Appeal No. 2051627) (Claim No. 2015024644)
Kimberly Backus, by Gregory S. Prudich, her attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Starbucks Corporation, by James S. Maloney,
its attorney, filed a timely response.
issue on appeal is the compensability of the claim. The
claims administrator rejected the claim on April 13, 2015. By
its Order dated October 12, 2016, the Office of Judges
affirmed the claims administrator's decision. The Board
of Review affirmed the Office of Judges' Order on March
20, 2017. 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
Backus, a shift manager for Starbucks Corporation, alleges
that she sustained a low back injury in mid-November to early
December of 2014. On November 22, 2014, Ms. Backus presented
to Princeton Community Hospital and was treated for backache,
sacroiliac sprain, cumulative trauma from repetitive motion,
and tenosynovitis of the foot and ankle. The triage
assessment notes indicated that Ms. Backus reported her back
pain developed after lifting at work a few days prior. The
emergency room records also indicated that Ms. Backus
reported injuring her lower back a few days prior while at
work. Jill Farley, R.N., noted that Ms. Backus attributed her
pain to heavy lifting at work. Ms. Backus completed an
application for benefits and indicated that she sustained a
work-related injury to her back and right arm. Ms. Backus
listed the date of injury as November 12, 2014, but put a
question mark after the date. In describing the injury, Ms.
Backus stated that it was a result of "always lifting
heavy things, metal urns, trash, and milk crates." The
physician's section of the form indicated that Ms. Backus
first sought treatment on November 22, 2014, for an
occupational injury resulting in a lumbar sprain.
Backus continued to work until February of 2015, when her
pain worsened to the point where she sought further
treatment. On February 25, 2015, Ms. Backus returned to
Princeton Community Hospital with complaints of worsening low
back pain with pain extending into the right leg. She
described her mechanism of injury as heavy lifting. A CT scan
of the lumbar spine was performed and revealed spondylosis
and sclerosis at L1-2. The findings were suggestive of a mild
bulging disc at L5-S1. Mild sclerosis with minimal narrowing
of the right sacroiliac joint, possibly secondary to mild
degenerative changes, was noted. The impression was back
March 11, 2015, Ms. Backus began treating with Florencio
Neri, M.D. Dr. Neri's assessment was shoulder pain and
low back pain. On March 16, 2015, Dr. Neri authored an
attending physician's statement indicating that Ms.
Backus's condition was the result of an injury. However,
Dr. Neri failed to respond to a question on the form asking
whether the injury was work-related. The following day, Dr.
Neri responded to the claims administrator's request for
additional medical information and stated that Ms.
Backus's condition was not the result of an injury.
Rather, Dr. Neri stated that Ms. Backus had been having right
shoulder and low back problems for the past year and a half.
claims administrator rejected the claim on April 13, 2015.
The Order stated that Ms. Backus originally described an
onset of symptoms with no specific accident or injury. As a
result, the claims administrator determined that Ms. Backus
did not suffer a compensable work-related injury. Ms. Backus
continued seeking treatment from Dr. Neri for her low back
pain. On April 20, 2015, Dr. Neri examined Ms. Backus and
noted that her symptoms of low back and shoulder pain were
first diagnosed on February 3, 2015. Dr. Neri stated that
they were the result of a work-related injury. Dr. Neri noted
that Ms. Backus's work required her to lift heavy metal
coffee urns, milk, water, and trash all day at work.
Backus testified in a deposition on December 1, 2015, that
her low back injury resulted from a specific event rather
than from repetitive trauma. Ms. Backus stated that she was
standing on her toes attempting to lift a milk crate above
her head when she felt pain in her low back. Ms. Backus
testified that she continued working until February of 2015,
when she was diagnosed with a bulging disc. Ms. Backus stated
that she remained off work from February until May of 2015,
when she returned to work on a part time basis. Ms. Backus
testified that she worked anywhere from twenty to twenty-five
hours a week. She estimated that had she not been injured,
she would be working twenty-five to thirty-five hours a week.
Ms. Backus denied any problems with her low back prior to the
work-related incident in November of 2014. She complained of
constant, sharp pain in her lower back radiating down to her
right leg into the calf muscle.
Order dated October 12, 2016, the Office of Judges affirmed
the claims administrator's decision rejecting the claim.
The Office of Judges concluded that the record contained
sufficient inconsistencies and discrepancies to conclude that
a work-related injury did not occur as alleged by Ms. Backus.
For instance, the initial treatment notes from Princeton
Community Hospital provide conflicting stories of the
mechanism of injury. The attestation statement indicates that
Ms. Backus was treated for trauma from repetitive motion
while a nurse's note and the emergency room records state
that Ms. Backus injured her back while lifting a few days
prior. Further, medical records from May 1, 2015, indicate
that the cause of Ms. Backus's low back pain was
Backus's treating physician also provided conflicting
statements. In an attending physician's statement dated
March 16, 2015, Dr. Neri indicated that Ms. Backus's
condition was the result of an injury but failed to respond
to a question of whether the injury was work-related. The
following day, Dr. Neri indicated that Ms. Backus's
condition was not the result of an injury at all. Rather, he
indicated that she had been suffering from the symptoms for a
year and a half. On April 20, 2015, Dr. Neri contradicted his
previous statement and indicated that Ms. Backus's low
back condition was the result of a work-related injury.
the Office of Judges noted that Ms. Backus also provided
conflicting statements of how the injury occurred. When Ms.
Backus originally filed her claim, she indicated that she
injured her low back by always lifting heavy things at work.
However, in her deposition, Ms. Backus testified that she
injured herself in one specific occurrence. Taken as a whole,
the Office of Judges concluded that the evidentiary record
contained too many inconsistencies and discrepancies to
support a finding of compensability in this claim. Some
evidence suggested cumulative trauma while other evidence
suggested a single occurrence injury. Yet other evidence
suggested that Ms. Backus did not sustain an injury at all.
The Office of Judges concluded that Ms. Backus failed to
prove her claim by a preponderance of the evidence. The Board
of Review adopted the findings of fact and conclusions of law
of the Office of Judges and affirmed its Order on March 20,
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 evidentiary record is full of inconsistent
statements as to how or whether Ms. Backus was injured in the
course of and as a result of her employment. Ms. Backus
failed to provide persuasive evidence or argument as to a
definitive mechanism of injury and thus did not meet her
burden of proof. The Board of Review and Office of Judges did
not err in affirming the denial of her claim.
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 ...