Appeal No. 2052158, (Claim No. 2016016569)
Asplundh Tree Expert Company, by Melissa M. Robinson, its
attorney, appeals the decision of the West Virginia
Workers' Compensation Board of Review. John Lafon, by
Gregory S. Prudich, his attorney, filed a timely response.
issue on appeal is whether or not Mr. Lafon's claim was
timely filed. The claims administrator rejected the claim for
workers' compensation benefits in an Order dated January
13, 2016. The Workers' Compensation Office of Judges
affirmed the claims administrator's Order on August 17,
2017. This appeal arises from the Board of Review's Order
dated February 2, 2018, in which the Board reversed and
vacated the Order of the Workers' Compensation Office of
Judges. The Board of Review modified the date of injury in
the claim to be May 26, 2015, and the claim was found to be
timely filed. The Board of Review remanded the case to the
claims administrator with instructions to issue a protestable
order on the merits of the compensability of the claim with a
date of injury of May 26, 2015. The Court has carefully
reviewed the records, written arguments, and appendices
contained in the briefs, and the case is mature for
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
Lafon, a groundsman for the Asplundh Tree Expert Company,
injured his left knee on May 26, 2015. Following the injury,
Harold Bailey, the immediate supervisor, accompanied Mr.
Lafon to MedExpress in Bluefield, Virginia. Mr. Lafon was
treated by Stephen Sylvester, PAC, who reviewed x-rays and
concluded that he suffered a knee sprain. Harold Bailey paid
for the medical services under Asplundh's "first
aid" process, and no workers' compensation claim was
Lafon continued treatment with MedExpress from May 26, 2015,
through November 27, 2015. On June 12, 2015, he was seen by
Philip Roberts, M.D., for a follow-up evaluation. Mr. Lafon
reported that his knee felt unstable when walking. The
assessment was sprain/strain of the left knee/lower leg. Mr.
Lafon once again reported to MedExpress on July 14, 2015,
where he was seen by Denise Clay, M.D., for his continued
knee pain. After examination, Dr. Clay referred Mr. Lafon for
an orthopedic evaluation.
Lafon was evaluated by orthopedic surgeon Walid H. Azzo,
M.D., on August 20, 2015. Mr. Lafon reported to the
evaluation with a complaint that his left knee was locking up
while walking and participating in physical activities. Mr.
Lafon reported that the left knee symptoms started on May 26,
2015, the day he suffered his injury. The diagnosis was
medial meniscal tear and possible tear of the knee cruciate
ligament. Dr. Azzo recommended that Mr. Lafon undergo an MRI
of the left knee to rule out an anterior cruciate ligament
tear. Once again, Howard Bailey accompanied Mr. Lafon to his
medical evaluation. Mr. Bailey, again, paid the medical bill
using Asplundh's "first aid" plan.
witness statement dated August 21, 2015, Ernest Winterford
stated that on the day that Mr. Lafon fell, he was trimming
trees two spans away when he received a call from Travis
Brown saying that Mr. Lafon had injured his knee. Mr.
Winterford notified the general foreman because Mr. Lafon
eventually believed that he should seek medical attention.
The general foreman advised Mr. Winterford to document
everything with photos.
Lee Brown also provided a witness statement dated August 21,
2015. Mr. Brown stated that he witnessed Mr. Lafon injure his
knee while working. Mr. Lafon was flushing a stob, and then
Mr. Brown heard Mr. Lafon crying because he had injured his
knee. Mr. Brown called the foreman to inform him of Mr.
Lafon's injury. They helped him off of the hill. Mr.
Brown also stated that the general foreman took Mr. Lafon to
seek medical attention.
Steven McHale also was a witness following Mr. Lafon's
injury on May 26, 2015, and submitted a witness statement
dated August 21, 2015. Mr. McHale stated that he was a
witness to Mr. Lafon's condition after the incident. Mr.
McHale stated that while stumping with one knee on the
ground, Mr. Lafon sought better footing. Upon lifting his
knee from the ground, he was injured. Mr. McHale stated that
Mr. Lafon was on the crew for a time because of previous
light duty work. Mr. McHale opined that he believed Mr. Lafon
did not want to perform the work.
Lafon continued to have complaints in his left knee,
including instability, swelling, pain, and clicking and
popping in his knee. He continued to work under his
limitations until November 18, 2015, when he was seen at
MedExpress by Kristen Youther, FNP-BC, for increased symptoms
of his left knee pain. A Medical Excuse Form was provided
dated November 18, 2015, stating that he may return to work
on January 19, 2016, with restrictions of light duty work
with minimal walking for one week. On November 19, 2015, Mr.
Lafon filed an application for benefits, alleging that a left
knee injury had occurred on November 18, 2015.
Order dated January 13, 2016, the claims administrator denied
the application for benefits dated November 19, 2015. The
Order stated that the decision was based on the fact that the
actual date of injury was May 26, 2015, and the medical
documentation submitted was to support a May 26, 2015, date
of injury. The claims administrator concluded that the claim
was submitted outside the six-month window to file a claim in
West Virginia. Mr. Lafon protested the claims
Lafon testified at a deposition on June 17, 2016. He
testified that he was an employee of Asplundh Tree Company
for two years as a trimmer, and he worked a traffic truck
with American Electric Power. In the course of doing his
work, he was required to get out into the terrain and work up
and down hills. On May 26, 2015, he bent down in a weird
angle and when he stood up, his knee locked. When he realized
he hurt himself, he asked for help from his co-workers. His
foreman, Shawn Booth, provided assistance in trying to get to
his truck. Mr. Lafon testified that he could barely make it
due to the terrain. Mr. Booth called Howard Bailey, their
boss. Mr. Bailey came to the site and drove Mr. Lafon to
MedExpress in Bluefield, Virginia. Mr. Lafon testified that
Mr. Bailey paid for the necessary medical services. Mr. Lafon
testified that he did not file a workers' compensation
claim that day because Mr. Bailey pretty much talked him out
of it. According to Mr. Lafon's testimony, Mr. Bailey
told him that the company would take care of it, and it was
part of the company's "first aid" plan. Mr.
Lafon had x-rays and was referred to an orthopedic surgeon.
He returned to work but continued to have difficulties with
his knee injury.
his deposition, Mr. Lafon testified that he never had any
left knee problems prior to his May 26, 2015, injury.
Following the injury of May 26, 2015, he continued to have
complaints of pain in his left knee, instability, swelling,
and a clicking sensation in his knee. He was placed on light
duty due to the injury. Mr. Lafon stated that he went back to
MedExpress on November 18, 2015, because he reinjured his
knee when he awkwardly stepped on a slight incline while
getting out of his truck. He stated that he thought it was a
continuation of his left knee condition. He filed a