Appeal No. 2051510) (Claim No. 2016026235)
Michael McGee, by Robert L. Stultz, his attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Hendershot Plumbing, by Patricia E. McEnteer, its
attorney, filed a timely response.
issue on appeal is whether the claim should be held
compensable. This appeal originated from the May 19, 2016,
claims administrator's decision rejecting the claim. In
its August 22, 2016, Order, the Workers' Compensation
Office of Judges affirmed the decision. The Board of
Review's Final Order dated February 17, 2017, 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
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
McGee, a service technician for Hendershot Plumbing, alleges
that he was injured in the course of his employment on
February 18, 2016, when he was attempting to remove a hot
water heater from a recently flooded basement. Mr. McGee
alleges that he slipped in mud and fell backwards, hitting
his back on a concrete wall. Mr. McGee finished his shift and
worked the next day as well, only reporting to the emergency
room on February 20, 2016, after falling in the shower and
emergency room report noted that Mr. McGee had an extensive
medical history including sciatica, hypertension,
musculoskeletal disorders, chronic back pain, neck pain with
a herniated disc, and two bulging discs. Medical records show
that Mr. McGee injured his low back on December 6, 2014, when
he stood from bent position and twisted his back. Mr. McGee
felt a popping sensation and experienced immediate pain. He
remained off work for three months and was eventually
diagnosed with a variety of conditions including chronic low
back pain with left lower extremity radicular pain, lumbar
disc degeneration, lumbar spondylosis, and myofascial pain.
An MRI also showed left foraminal stenosis with L4-5
reporting his prior medical history, Mr. McGee underwent an
x-ray of the lumbar spine which revealed no fracture.
Bilateral hip x-rays and a knee x-ray reported no abnormality
was detected. Mr. McGee was diagnosed with lumbar strain,
left hip pain, and left knee abrasion. Mr. McGee's pain
worsened and on March 21, 2016, he sought treatment from
Victorico Singzon, M.D., for complaints of lower back pain.
Dr. Singzon diagnosed lumbar back pain and
spondyloarthropathy. Mr. McGee was sent for a lumbar MRI on
March 29, 2016, which noted small to moderate left lateral -
far lateral disc herniation with left neural foraminal
encroachment at L4-5 and compression of the L4 nerve root.
There was no spinal stenosis. A minimal disc bulge was noted
April 5, 2016, Mr. McGee sought treatment from Bill
Underwood, M.D., the doctor who treated him following his
injury in 2014. Mr. Underwood noted that following the
December 6, 2014, injury, Mr. McGee did not follow-up with
his office or undergo the recommended treatment. Regarding
the recent alleged injury, Dr. Underwood's assessment was
lumbar disc herniation, nerve root compression, and
lumbosacral radiculopathy at L4. On April 10, 2016, Mr. McGee
presented at the emergency room with complaints of
incontinence and increasing back pain with numbness and
tingling in the lower extremities. Mr. McGee subsequently
completed a Report of Occupational Injury. Under the
physician's section, the hospital listed the body parts
injured as the lumbar spine, left hip, and knee. The claims
administrator rejected the claim on May 19, 2016, stating
that Mr. McGee did not seek medical treatment until he
sustained a non-work-related injury when he slipped and fell
in the shower. The claims administrator also noted that
medical records documented pre-existing conditions of chronic
back and hip pain.
21, 2016, Mr. McGee testified in a deposition that on
February 18, 2016, he was working in the basement of a home
that had recently flooded. The floors were covered with mud
and on attempting to remove a hot water heater, Mr. McGee
slipped and fell backwards into a concrete wall. Mr. McGee
felt instant pain in his back and leg but completed the job
and reported the injury to his boss that evening upon
returning to the shop. Mr. McGee testified that on February
20, 2016, his leg gave out while he was in the shower and he
fell, hitting his knee. At that time, Mr. McGee presented at
the emergency room and explained that he had injured himself
at work two days prior. Mr. McGee addressed his prior injury
and testified that in 2014, he popped his hip out of place.
