Appeal No. 2051542, Claim No. 2016026271
workers' compensation action, Jimmie Lemon, a laborer,
alleges he injured his back when the equipment he was
operating hit a hole, jostling him out of his seat. We are
asked to decide whether this injury was properly found to be
non-compensable. We are guided by West Virginia Code §
23-4-1 (2008), which provides that an injury is compensable
if it was a personal injury received in the course of and
resulting from employment. We hold that Mr. Lemon did not
sustain a compensable injury in the course of his employment.
Further, after consideration of the parties' briefs and
the evidentiary record, we find that the decisional process
would not be significantly benefitted 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 material misstatements or
mischaracterizations 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.
Lemon has a long history of lower back problems. In 2002, he
sustained a work-related injury. The claim was held
compensable for backache, lumbosacral sprain/strain, thoracic
sprain/strain, and unspecified trunk injury, among others. In
a 2008 claim, he injured his back at work. A 2009 treatment
note by Rajesh Patel, M.D., indicates Mr. Lemon was seen in
consultation for his back and right leg. He had severe,
burning pain in his lower back that went down into his right
leg and groin. He also had numbness in his feet and toes. The
assessment was to rule out a herniated disc at L5-S1, right
S1 radiculopathy, and possible right hip labral tear. A
lumbar MRI taken in March of 2009, showed mild concentric
bulging of L4-5 and L5-S1. There were no herniations or
stenosis. Shortly after, Mr. Lemon was treated by Dr. Patel
and reported that he was still having intense pain in his
back and right leg. The assessment was lumbar sprain and
right hip subchondral cyst. The MRI findings were not enough
to warrant surgical intervention in Dr. Patel's opinion.
Following the compensable injury in the instant claim,
Michael Kominsky, M.D., noted in a narrative report that the
assessment of Mr. Lemon was right L5-S1 disc protrusion with
nerve root compression; lumbar, pelvic, and sacral joint
dysfunctions; and lumbar facet syndrome. Physical therapy was
recommended. A lumbar MRI taken in April of 2016, showed a
right disc herniation and bulge at L4-5 causing nerve
impingement, degenerative disc disease at L5-S1 and T11-T12,
and an enlarging cyst in the right mid renal pole.
statement, Ronald Price, general mine foreman, indicated that
Mr. Lemon came to his office with a modified work slip
complaining that his back hurt and his doctor recommended he
take it easy while at work. He had a limp and was moving
slowly. When asked, Mr. Lemon stated he did not know what
happened to his back. Mr. Lemon was not allowed to go into
the mine because the slip only said modified duty and did not
give a good description of limitations. He was instructed to
return after his next doctor's appointment.
Evans, mine manager, also completed a statement in which he
said that Mr. Lemon came to work the day after the alleged
injury with a modified duty slip. He stated his back hurt,
and his doctor wanted him to be off of work. However, he told
the doctor that he had to work. Mr. Lemon was told by Mr.
Price that he could not work. Mr. Lemon was scheduled to come
in four days later. Mr. Evans asserted that Mr. Lemon did not
mention bring injured work nor did he fill out an accident
report. He came to work about a week after the incident
occurred and asked to fill out an accident report. When asked
why he did not say anything before, Mr. Lemon stated that an
MRI showed a bulged disc and a pinched nerve. When asked when
it happened, he responded that it was hard to put a date on
it and said that it was due to the normal wear and tear of
statement, Donnie Crum, assistant general mine foreman, noted
that Mr. Lemon always moved as if his back hurt. He had asked
him many times if he was okay. Mr. Lemon always responded
that he was fine and that it was due to a previous injury
when he was younger. Mr. Lemon never reported that the job he
was performing caused him to be injured in any way. A few
days before the alleged injury, while working, Mr. Crum again
asked Mr. Lemon if he was okay. Mr. Lemon responded that he
was fine and stated he did not hurt his back while working
for the employer.
second statement, Mr. Price reported that Mr. Lemon came to
work and asked to fill out an accident report. When asked how
he injured himself and why he did not report it, Mr. Lemon
responded that he could not put a date on years of wear and
tear. He reasoned that since he does nothing but work and go
home, it must have happened at work. Mr. Lemon further stated
that he remembered an occasion when he was running a shuttle
car and his back hurt so badly that he was sent home early.
He also said that an MRI showed a few bulging discs, so he
decided he should turn it in under workers' compensation.
Orphanos, M.D., treated Mr. Lemon for the alleged injury and
noted that he was seen for low back and bilateral leg pain.
The impression was intervertebral disc disorders with
radiculopathy in the lumbar region. Dr. Orphanos noted that
Mr. Lemon injured his back while operating equipment and
bouncing in the seat.
Employer's Report of Injury indicates the injury was
reported one week after it allegedly occurred. Arch Coal,
Inc., indicated it suspected a prior injury to the back and
had reason to question the injury. Mr. Lemon's Report of
Injury indicates that he injured his back while working for
Arch Coal, Inc. He asserted that he was running a supply
motor on a rough road, hit a hole, and bounced out of his
seat. The physician's section lists the injury as an
occupational lumbar sprain.
disability management medical request form indicates Mr.
Lemon's primary diagnosis was L4-5 disc herniation with
nerve root impingement. It was noted that the condition was
not work-related. He was scheduled for lumbar surgery, which
Dr. Orphanos performed in June of 2016. In a treatment note,
Dr. Orphanos noted that Mr. Lemon underwent surgery but still
had some weakness of the right proximal lower extremity,
likely secondary to nerve root retraction. In July, Dr.
Orphanos noted that Mr. Lemon still had severe pain in the
right lower extremity.
record review, David Soulsby, M.D., assessed lumbar
degenerative disc disease. He opined that the MRI showed the
natural progression of degenerative disc disease, and Mr.
Lemon's herniated disc is chronic in nature. He further
opined that Mr. Lemon did not sustain a work injury. Dr.
Soulsby found that Mr. Lemon suffered from chronic neck and
back pain long before the alleged injury occurred. He
experienced an exacerbation severe enough to make him seek
medical attention only days before the alleged injury. Dr.
Soulsby stated that at the very most, there may have been a
minor exacerbation of a pre-existing condition. However, he
found no evidence of any significant injury. He stated that
Mr. Lemon's symptoms are the result of his pre-existing
hearing before the Office of Judges, Mr. Lemon testified that
his shift was to end at 12:20 a.m., but at 8:30 p.m., he was
operating equipment when he hit a bump that raised him from
his seat. He came back down and felt pain in his back and
leg. He called his boss, Donnie Crum, around 10:30 p.m. and
told him that he was going home. Mr. Lemon stated that he
knew he had arthritis and was treated by Dr. Kominsky for
pain; however, that pain was mostly in the mid-back, neck,
and shoulders. He asserted that he talked on the radio with
Mr. Crum the day he was injured and left his shift early. Mr.
Lemon's wife also testified that he came home three hours
early the night in question and was in pain.
comparison report, Jonathan Luchs, M.D., noted that the April
of 2016, MRI was relatively unchanged compared to the March
of 2009, MRI, with the exception of the typical progression
of degenerative disc disease and interval development of what
appears to be a chronic disc herniation at L4-5. In an aging
analysis report, Dr. Luchs concluded that the 2009 MRI
demonstrates degenerative disc disease with degenerative disc
bulging resulting in ...