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Baker v. Centre Foundry Machine Co.

Supreme Court of West Virginia

May 17, 2018

Kenneth Baker, Claimant Below, Petitioner,
v.
Centre Foundry Machine Company, Employer Below, Respondent.

          BOR Appeal No. 2051860

          MEMORANDUM DECISION

         Petitioner, Kenneth Baker, by counsel, M. Jane Glauser, appeals the decision of the West Virginia Workers' Compensation Board of Review ("the Board"). Centre Foundry Machine Company ("the employer"), by counsel, Sean Harter, filed a timely reply.

         Mr. Baker suffered a back injury at work in April 2014. A West Virginia workers' compensation statute requires that an employee's application for workers' compensation benefits be filed within six months of the date the employee was injured.[1] Mr. Baker did not file an application for workers' compensation benefits or seek medical attention until 2016.

         The claims administrator determined that Mr. Baker's application for workers' compensation benefits was untimely filed and that he should have immediately sought medical attention after his injury. The claims administrator issued the following four orders: (1) an order dated June 29, 2016, rejecting Mr. Baker's claim for workers' compensation benefits; (2) a second order dated June 29, 2016, denying Mr. Baker's request to reopen his claim; (3) an order dated July 12, 2016, denying authorization for a referral to a neurosurgeon; and (4) an order dated August 1, 2016, denying authorization for aqua therapy. Mr. Baker appealed all four of the claims administrator's orders to the Workers' Compensation Office of Judges. On February 14, 2017, the Office of Judges issued an order affirming the claims administrator on all four orders. On Mr. Baker's appeal from the Office of Judges order, the Board affirmed the Office of Judges in a July 28, 2017, order.

         The Court has considered the parties' briefs, oral arguments, and the record on appeal. Upon consideration of the standard of review, the briefs, the oral arguments, and the record on appeal, 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. Baker worked as a melter in the employer's iron works facility (meaning that his job was to add alloys and scrap metal into a furnace to make iron). On the morning of April 10, 2014, he needed to hook a seventy-pound magnet onto a crane to assist him in his job duties. When he picked the magnet off the floor, he pulled a muscle in his back and experienced pain radiating from his lower back down into his right hip. He immediately told his supervisor about the injury. However, Mr. Baker did not leave work or seek medical attention. He took pain medication kept by the employer, finished out his work-day (which was a Friday), and rested over the weekend. He returned to work the following Monday, by which time he claimed that his lower back "seemed like it was fine." He claims that he eventually "forgot" about the injury.

         On April 10, 2014, the same day Mr. Baker was injured, his supervisor reported the injury in writing to the employer. A West Virginia workers' compensation statute requires employers to report to the Insurance Commissioner "every injury sustained by any person in his or her employ."[2] The plain language of the statute contains no distinction based on whether the employee intends to file an application for workers' compensation benefits. Accordingly, the employer electronically submitted an "Employer's Report of Injury" to its then-current insurance carrier, Berkshire Hathaway, on April 14, 2014. The employer's report contains basic information regarding Mr. Baker's injury, such as the date, time, and place of the injury, as well as the body part and type of injury. However, the employer's report does not contain information regarding how the injury occurred, a physician's report, or an indication as to whether the employee intends to file a claim for workers' compensation benefits. An intake form prepared by Berkshire Hathaway confirms its receipt of the employer's report of injury on the same day it was submitted. Berkshire Hathaway did not attempt to contact Mr. Baker upon its receipt of the employer's report of injury.

         Mr. Baker had six months - from the April 10, 2014, date he was injured until October 10, 2014 - to file an employee's application for workers' compensation benefits. He did not file an application for benefits during those six months, he did not request that the employer file an application on his behalf, and he does not claim that the employer told him that it would file a claim on his behalf. Mr. Baker continued to work the same job, and he claims that his back pain "sort of healed up" and that he eventually "forgot" about the April 2014 injury.

         However, in November 2015, his back pain started to worsen. In January 2016, he sought medical treatment for his lower back for the first time since his April 2014 injury. On March 8, 2016, Mr. Baker suffered a second back injury at work while shoveling carbon into a furnace. This time, he requested that his employer file an application for workers' compensation benefits with its new insurance carrier, BrickStreet. A claims administrator for BrickStreet told the employer that it would not handle Mr. Baker's claim because, in its view, Berkshire Hathaway was responsible for compensating him as it was the insurer when Mr. Baker suffered his April 2014 injury.

         Accordingly, Mr. Baker requested that his employer contact Berkshire Hathaway and request that they reopen his claim for workers' compensation benefits. In addition, in March 2016, he filed his employee's application for workers' compensation benefits for his April 2014 injury with Berkshire Hathaway. He also requested authorization from Berkshire Hathaway for a referral to a neurosurgeon and for aqua therapy.

         A claims administrator for Berkshire Hathaway denied Mr. Baker's requests. It determined that Mr. Baker failed to timely file an application for workers' compensation benefits, and he failed to immediately seek medical attention for his injury. On those grounds, the claims administrator issued the following four orders: (1) an order dated June 29, 2016, rejecting Mr. Baker's claim for workers' compensation benefits; (2) a second order dated June 29, 2016, denying Mr. Baker's request to reopen his claim; (3) an order dated July 12, 2016, denying authorization for a referral to a neurosurgeon; and (4) an order dated August 1, 2016, denying authorization for aqua therapy.

         Mr. Baker appealed all four of the claims administrator's orders to the Office of Judges. On February 14, 2017, the Office of Judges issued an order affirming the claims administrator on all four orders. On Mr. Baker's appeal from the Office of Judges order, the Board affirmed the Office of Judges in a July 28, 2017, order.[3] Mr. Baker appeals the Board's July 28, 2017, order.

         Our standard for reviewing an order by the Board is codified in West Virginia Code § 23-5-15(c) [2005], which provides, in pertinent part:

If the decision of the board represents an affirmation of a prior ruling by both the commission and the Office of Judges that was entered on the same issue in the same claim, the decision of the board may be reversed or modified by the Supreme Court of Appeals only if the decision is in clear violation of constitutional or statutory provision, is clearly the result of erroneous conclusions of law, or is based upon the ...

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