He explained that the nature of that injury was his hip only,
not his back. Mr. McGee testified that he did not undergo
treatment or take pain medications between that injury and
February 18, 2016. During subsequent treatment, Mr. McGee was
diagnosed with a disc herniation and his only option was to
undergo a lumbar discectomy, which was performed on June 9,
2016. On cross examination, Mr. McGee admitted that he had a
history of chronic back pain. He stated that he did not file
a report until April of 2016 because he was unaware that one
14, 2016, Mark Hendershot, the owner of Hendershot Plumbing,
testified in a deposition that on February 18, 2016, he and
Mr. McGee were to work in the basement of a home that had
flooded the prior week. They were to replace the hot water
heater and repair a furnace. The wrong hot water heater had
been delivered to the work site, and Mr. Hendershot testified
that he sent Mr. McGee on to the home to begin disconnecting
the broken hot water heater while he, Mr. Hendershot,
returned the incorrect heater. When he arrived, Mr.
Hendershot noted that Mr. McGee was in the basement and had
already disconnected the broken heater and moved it across
the room. Mr. Hendershot testified that he assisted Mr. McGee
in taking the hot water heater out of the basement and up to
the van. Mr. Hendershot stated that Mr. McGee did not report
an injury nor did he appear to be in any discomfort when the
two of them removed the old hot water heater or installed the
new one. Mr. McGee did not claim any injury until the
following week. Mr. Hendershot stated that Mr. McGee
continued with his regular job duties until April. Mr.
Hendershot testified that Mr. McGee had worked for him for
three to four years and had always been a good employee.
expedited hearing took place on July 26, 2016. Mr.
McGee's counsel, Mr. Stultz, stated that the injury
occurred while trying to remove a hot water heater from a
basement. Mr. Stultz argued that Mr. McGee was working alone
when it happened and that sufficient medical evidence existed
to support holding the claim compensable. Counsel for the
employer, Ms. McEnteer, stated that Mr. Hendershot's
testimony was contrary to Mr. McGee's version of the
events and called into question his credibility. Ms. McEnteer
argued that no compensable injury occurred on February 18,
Order dated August 22, 2016, the Office of Judges affirmed
the claims administrator's decision rejecting the claim.
The Office of Judges relied heavily on the employer's
closing argument, which stated that Mr. McGee's testimony
was in direct contrast to that of Mr. Hendershot. Mr. McGee
asserted that he was alone while he moved the hot water
heater while Mr. Hendershot testified that he helped Mr.
McGee move the heater. Mr. Hendershot further stated that he
did not learn of the alleged injury until the following week.
It was the employer's position that Mr. Hendershot's
testimony completely undermined the credibility of Mr. McGee.
Also noted were the medical records which reflected
significant medical history including musculoskeletal
disorder, chronic back pain, and two bulging discs.
records revealed that Mr. McGee sustained an injury on
December 6, 2014. Mr. McGee complained of severe low back
pain that radiated into his left lower extremity. The
diagnosis at that time was chronic low back pain with left
lower extremity radicular pain, lumbar disc degeneration,
lumbar spondylosis, and myofascial pain. The employer argued
that the preponderance of the evidence established that Mr.
McGee did not sustain a work-related injury. After reviewing
the employer's closing argument, the Office of Judges
concluded that a preponderance of the evidence established
that no compensable injury occurred on February 18, 2016. The
testimony of Mr. Hendershot was found to be persuasive and
directly contradictory to Mr. McGee's version of events.
Accordingly, the Office of Judges found that the claim is not
compensable. The Board of Review adopted the findings of fact
and conclusions of law of the Office of Judges and affirmed
its Order on February 17, 2017.
review, we agree with the decision of the Office of Judges as
affirmed by the Board of Review. Mr. McGee has a significant
history of low back pain dating back to 2014. Notably, many
of the symptoms reported then are the ones he suffers from
now. Further, Mr. Hendershot's testimony has been found
credible and is in contradiction ...