left shoulder and thoracic spine injuries.
Specifically, the Office of Judges noted that the reports
dated December 15, 2014, contain conflicting dates of injury.
Additionally, the Office of Judges noted that in his February
3, 2015, recorded interview, Mr. Hager alleges that he was
injured by falling merchandise while unloading a truck, while
in the remainder of the record he maintains that he was
injured while lifting a washing machine. The Office of Judges
further noted that Dr. Steel testified that when he examined
Mr. Hager approximately six weeks after the alleged date of
injury, Mr. Hager did not express any left shoulder
complaints and his left shoulder examination was
the Office of Judges determined that Mr. Hager's claim
for workers' compensation benefits was untimely filed.
The Office of Judges looked to West Virginia Code §
23-4-15(a) (2010), which provides that claims for
workers' compensation benefits must be filed within six
months of the date of injury. The Office of Judges found that
Mr. Hager initiated a claim for workers' compensation
benefits on December 30, 2014, which is more than six months
after the alleged May 1, 2014, injury and, therefore, Mr.
Hager's claim was filed ...