Submitted Upon Rehearing: May 15, 2018
from the West Virginia Workers' Compensation Board of
Review BOR No. 2051542, JCN No. 2016026271 Claim No.
Jeffrey M. Carder, Esq. Jeffrey B. Brannon, Esq. Cipriani
& Werner, P.C. Charleston, West Virginia Counsel for
Petitioner Arch Coal, Inc.
Reginald D. Henry, Esq. Rodney A. Skeens, Esq. Beckley, West
Virginia Counsel for Respondent Jimmie Lemon
to W.Va. Code § 23-4-1g(a) (2003) (Repl. Vol. 2010), a
claimant in a workers' compensation case must prove his
or her claim for benefits by a preponderance of the
evidence." Syl. pt. 2, Gill v. City of
Charleston, 236 W.Va. 737, 783 S.E.2d 857 (2016).
"A noncompensable preexisting injury may not be added as
a compensable component of a claim for workers'
compensation medical benefits merely because it may have been
aggravated by a compensable injury. To the extent that the
aggravation of a noncompensable preexisting injury results in
a discreet new injury, that new injury may be found
compensable." Syl. pt. 3, Gill v. City of
Charleston, 236 W.Va. 737, 783 S.E.2d 857 (2016).
workers' compensation claim concerns a low back injury
the claimant, Jimmie Lemon, maintains occurred in the course
of and resulting from his employment with Arch Coal, Inc. The
Office of Judges found the claim compensable and designated
Lemon's compensable condition as a herniated disc at
L4-5. The decision of the Office of Judges was affirmed by
the Workers' Compensation Board of Review. On appeal,
however, this Court concluded that Lemon's injury was not
work-related. Consequently, in a Memorandum Decision filed in
December 2017 this Court reversed the Board of Review and
remanded the case with directions that the claim be
March 16, 2018, this Court granted Lemon's petition for
rehearing, and on May 15, 2018, argument on the petition was
heard. Upon reconsideration, this Court upholds
the prior administrative finding that, based on the
preponderance of the evidence, Lemon's injury was
work-related. Therefore, the December 2017 Memorandum
Decision is withdrawn, the decision of the Board of Review is
affirmed, and this case is remanded with directions to
reinstate the decisions of the Office of Judges and the Board
of Review that Lemon's claim is compensable, with his
designated compensable condition as a herniated disc at L4-5.
was a general laborer who worked underground at a mine site
operated by Arch Coal. Workers' compensation records show
prior claims regarding his back. One of those claims resulted
in an MRI of Lemon's lumbar spine conducted on March 1,
2009, which revealed "mild concentric bulging" of
Lemon's L4-5 and L5-S1 intervertebral discs, with
"[n]o lumbar intervertebral disk herniation or spinal
stenosis identified." Referring to the MRI, Dr. Patel,
an orthopaedic spine surgeon, indicated that surgery was not
warranted at that time.
to Lemon, the injury regarding the present claim occurred
later on April 6, 2016. Lemon states that he was driving a
shuttle car on a rough section of underground terrain when
the car hit a large hole, causing a jarring or impact injury
to his low back. Lemon told his foreman that he had hurt
himself and needed to go home early and that he would see a
doctor the next morning.
April 7, 2016, Lemon saw Dr. Kominsky, a chiropractic
physician, who determined that Lemon had a lumbar disc
protrusion with nerve root compression. Dr. Kominsky
recommended that Lemon undergo an MRI scan. Later that day,
Lemon reported to General Mine Foreman Ronald Price and
stated that the doctor told him to take it easy at work.
According to Price, Lemon was moving slow with a noticeable
limp and stated that his back was killing him. However, Lemon
said he did not know how he hurt his back. Price did not let
Lemon work underground that day and told Lemon to report back
after his next doctor appointment.
of Lemon's lumbar spine was conducted on April 13, 2016,
which revealed the following: "Right lateral disc
herniation and disc bulge at L4-5 causing right foraminal
[passage] encroachment and nerve root sheath impingement.
Degenerative disc and joint disease at L5-S1 without
significant canal or foraminal encroachment." Later, on
April 13, 2016, Lemon reported to the mine site and,
referring to the MRI, stated that he wanted to fill out an
to the April 13, 2016, statements of Foreman Price and Mine
Manager Kenneth Evans, Lemon indicated that his back problem
was due to wear and tear over the years. Thus, Lemon could
not determine when the present injury occurred. Price noted,
however, that Lemon recalled that when "running a
shuttle car his back was hurting so bad he couldn't
hardly breathe and had a shift foreman bring him out
early." An April 13, 2016, statement of Assistant
General Mine Foreman Donnie Crum related that Lemon said that
his back problem was due to a previous injury when he was
young and that on April 1, 2016, (prior to the alleged injury
of April 6, 2016, ) Lemon stated that he did not hurt his
back while on the job.
II. Administrative Background
April 20, 2016, Lemon completed the Employees' and
Physicians' Report of Occupational Injury or Disease.
Lemon stated in the Report that the injury occurred on April
6, 2016, and was caused when the vehicle he was operating hit
a hole in the rough terrain on his employer's premises.
Dr. Kominsky completed the physician's portion of the
Report and, designating Lemon's injury as occupational,
stated: "MRI indicates a new injury at L4-5 with nerve
root compression / DJD at L5-S1."
Claim Administrator denied the claim on April 29, 2016, on
the basis that Lemon's injury was not work-related.
Thereafter, additional medical reports were ...