Appeal No. 2051637) (Claim No. 2016021531)
Murray American Energy, Inc., by Aimee M. Stern and Denise D.
Pentino, its attorneys, appeals the decision of the West
Virginia Workers' Compensation Board of Review. Ronald
Phillips, by Robert L. Stultz, his attorney, filed a timely
issue on appeal is the compensability of the claim. The
claims administrator rejected the claim on March 8, 2016. By
its Order dated October 21, 2016, the Office of Judges
reversed the claims administrator's decision and held the
claim compensable for a thoracic strain. 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
Phillips, a motorman, alleges that he was injured in the
course of and as a result of his employment on September 16,
2015. Mr. Phillips completed a report of injury indicating
that he was driving a motor with three cars being pulled
behind when one car went off the track. Mr. Phillips stopped
his motor and had just stood up to check on the derailed car
when his motor was struck from behind by another motorman.
The force knocked Mr. Phillips down, causing him to strike
his back and jerk his neck.
September 17, 2015, Mr. Phillips presented to Preston Urgent
Care with complaints of back pain in the lower and middle
region on both sides and the right upper region. Mr. Phillips
indicated that the pain was radiating down his left leg. Mr.
Phillips underwent an x-ray of the thoracic spine which
revealed multilevel thoracic spine degenerative changes
without definite acute fracture or malalignment. He was
diagnosed with an acute sprain/strain of the thoracic spine
due to trauma.
Phillips's pain continued throughout the month of
November of 2015 and he continued to seek treatment. His back
pain was described as acute and sharp. On November 10, 2015,
Mr. Phillips saw a physician at Preston Urgent Care who noted
low back pain with mild right sciatica due to a recent
injury, exacerbating chronic low back pain. An x-ray taken on
November 11, 2015, revealed multilevel degenerative changes
with scoliotic curvature.
Phillips has a significant history of back problems prior to
the September 16, 2015, injury. In 2005, Mr. Phillips
underwent a cervical spine MRI revealing C5-C6 mild spinal
stenosis secondary to disc bulging and posterior osteophyte,
as well as degenerative facet disease; narrowing of the left
neural foramina at C6-7 secondary to a small left paracentral
disc protrusion and a moderate size left osteophyte; and C6
and C7 vertebral body hemangiomas. Mr. Phillips also
underwent a cervical and lumbar MRI on October 16, 2013,
which revealed multilevel degenerative changes and loss of
intervertebral disc space height most notable at the C5 and
C7 levels. The lumbar MRI revealed multilevel degenerative
changes with large broad-based disc bulges and herniations at
Phillips's pain persisted and on February 22, 2016, he
once again presented to Preston Urgent Care. Mr. Phillips
stated that he was suffering from back pain and constant neck
pain. The notes indicated that the pain started around
September 20, 2015. However, another section in the notes
indicated that the back pain began on February 22, 2016. Mr.
Phillips was diagnosed with unspecified dorsalgia, low back
pain, and unspecified polyneuropathy. Mr. Phillips completed
an application for benefits the same day and indicated that
he injured himself on September 16, 2015, when his motor was
struck from behind by another motorman and he fell, striking
his back and jerking his neck. The physician's section
was completed by Sharon Tichnell, PA-C, who indicated that
she was first consulted regarding Mr. Phillips's back
pain on September 17, 2015. Ms. Tichnell diagnosed low back
pain and sciatica. The claims administrator denied the
application for benefits on March 8, 2016. The Order stated
that the medical records indicated that Mr. Phillips suffers
from a degenerative condition and noted that Mr. Phillips
alleged he was injured on September 16, 2015, but did not
file an application until February 22, 2016.
13, 2016, Mr. Phillips testified in a deposition that he was
injured when he was struck from behind by a motorman. Mr.
Phillips stated that he was knocked down, breaking the hand
lever off with his back. He filled out a report of injury at
the end of his shift and presented to a doctor the following
day. At the time, his neck, mid-back, and lower back were
hurting. Mr. Phillips continued working until February 22,
2016, when he could no longer take the pain. Mr. Phillips was
examined by Preston Urgent Care and placed in physical
therapy, which seemed to improve his leg pain but not his
back pain. Mr. Phillips admitted that prior to the September
16, 2015, injury, he had back problems for which he sought
treatment from various doctors. Mr. Phillips had back pain
from the age of fourteen or fifteen, when he was working in
the hayfields. While Mr. Phillips admitted prior back pain,
he stated that he had always worked and passed his physicals.
Order dated October 21, 2016, the Office of Judges reversed
the claims administrator's decision rejecting the claim.
The Office of Judges concluded that there was sufficient
evidence to find that Mr. Phillips sustained a compensable
injury on September 16, 2015, and held the claim compensable
for a thoracic strain. The Office of Judges noted that while
Mr. Phillips also complained of low back pain, the medical
evidence of record was not sufficient to support a finding of
a lumbar condition as there were inconsistent statements as
to when his low back pain originally occurred. Therefore, the
claim was held compensable solely for a thoracic sprain. 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, 2017.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. The
evidentiary record shows that Mr. Phillips immediately
reported his injury on September 16, 2015. Mr. Phillips
presented to the doctor the next day and was diagnosed with a
sprain to the thoracic region due to trauma. The medical
evidence of record is sufficient to support a finding that
Mr. Phillips sustained a compensable thoracic sprain on
September 16, 2015.
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 ...