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Morgan v. Eastern Vault Company, Inc.

Supreme Court of West Virginia

March 21, 2018

JOEY D. MORGAN, Claimant Below, Petitioner
v.
EASTERN VAULT COMPANY, INC., Employer Below, Respondent

          BOR Appeal No. 2051954, Claim No. 2016027825.

          MEMORANDUM DECISION

         Petitioner Joey D. Morgan, by Gregory Prudich, his attorney, appeals the decision of the West Virginia Workers' Compensation Board of Review. Eastern Vault Company, Inc., by Jillian Moore, its attorney, filed a timely response.

         The issue on appeal is the compensability of the claim. On May 19, 2016, the claims administrator rejected the claim as there were sufficient inconsistencies and contradictions to conclude that Mr. Morgan did not sustain an injury in the course of and as a result of his employment on March 16, 2016. The Workers' Compensation Office of Judges affirmed the claims administrator's decision in an Order dated April 24, 2017. This appeal arises from the Board of Review's Final Order dated September 29, 2017, in which the Board affirmed the Order of the Office of Judges. The Court has carefully reviewed the records, written arguments, and appendices contained in the briefs, and the case is mature for consideration.

         This 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 Procedure.

         Mr. Morgan alleged that he injured his knee on March 16, 2016, while tying rebar in a box form. He reported that he slipped and twisted his knee. He sought treatment on March 17, 2016, and reported to James Morgan, M.D., with Med Express in Princeton, West Virginia, that he had been experiencing pain and swelling for three days. Mr. Morgan denied that any injury occurred, and reported that his knee pain began gradually and was intermittent.

         On March 22, 2016, Mr. Morgan sought treatment for knee pain in the emergency room at Princeton Community Hospital. Again, Mr. Morgan denied that he suffered any type of injury. Princeton Community Hospital records from March 22, 2016, to April 27, 2016, indicate that Mr. Morgan reported that his right knee pain was about one month in duration. A radiology report noted increased density and swelling of the prepatellar and infrapatellar soft tissue. Mr. Morgan was told he could return to work on April 25, 2016.

         Mr. Morgan sought treatment with Deborah Croy, ANP-BC, on March 29, 2016. He reported suffering pain in his right knee for three weeks. Again, he did not report a specific injury to his knee.

         Mr. Morgan was evaluated by Nancy Davidson, FNP, on April 4, 2016. Mr. Morgan reported having knee pain for three weeks, with no apparent mechanism of injury. Mr. Morgan was advised to limit standing for prolonged periods of time, and to elevate his knee when possible.

         On April 13, 2016, an MRI report from Community Radiology revealed that Mr. Morgan had early osteoarthritis; tears of the anterior horn, posterior horn, and body of the lateral meniscus; multiple meniscal cysts contiguous with the anterior horn of the lateral meniscus; joint effusion; pre-patellar bursitis; synovial cyst continuous with the joint space posterior to the medial femoral condyle; and spontaneous osteonecrosis of the knee/insufficiency fracture involving the medial femoral condyle.

         Mr. Morgan returned to the emergency room at Princeton Community Hospital on April 20, 2016. He reported that he had been suffering knee pain for the past month. He once again denied that he had been injured. Mr. Morgan stated that his knee popped on April 19, 2016, which caused increased pain.

         On April 25, 2016, Mr. Morgan gave notice to the employer of an occupational injury. It was noted that Mr. Morgan worked through April 18, 2016. The employer questioned the injury because Mr. Morgan failed to report a work-related injury. Instead, Mr. Morgan sought treatment under his private insurance.

         Rebecca Thaxton, M.D., issued a Physician's Review report on May 17, 2016. Dr. Thaxton examined whether the medical evidence supported that a work-related injury occurred on March 16, 2016. Dr. Thaxton noted that the first medical evidence in the claim was a March 17, 2016, report from MedExpress when Mr. Morgan complained of right knee pain and swelling for three days without a known injury. He was seen again at Princeton Community Hospital on March 22, 2016, where he again denied an injury, and complained of increased knee pain and swelling. Mr. Morgan was again seen at Princeton Community Hospital on April 20, 2016, when he once again denied that an injury had occurred and stated that his knee had been hurting for one-and-a-half months, but that it popped the day before. An April 13, 2016, MRI revealed degenerative findings. Dr. Thaxton noted that Mr. Morgan's first report of injury form dated April 27, 2016, listed the date of injury as March 17, 2016. The physician's report signed on April 27, 2016, indicated that was the first day of initial treatment and that the work injury was reported as "knee popped while squatting." An employer's First Report of Injury form dated April 26, 2016, stated that Mr. Morgan hit his knee while on his knees tying rebar. Dr. Thaxton noted the inconsistencies in the record and concluded that the record does not support that Mr. Morgan suffered a work-related injury. Dr. Thaxton advised that Mr. Morgan denied an injury had occurred and then gave different accounts of a mechanism of injury. Also, Dr. Thaxton reasoned that the MRI findings were degenerative and did not appear to support the position that an acute injury had occurred.

         On May 19, 2016, the claims administrator rejected Mr. Morgan's claim for benefits. The claims administrator rejected the claim because there were sufficient inconsistencies and contradictions to conclude that Mr. Morgan did not sustain an injury in the course of and resulting from his employment. Mr. Morgan protested the claims administrator's Order.

         In his September 22, 2016, deposition, Mr. Morgan described his job at Eastern Vault Company, where he worked as a carpenter. He stated that he twisted his knee on March 16, 2016, while tying bands in a box form. Mr. Morgan testified that Kenny Pilkins witnessed the incident. He finished his shift and was afraid to report the injury because he feared losing his job. He also testified that at the time of the alleged injury, he had recently returned to his employment after being off work for six-months while he recovered from a prior compensable injury. He testified that he filed his workers' compensation claim for his knee after receiving the ...


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