MARK. A. HINSON, Claimant Below, Petitioner
CHICAGO BRIDGE & IRON COMPANY, Employer Below, Respondent
Appeal No. 2051276 Claim No. 2014004605
Mark A. Hinson, pro se, appeals the decision of the West
Virginia Workers' Compensation Board of Review. Chicago
Bridge & Iron Company, by Maureen Kowalski, its attorney,
filed a timely response.
issue on appeal is the compensability of the claim. The
claims administrator rejected the claim on October 9, 2014.
By its Order dated April 6, 2016, the Office of Judges
affirmed the claims administrator's decision. The Board
of Review affirmed the Office of Judges' Order on July
15, 2016. 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 that the Board of Review's decision is
based upon a material misstatement or mischaracterization of
the evidentiary record. This case satisfies the "limited
circumstances" requirement of Rule 21(d) of the Rules of
Appellate Procedure and is appropriate for a memorandum
decision rather than an opinion.
Hinson, a pipefitter, alleged he was injured on March 7,
2013, while changing gaskets on flanges which required the
removal of nuts with a thirty-two inch, fifteen pound wrench.
He initially thought he was having a heart attack due to the
pain in his chest, left arm, and neck. Mr. Hinson told his
foreman about the pain, and his foreman took him to the
safety office. In the safety office, Mr. Hinson spoke to the
safety supervisor and the nurse. He rested in the safety
office for about a half an hour, and then went to the
hospital. A chest x-ray, laboratory results, and EKG results
all appeared normal.
March 19, 2013, Mr. Hinson presented to New Martinsville
Rural Health Clinic for a follow-up to his emergency room
visit. Mr. Hinson complained of pain in his left shoulder
which was constant but worsened with movement. He complained
of numbness in his entire left arm and the tip of his thumb
but stated that his hand was not numb. Mr. Hinson reported
left-sided neck pain and that the left arm felt weak due to
pain. The assessment was left shoulder pain. Mr. Hinson was
given a note for work through April 9, 2013, that stated he
could not climb ladders or push, pull, or reach above his
head with his left upper extremity. X-rays taken the next day
indicated that there were degenerative changes in the
cervical spine. No fractures of the left shoulder were
April 3, 2013, Mr. Hinson underwent an MRI of his left
shoulder which showed no rotator cuff tear. There was
evidence of subacromial/subdeltoid bursitis and mild
degenerative disease of the acromioclavicular joint. An MRI
of the cervical spine showed a naturally small spinal canal
with superimposed degenerative changes including subluxations
and disc herniations resulting in mild to moderate spinal
stenosis. There was fairly extensive foraminal stenosis from
C4-T1. On October 8, 2014, an arthrogram and MRI of the left
shoulder were performed. A superior labral tear from anterior
to posterior and significant articular set rotator cuff tear
October 9, 2014, the claims administrator rejected Mr.
Hinson's claim because he did not report the injury
timely to his employer and because there was no evidence to
support his allegation that he sustained an injury in the
course of and resulting from his employment. Mr. Hinson
protested the denial of the claim.
Hinson testified in a deposition on February 2, 2015, that he
injured himself in the course of his employment on March 7,
2013. His foreman, John Katherman, was present and took him
to the safety office. Danny Fields, the safety man, was in
the safety office, along with Nurse Hatchett. Mr. Hinson
testified that he went to his hotel room to change out of
muddy clothes before going to the hospital. When he arrived,
no one from his office was there. Mr. Hinson used his
wife's insurance because he did not know what else to do.
Mr. Hinson testified that he was placed on light duty and
continued to work for the employer for three to four weeks
before being laid off. Mr. Hinson stated that the employer
would let him off work to go to his doctor's
appointments. Mr. Hinson testified that each time he went to
the doctor; he gave the records to Mr. Fields or Nurse
Hatchett. Mr. Hinson testified that he spoke to a
representative at the employer's insurance company and
she stated that she would take care of the doctor's
bills. Mr. Hinson stated she has done nothing. Mr. Hinson
also tried to get in touch with attorneys but was never able
to reach them. Mr. Hinson believed that he had done
everything he was supposed to do under the circumstances.
