BOBBY R. STEELE, Claimant Below, Petitioner
KC TRANSPORT, INC., Employer Below, Respondent
Appeal No. 2051732 (Claim No. 2016032115)
Bobby R. Steele, by Reginald D. Henry, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. KC Transport, Inc., by Henry C. Bowen, its
attorney, filed a timely response.
issue on appeal is whether a compensable injury occurred. The
claims administrator rejected the claim on September 21,
2016. The Office of Judges affirmed the claims
administrator's decision on December 13, 2016. The Board
of Review affirmed the Order of the Office of Judges on May
19, 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
Steele, a driver for KC Transport, Inc., alleged that he was
injured on February 4, 2016, when his truck collided with
another machine. Mr. Steele filled out a report of injury
stating that the truck he was driving struck an end loader.
Mr. Steele wrote that he injured his neck and had ringing in
his ear. The physician's section was completed on March
14, 2016, at the Welch Community Hospital, indicating Mr.
Steele sustained an occupational injury of a cervical sprain
March 15, 2016, Jose Oyco, M.D., at Welch Community Hospital
treated Mr. Steele mainly for poorly controlled diabetes. The
truck collision was briefly discussed. However, Dr. Oyco
referred Mr. Steele to orthopedics for further treatment. Mr.
Steele was treated in the emergency department of Welch
Community Hospital for neck pain, upper back pain, and lower
back pain on March 24, 2016. Mr. Steele also continued to
complain of ringing in his ears. He was diagnosed with a
cervical strain and discharged in stable condition.
April 1, 2016, Mr. Steele was treated in the emergency
department of Welch Community Hospital for neck and back
pain. Mr. Steele's neck pain radiated to his shoulders
bilaterally. Mr. Steele had no improvement in his symptoms.
The treatment note indicates Mr. Steele was waiting for an
MRI approval, and he was given a work excuse for one week.
The following week, Mr. Steele returned to the emergency
department of Welch Community Hospital with cervical pain
that increased with range of motion.
April 10, 2016, Mr. Steele returned to the emergency
department of Welch Community Hospital for neck and back pain
that increased with movement. An x-ray of the chest was
unremarkable. An x-ray of the cervical spine revealed
uncovertebral joint arthrosis on the left at C5-C6. The
lateral masses and C1 and C2 are shown to align. The
impression was multilevel degenerative disc disease without
cervical spine fracture. An x-ray of the lumbar spine
revealed narrowing on the left at L3-4, L4-5, and L5-S1 and
on the right at L4-5 and L5-S1. The impression was multilevel
degenerative changes. Two days later, Mr. Steele was treated
by Dr. Oyco at Welch Community Hospital for Type II diabetes
mellitus, hypertension and hyperlipidemia. A truck collision
is mentioned in Dr. Oyco's treatment note. He wrote that
Mr. Steele had severe back and shoulder pain and that x-rays
of Mr. Steele's cervical spine revealed degenerative
9, 2016, Mr. Steele was treated in the emergency department
of Welch Community Hospital for a motor vehicle accident,
which occurred on February 4, 2016. Mr. Steele stated he had
neck pain, a dull headache, ringing in the left ear, and
bilateral arm shaking since the accident. A CT of the brain
was unremarkable. A CT of the cervical spine revealed
straightening of the normal cervical lordosis and narrowing
of the C5-C6 intervertebral disc space. A chest x-ray was
unremarkable. Mr. Steele was placed in a C-collar, prescribed
medication, and discharged.
Steele returned to the emergency room on May 11, 2016, with
back pain, neck pain, and a jerking left arm. Mr.
Steele's neck pain increased with range of motion. His
neck and lumbar spine had decreased range of motion. He was
provided a work excuse until the end of the month. He was
diagnosed with neck pain secondary to a motor-vehicle
accident. A May 25, 2016, MRI of the cervical spine revealed
multilevel degenerative disc disease most significant at
C5-C6 in the form of disc space narrowing and left posterior
spondylitic bar with moderate to severe narrowing of the left
anterior thecal sac and mild to moderate narrowing of the
left neural foramen by spondylitic changes. There were subtle
impressions of the left anterior surface of the spinal cord
by these changes at C5-C6 without any signal alteration of
the cervical spinal cord.
2, 2016, Mr. Steele returned to the emergency department with
neck and back pain. Mr. Steele returned again on June 24,
2016, with similar complaints. On July 21, 2016, Mr. Steele
was seen for low back pain and difficulty walking. Mr. Steele
also had cervical pain. He was requesting physical therapy.
Mr. Steele was diagnosed with lumbago and he was referred for
physical therapy. On September 21, 2016, the claims
administrator denied his application for benefits.
November 16, 2016, three affidavits were completed. Kenny
Compton completed an affidavit, which stated that Mr. Steele
was involved in a motor-vehicle accident on February 4, 2016,
when the coal truck he was driving hit an end loader. Mr.
Compton wrote that both vehicles had headlights on. According
to the affidavit, Mr. Compton asked Mr. Steele if he was hurt
and he responded that he was fine. Mr. Compton also wrote
that he and Mr. Steele had many interactions over the course
of the next month or thereabout and that Mr. Steele never
mentioned to Mr. Compton he was injured. According to Mr.
Compton, the clear implication of Mr. Steele's statements
and demeanor was that this incident was extremely minor and
there was no possibility that he could have been injured. The
affidavit states Mr. Steele's truck was not repaired for
a couple months and that during this time, Mr. Steele was
told that he was not allowed to return to work because he was
in at least three incidents in which he ran into another
vehicle or obstruction in his truck. Mr. Compton stated that
he had serious concerns about his ability to safely drive.
According to the affidavit, Mr. Steele came to Mr. Compton
several times asking to return to work. However, Mr. Compton
told Mr. Steele that he did not intend to allow Mr. Steele to
go back to driving trucks. Finally, Mr. Steel asked for a
cutoff, and Mr. Compton obliged. Mr. Compton stated that at
that time, Mr. Steele never had reported any injury and had
not filed a workers' compensation claim. Mr.
Compton's affidavit states that he was very surprised to
discover Mr. Steele filed a workers' compensation claim
because Mr. Steele never reported an injury and behaved
normally at all times.
Gilman completed an affidavit which stated that she was a
heavy equipment operator for Hampden Coal, LLC on the date of
collision. She was operating a loader on a mine site at
approximately 6:30 a.m. It was dark but the weather was
clear. Both she and Mr. Steele had the lights on their
machinery on and collided at a very low speed. She noted that
not only was she not injured but she was not even jarred
around because the impact was so minimal. She and Mr. Steele
both exited the machinery and discussed the accident. She
stated that he asked her if she was hurt and she asked him if
he was hurt. She watched him for the next several minutes,
and he did not behave as if he was in any pain.
Compton wrote a statement regarding the vehicle collision.
Mr. Compton stated he no longer worked for the employer but
that he was a foreman for the employer from 2009 through
2016. Mr. Compton stated he went to the site of the collision
immediately after it was reported. According to Mr. Compton,
Mr. Steele reported that he was not injured. Mr. Steele
behaved normally, and never showed any signs of injury. Mr.
Compton stated he was surprised to learn Mr. Steele filed a