Appeal No. 2052147 (Claim No. 2016019297)
petitioner in this case, the City of Charleston, by James W.
Heslep, its attorney, appeals the decision of the West
Virginia Workers' Compensation Board of Review. Jonathan
Smoot, by Patrick K. Maroney, his attorney, filed a timely
issue on appeal is the compensability of the claim. On March
8, 2016, the claims administrator rejected Mr. Smoot's
claim. On July 28, 2017, the Workers' Compensation Office
of Judges reversed the claims administrator and held the
claim compensable for lumbar disc herniation and lumbar
radiculopathy. This appeal arises from the Board of
Review's Final Order dated December 28, 2017, in which
the Board affirmed the decision 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.
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
December 14, 2015, Mr. Smoot, a firefighter/EMT was loading a
heavy patient into the back of an ambulance when he
immediately felt a dull pain in his right lower back
radiating into his hip and right leg. The only witness to the
accident on December 14, 2015, was Seth Peterson, who stated
that Mr. Smoot injured his back while loading a patient at
Carroll Terrace. Mr. Smoot sought treatment with Gabriel
McKinney, D.C., with McKinney Chiropractic. Mr. Smoot had
previously been treated by Dr. McKinney for a lifting injury
where he had pain, stiffness, and spasms in his lower back. A
Report of Accident and Injury form was submitted noting that
the injury occurred on December 14, 2015. The employer
reported that it did not have any reason to question the
Smoot was treated by Tammy Bannister, M.D., with Marshall
Family Medicine, on January 12, 2016. Dr. Bannister recorded
that Mr. Smoot reported experiencing three weeks of right
gluteal and right post knee pain. Mr. Smoot also reported
that his foot and calf area was numb with tingling after
walking. Dr. Bannister noted that Mr. Smoot had long term
hamstring issues from tight muscles. Mr. Smoot was diagnosed
with lumbar radiculopathy. Dr. Bannister requested an MRI of
Mr. Smoot's lumbar spine.
from Marshall Family Medicine dated January 17, 2016,
revealed significant right paracentral disc herniation with a
large right paracentral component demonstrated at the L5-S1
level. An abutment of the descending nerve root was also
observed. Moderate neural foraminal compromise was
demonstrated bilaterally, left worse than right.
date after the MRI study, Mr. Smoot completed an application
for workers' compensation benefits. The physician's
portion of the application was completed by Dr. Bannister,
who diagnosed Mr. Smoot with disc displacement and muscle
spasm. Dr. Bannister certified that Mr. Smoot's condition
was the direct result of an occupational injury. Dr.
Bannister referred Mr. Smoot to Dwight Saulle, M.D., a
neurosurgeon with St. Mary's Neurosurgery, LLC.
Saulle consulted with Mr. Smoot on January 27, 2016. Dr.
Saulle noted in his report that Mr. Smoot had developed
symptoms in his low back approximately one year earlier and
suffered a recurrence of his symptoms on December 1, 2015.
Dr. Saulle reviewed the results of Mr. Smoot's MRI of the
lumbar spine and found that there is an obvious disc
herniation on the right side which is compressing the
traversing S1 nerve root against the posterior wall of the
lateral recess. Mr. Smoot was diagnosed with a herniated disc
at L5-S1 and lumbosacral radiculopathy.
March 8, 2016, the claims administrator rejected the claim.
The claims administrator determined that the claim does not
meet the guidelines for a compensable injury. Specifically,
the Order stated that Mr. Smoot failed to establish that he
sustained an injury in the course of and resulting from his
employment. Mr. Smoot protested the claims
Smoot was deposed on January 12, 2017, and testified that on
December 14, 2015, he responded to an apartment complex for a
patient who was having suicidal thoughts. The patient, who
was unable to stand or walk, weighed approximately 500
pounds. Mr. Smoot, and his partner Seth Peterson, had to
transfer her from a wheelchair to a cot. After the first
lift, Mr. Smoot noticed tightness in his back while loading
the patient into the ambulance. He immediately felt shooting
pain into his right leg. On cross-examination, when asked
about his prior back injuries, Mr. Smoot testified that he
had been in a motor vehicle accident while working his part
time job at the Teays Valley Fire Department and he did
receive treatment from his chiropractor, but it was for
stiffness following the accident. Mr. Smoot also testified
that he tweaked his back a year prior, around December 5,
2014, while responding to a fire in the South Hills area. At
that time, he sought treatment from his primary physician. He
did not experience radiating pain at the time, and his
symptoms alleviated after steroid treatment.
City of Charleston submitted various reports and argued that
Mr. Smoot has a history of back problems. The reports
indicate that Mr. Smoot sought treatment for his low back
pain from three different providers between December 9, 2015,
and January 27, 2016, for his various back conditions. The
McKinney Chiropractic Clinic treated Mr. Smoot on six
occasions in this time period and made no note regarding an
occupational injury. Dr. Bannister treated Mr. Smoot on
January 12, 2016, and reported that Mr. Smoot had experienced
symptoms for approximately three weeks with no known injury.
Mr. Smoot later consulted with Dr. Saulle, who noted that Mr.
Smoot's symptoms were a reoccurrence of a prior condition
that had resurfaced on December 1, 2015. The City of
Charleston argued that the evidence of record indicates that
Mr. Smoot has a history of symptomatic low back problems
associated with recreational weight lifting, which reoccurred
on or about December 1, 2015.
Order dated July 28, 2017, the Office of Judges found that
the record establishes the existence of an isolated,
fortuitous occurrence occurred in this case. The Office of
Judges also found that the preponderance of the evidence
shows that Mr. Smoot sustained a personal injury as a result
of his employment. The Office of Judges did not accept the
City of Charleston's argument that Mr. Smoot's
herniated disc and related symptoms existed a year prior to
the subject injury, and that Mr. Smoot had a reoccurrence of
the herniated disc on December 1, 2015. The Office of Judges
found that the record does not establish that Mr. Smoot had a
prior history of treatment for lumbar radiating pain.
Although Mr. Smoot had sought prior treatment for back pain,
the Office of Judges found that the record did not endorse a
finding of radiculitis until after December 14, 2015.
Accordingly, the Office of Judges concluded that Mr. Smoot
sustained an injury in the course of and as a result of his
employment on December 14, 2015, resulting in a lumbar disc
herniation with lumbar radiculopathy. The March 8, 2015,
Order of the claims administrator was reversed with
directions to hold Mr. Smoot's claim compensable for
lumbar disc herniation and lumbar radiculopathy.
December 28, 2017, the Board of Review adopted the findings
of fact and conclusions of law of the Office of Judges and
affirmed the finding of compensability for lumbar disc
herniation and lumbar radiculopathy. We agree with the Board
of Review's decision. The medical evidence supports the
conclusion that Mr. Smoot sustained an injury in the course
of and as a result ...