Appeal No. 2051505) (Claim No. 2016011583)
West Virginia Code § 23-4-1(a) (2008) a person seeking
workers' compensation must show that an injury occurred
in the course of and as a result of employment. Mr. Whitman,
a former employee for VFP Fire Systems Inc., allegedly
injured his lower back at work. The evidence introduced
during the litigation showed that Mr. Whitman had previously
suffered from lower back issues, and he did not file a claim
immediately after the alleged injury. Instead, he worked
full-time and even overtime. Mr. Whitman was uncertain as to
when the injury occurred. An age of the injury report stated
that Mr. Whitman's current symptoms were caused by
preexisting degenerative disc disease. Because Mr. Whitman
did not meet his burden of proof to show that an injury
occurred, it was proper for his claim to be denied. Because
Mr. Whitman could not show that an injury occurred, a
neurological consultation for the same was also properly
Whitman sought medical treatment with Joseph Marinacci, D.C.,
at Teays Valley Chiropractic, LLC, for issues with his lower
back on September 2, 2015. Mr. Whitman stated to Dr.
Marinacci that he was tightening bolts on a fire water line
when he experienced lower back pain. It was noted that Mr.
Whitman had regressed and exacerbated his lower back
condition since his last visit. From September 2, 2015,
through November 2, 2015, Mr. Whitman was treated at Teays
Valley Chiropractic, LLC, a number of times with pain in his
lower back. A lumbar spine x-ray revealed minimal
levoscoliosis of the lumbar spine. There was mild lipping of
the vertebral bodies and sclerosis of the facet joints. There
was no acute fracture seen. An MRI of the lumbar spine
revealed L4-L5 grade 1 posterior listhesis, diffuse disc
osteophyte complex, and superimposed left paracentral to left
foraminal disc protrusion with eight millimeters of inferior
migration of the protrusion in the left paracentral zone. The
transiting left L5 nerve was likely impinged by the disc
protrusion. There was moderate bilateral foraminal stenosis,
multilevel foraminal stenosis, mild to moderate spinal canal
stenosis at L2-L3, and a component of congenitally short
pedicles, which likely contributed to the narrowing.
October 23, 2015, Mr. Whitman filled out a report of injury
stating that he was tightening up bolts on a flange when he
experienced lower back pain on September 28, 2015. Dr.
Marinacci signed the application indicating that Mr. Whitman
first sought treatment on September 2, 2015. On November 9,
2015, Dr. Marinacci requested authorization for a
neurosurgical consultation as he believed Mr. Whitman was
regressing and the treatment he was providing was only giving
momentary relief. The claims administrator rejected the claim
and denied a request for medical treatment. On November 23,
2015, Mr. Whitman underwent a left-sided L4-5 hemilaminectomy
and microdiscectomy. A month later, Mr. Whitman was seen by
Dwight Saulle, M.D., at St. Mary's Neurosurgery, LLC, for
a follow-up. Dr. Saulle stated that while Mr. Whitman does
have degenerative changes in his spine, he believed the acute
disc herniation was related to his work injury.
Whitman testified in a deposition and stated that a coworker
was holding back the bolts and he was tightening them when he
felt a pop in his back. Mr. Whitman stated that he told his
superintendent, Paul Wanger, that he hurt his back and Mr.
Wanger gave him Advil. Mr. Whitman sought treatment with Dr.
Marinacci on September 2, 2015. He testified that he had seen
Dr. Marinacci a year to a year and a half before for back
pain after stepping out of a truck at a job site. After his
injury, he saw Dr. Marinacci three days a week until he had
surgery on November 23, 2015. Mr. Whitman stated that Mr.
Wanger knew he was hurt because he got him the Advil and knew
that he was seeing a chiropractor. He also stated that he
told his coworker, Travis Samples, that he hurt his back. He
stated that he waited to file his claim because he was
unaware of the severity of his injury until surgery was
recommended. Mr. Whitman testified that he last worked for
VFP Fire Systems Inc. on September 11, 2015. However, he
worked counter sales for Bridgeport Equipment from September
15, 2015, through approximately September 24, 2015, until his
pain forced him to quit. He testified that he has not worked
anywhere since. On cross-examination, he testified that he
was still working for VFP Fire Systems Inc., when he applied
for the job at Bridgeport Equipment. He stated that he was
trying to find a job with less hours. When asked if the date
of injury noted on the application for benefits of September
28, 2015, was correct. Mr. Whitman testified that he had
treated with Dr. Marinacci about a year to a year and a half
earlier, and he had treated with a chiropractor when he was
about twenty-six years old, but he could not remember the
doctor's name. Mr. Whitman stated that, aside from normal
stiffness, he had no problems with his back prior to
September 28, 2015. On re-direct, Mr. Whitman testified that
he mistakenly put September 28, 2015, on the claim form and
that he was actually injured a few days before he saw Dr.
Marinacci on September 2, 2015.
note to his attorney, Mr. Whitman stated that the date he put
down on the claim form, September 28, 2015, was incorrect. He
stated that the correct date of injury was August 28, 2015.
Luchs, M.D., opined in his age of the injury report, that all
of the findings on the images were chronic in nature. Vanessa
Peterson, a safety coordinator for VFP Fire Systems Inc.,
stated that Mr. Whitman's wage report showed that he
worked sixty-eight hours during the week ending September 4,
2015, and forty hours on the week ending on September 11,
2015. She further stated that she had personal knowledge that
Mr. Whitman voluntarily terminated his employment on
September 11, 2015, to begin work with Bridgeport Equipment.
Fire Systems Inc., by Jeffery B. Carder and Jeffery B.
Brannon, its attorneys, argued before this Court that the
evidence showed that his symptoms were caused by a
pre-existing condition any not an acute injury. Mr. Whitman,
by Patrick K. Maroney, his attorney, argued that any
confusion over the date of injury was a clerical error and
the evidence shows that his symptoms were due to an acute
injury that occurred at work.
Office of Judges determined that Mr. Whitman failed to meet
his burden of proof to show that a compensable injury
occurred. The Office of Judges found that there were several
discrepancies in the dates of injury, and Mr. Whitman failed
to file his claim for two months after the injury. During
those two months, Mr. Whitman worked full-time and
voluntarily left his job to pursue employment with another
employer. In addition, the Office of Judges found that Mr.
Whitman suffers from pre-existing back issues for which he
had recently received treatment. The Office of Judges
determined that since no compensable injury occurred, it was
proper to deny Mr. Whitman's request for a neurosurgical
consultation. The Board of Review adopted the findings of the
Office of Judges and affirmed its Order. After review, we
agree with the findings of the Office of Judges as affirmed
by the Board of Review.
the facts and legal arguments are adequately presented and
the decisional process would not be significantly aided by
oral argument, a memorandum decision is appropriate under
Rule 21 of the Rules of Appellate Procedure. 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 affirmed.
CONCURRED IN BY: Chief Justice Allen H. Loughry II Justice
Robin J. Davis Justice Margaret L. Workman Justice Menis ...