Appeal No. 2051892, (Claim No. 2016028649)
Kelly Bailey, by Reginald Henry, her attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Mercer County Board of Education, by Katherine
Arritt, its attorney, filed a timely response.
issue on appeal is the compensability of Ms. Bailey's
claim for workers' compensation benefits. On May 19,
2016, the claims administrator denied Ms. Bailey's
application for benefits. The Office of Judges reversed the
claims administrator in its February 27, 2017, Order. The
Order was reversed by the Board of Review on August 14, 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
Bailey, a cook for Mercer County Board of Education, fell at
work on April 22, 2016. She was treated in the emergency room
at Bluefield Regional Medical Center on May 3, 2016, for neck
pain and lower back pain that radiated into her right hip.
She provided a history of falling at work the previous
Friday. It was noted that she had a history of lumbar spine
pain and the fall aggravated it. She was diagnosed with acute
Bailey was treated at MedExpress for neck and back pain on
May 9, 2016. She was diagnosed with back and neck pain,
provided prescriptions, and advised to attend a previously
scheduled orthopedic appointment. The physician section of
the employees' and physicians' report of injury was
completed by Steven D. Bridges, M.D., who noted Ms. Bailey
was initially treated on May 9, 2016, that she injured her
neck and back when she fell on April 22, 2016, and that she
aggravated a prior low back injury when she fell. Ms. Bailey
was treated at MedExpress on May 18, 2016, and diagnosed with
low back pain and neck pain. On May 19, 2016, the claims
administrator rejected Ms. Bailey's application for
benefits as the injuries alleged were pre-existing.
to the April 22, 2016, injury Ms. Bailey had sought medical
treatment for her lumbar spine a number of times. On
September 23, 2015, she was treated for neck and upper back
pain after a motor vehicle accident. On November 30, 2015,
Ms. Bailey injured her neck at work. She was off of work due
to that injury until at least March 1, 2016. She was treated
extensively for neck pain, with some occasional complaints of
low back pain, both before and after the April 22, 2016,
injury. On May 23, 2016, Ms. Bailey was diagnosed with back
pain and cervicalgia.
September 13, 2016, Ms. Bailey testified that she was injured
on April 22, 2016, when she slipped and fell in some grease
and water that was on the floor of the dish room. She fell on
her tailbone. She had fallen a couple of months prior to the
April injury and at that time she injured her neck and upper
back. On April 22, 2016, she injured her lower back and
irritated her neck and back injuries from the previous fall.
She denied having had pain or an injury to her low back prior
to the April fall and denied receiving any medical treatment
for her low back prior to the April fall.
September 13, 2016, Alecia Lusk, Ms. Bailey's co-worker,
testified via deposition that on April 22, 2016, she was
working with Ms. Bailey and she told her she fell down. She
did not witness the fall, but turned to get more dishes and
saw Ms. Bailey sitting on the floor in the doorway. Ms. Lusk
observed Ms. Bailey get back up and finish her shift.
Office of Judges reversed the claims administrator's
rejection of the claim and found the claim compensable for a
lumbar sprain/strain on February 27, 2017. It determined that
Ms. Bailey had established by a preponderance of the evidence
that she sustained an injury to her lumbar spine in the
course of and resulting from her employment on April 22,
2016. An isolated fortuitous event occurred when she slipped
and fell in some grease and water and landed on her tailbone.
The Office of Judges found the injury resulted in a lumbar
sprain/strain. While it acknowledged that Ms. Bailey had not
been forthcoming regarding her prior lumbar spine problems,
the medical evidence was sufficient to show a new injury. The
Office of Judges also noted Ms. Bailey's considerable
symptom magnification. However, the medical records showed
Ms. Bailey experienced limited range of motion after the
injury, which was not mentioned in the medical records prior
to the injury.
August 14, 2017, decision, the Board of Review considered the
case in light of Gill v. City of Charleston, 236
W.Va. 737, 783 S.E.2d 587 (2016). It concluded that the
Office of Judges' Order was clearly wrong and it was an
error of law to hold the claim compensable for a lumbar
sprain/strain. The Board of Review found that there was no
indication that Ms. Bailey had been diagnosed with a lumbar
sprain/strain. It agreed that she was not forthcoming about
her prior treatment and that the record raised concerns about
symptom magnification. Therefore, the Board of Review
determined there were "too many discrepancies in the
evidence to support the credibility of the claimant's
application and the compensability of the claim". After
review of the evidence of record and consideration of the
parties' arguments, we agree with the Board of Review.
The medical evidence shows Ms. Bailey had limited range of
motion following her fall on April 22, 2016. The diagnosis
for the lumbar spine was lumbar spine pain. The records do
not show Ms. Bailey was diagnosed with a lumbar
sprain/strain. Therefore, the claims administrator was
correct to reject the compensability of Ms. Bailey's
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 evidentiary
record. Therefore, the decision of the Board of Review is
CONCURRED IN BY: Justice Robin J. Davis, Justice Menis E.
Ketchum, Justice Allen H. Loughry ...