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Arch Coal, Inc. v. Lemon

Supreme Court of West Virginia

May 30, 2018

ARCH COAL, INC., Employer Below, Petitioner
v.
JIMMIE LEMON, Claimant Below, Respondent

          Submitted Upon Rehearing: May 15, 2018

          Appeal from the West Virginia Workers' Compensation Board of Review BOR No. 2051542, JCN No. 2016026271 Claim No. 555-205723

          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

         SYLLABUS

         1."Pursuant 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).

         2. "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).

          OPINION

          Ketchum, Justice

         This 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 rejected.[1]

         On March 16, 2018, this Court granted Lemon's petition for rehearing, and on May 15, 2018, argument on the petition was heard.[2] 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 Therefore, the December 2017 Memorandum Decision is withdrawn, the decision of the Board of Review is affirmed, and this case is remanded with directions to reinstate the decisions of the Office of Judges and the Board of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.

         I. Factual Background

         Lemon 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.

         According 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.

         On 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.

         An MRI 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 accident report.

         According 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

         On 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."[3]

         The 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 ...


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