February 15, 2015, Dwight Abshire, the Oil and Gas and Safety
Director for the employer, executed an affidavit that stated
Mr. Hinson did not report any accident or relate any
complaints of pain for any work-related incident on March 7,
2013. The protocol is for an injured worker to report the
accident immediately and to seek medical treatment. Someone
from the company is required to accompany the injured worker
to a physician's office. Mr. Hinson was aware of these
procedures as he has attended orientation and safety
meetings. Mr. Hinson should have reported the injury to a
supervisor, who would initiate a report and write a statement
to the Safety Department where all accidents are reported.
The first knowledge that the employer had of the alleged
work-related incident was in October of 2013, more than six
months after the alleged incident, when a medical bill was
April 1, 2015, Paul Bachwitt, M.D. performed an independent
medical evaluation. He opined that it was more likely than
not that Mr. Hinson tore his left rotator cuff at work on
March 7, 2013, and sustained a cervical spine sprain/strain.
Dr. Bachwitt noted some of the tools Mr. Hinson worked with
were quite large and that Mr. Hinson's foreman, Mr.
Katherman, and welder, Brian Patrick, could verify that Mr.
Hinson was injured at work while using a wrench. Dr. Bachwitt
also reported that Mr. Hinson could have continued working
after suffering a torn rotator cuff as not all rotator cuffs
tears are complete tears, but still need to be repaired.
Individuals who sustain a rotator cuff tear usually do not
have a full recovery, but with the best of treatment,
physical therapy, and home exercises, Dr. Bachwitt expected
Mr. Hinson to make a good recovery. He opined that Mr. Hinson
had not yet reached maximum medical improvement from the
injury of March 7, 2013, and would not until he undergoes
additional physical therapy for the limitation of motion in
his left shoulder and sees the neurosurgeon to determine
whether cervical injections or a laminectomy is recommended.
Muzzonigro, M.D., performed a medical records review on May
28, 2015, and opined that Mr. Hinson had significant
pre-existing conditions that included multilevel degenerative
changes in the neck, mid back, and low back with stenosis of
the cervical spine and prior injuries to his neck, shoulder,
back, and chest. All were unrelated to the March 7, 2013,
incident. Dr. Muzzonigro opined that if Mr. Hinson were an
accurate historian, he may have sustained a mild cervical and
left shoulder strain at work on March 7, 2013. At the time of
the incident, x-rays showed only degenerative changes. An MRI
of the cervical spine also showed no evidence of injury, but
there was evidence of degenerative changes and stenosis. Dr.
Muzzonigro did not believe the medical records showed an
aggravation of a pre-existing condition. Nor did he believe
that Mr. Hinson sustained a rotator cuff tear in the course
of and resulting from his employment.
April 6, 2016, the Office of Judges affirmed the claims
administrator's decision rejecting the claim. The Office
of Judges began by stating that there is an issue of whether
an application was filed within the time limits of West
Virginia Code §23-4-15(a) (2010). Under this provision,
the application must be filed within six months of the
injury. The Office of Judges did not find Mr. Hinson's
testimony to be persuasive and found that there was no
evidence an application for benefits had been timely filed.
Virginia Code §23-4-1a (2003) states that every employee
who sustains an injury shall immediately, or as soon
thereafter as practicable, give the employer written notice
of the injury. The Office of Judges determined that there is
no evidence that Mr. Hinson provided written notice of any
injury in accordance with the statute. The employer stated it
first learned of the incident when it received a bill after
the six month time frame had expired. The Office of Judges
concluded that this was neither timely nor an appropriate
form of providing written notice. The Office of Judges did
not determine what, if ...