Appeal No. 2052207) (Claim No. 2017023833)
Melissa Webb, by Reginald D. Henry, her attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. 
issue on appeal is compensability. The claims administrator
rejected the claim on June 7, 2017. The Office of Judges
affirmed the decision in its September 12, 2017, Order. The
Order was affirmed by the Board of Review on February 23,
2018. 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
Webb, a cashier and merchandise stocker, alleges that she
injured her lower back in the course of her employment on
March 24, 2017, while unloading boxes and stocking shelves.
Ms. Webb has a long history of lower back problems. A lumbar
MRI taken on February 9, 2008, showed mild multilevel
degenerative facet arthropathy without significant
degenerative disc disease or stenosis. In April of 2009, Ms.
Webb was treated at Liberty Hospital in Missouri for low back
pain that radiated into the right leg. The diagnosis was
acute sciatica. On November 6, 2009, it was noted that Ms.
Webb had undergone an MRI of the lumbar spine, which showed a
bulging disc at L4-5 and facet joint degeneration at L5-S1.
notes from JayHawk Primary Care/Creekwood Family Care from
October of 2009 through April of 2010 indicate Ms. Webb was
treated multiple times for low back pain, sciatica, and
radiculopathy into the right leg. An MRI was performed on
November 3, 2009, and showed a slight disc bulge at L4-5.
Finally, a report of injury from the Missouri Department of
Labor indicates Ms. Webb injured her lower back at work on
July 26, 2015, while lifting boxes.
Webb first sought treatment for the alleged injury in the
instant claim on March 28, 2017. A treatment note from
Beckley ARH Hospital indicates Ms. Webb reported low back
pain on the right side radiating to mid-back. She stated that
the pain began on Friday after unloading a truck at work
alone and being on a ladder stocking lamps. A CT scan showed
minor bulges from L4 to S1 but no acute findings. She was
diagnosed with acute low back pain and given an injection and
Webb began treating with Syed Zahir, M.D., on March 31, 2017.
His treatment note indicates Ms. Webb injured her back on
March 24, 2017, while carrying a lot of boxes. She had
limited range of motion on examination, pain in the back, and
some numbness in the right lower leg. Dr. Zahir diagnosed
acute lumbosacral strain and possible herniated L4-5 and
L5-S1 discs. An MRI was recommended. On April 14, 2017, Ms.
Webb reported back pain and pain in both legs. On May 2,
2017, she stated that she had been having severe back pain.
Dr. Zahir's impression was herniated L4-5 and L5-S1 discs
with bilateral radiculitis. Dr. Zahir noted on May 23, 2017,
that Ms. Webb still needed an MRI as well as referral to a
neurosurgeon. On June 13, 2017, Ms. Webb was still reporting
a lot of back pain, radiation into both legs, and limitation
in range of motion. Dr. Zahir noted on June 29, 2017, that
the MRI showed evidence of a disc herniation at L5-S1,
bulging at L4-5, and hypertrophy. He recommended referral to
notes were taken by Janet Turner, for the claims
administrator, on April 12, 2017. They indicate Ms. Webb was
unloading a truck on March 24, 2017. It was a three person
truck but one person did not show up that day and the other
worked slowly. Ms. Webb alleged that she reported the injury
to Dean Cook two hours before her shift the following day.
She reported that the pain is on the right side of the middle
of her back from the waist up. She stated that she had never
injured that part of her back before. Ms. Webb alleged that
she reported her injury to four different managers and Sheila
told her to go home and rest.
report of injury was completed on April 25, 2017, in which
Ms. Webb indicated she was injured on March 24, 2017, while
unloading merchandise from a truck, stacking boxes, and
lifting boxes while on a ladder. Treatment was initially
sought at Beckley ARH Hospital on March 28, 2017. The
physician's section was completed on April 25, 2017, and
the diagnosis was listed as occupationally related low back
strain. The claims administrator rejected the claim on June
lumbar MRI was performed on June 19, 2017, and showed minimal
spurring and mild facet arthropathy at L2-3; mild ligamentum
flavum hypertrophy and facet arthropathy at L3-4; minimal
disc bulging, facet arthropathy, ligamentum flavum
hypertrophy, and mild canal stenosis at L4-5; and a shallow
central disc protrusion and facet arthropathy, at L5-S1. Dr.
Zahir opined in a June 27, 2017, treatment note that Ms. Webb
was totally disabled. He stated that she needs to be seen by
a neurosurgeon and, based on the MRI findings, may require
Webb testified in a deposition on July 14, 2017, that on the
day she was injured, she worked for nine hours unloading a
truck and stocking shelves. There were supposed to be three
people unloading that day but one called off and the other
only helped for a few hours. The boxes weighed between ten
and forty pounds. Ms. Webb stated that she had no back pain
prior to coming to work that day and that she had not been
taking any pain medication for her back from October of 2016
until the alleged injury on March 24, 2017. She alleged that
the injury was caused by stocking heavy lamps on a shelf that
required her to climb a ladder and lift the lamp over her
head. On the third lamp, she experienced severe, sharp pain
in her back. She called off of work the following day because
she was in too much pain. Ms. Webb stated that two days after
the injury, she reported to work and told Melissa Edwards,
general manager, that she had injured her back and wanted to
file a claim but no information was provided to her.
Webb testified that she has been seeing Dr. Zahir for the
injury since March 31, 2017. She denied ever having
experienced low back pain, such as it is now, prior to the
alleged March 24, 2017, injury. She asserted that she never
received communications from the employer or claims
administrator. Ms. Webb testified that she had never had an
MRI of her back until Dr. Zahir ordered one on June 19, 2017.
She denied any previous back injuries, though she did admit
to being treated for sciatica in the past. Ms. Webb alleged
that she told Dean Cook, the restaurant manager, that she
hurt her back the day that it happened. She told him again
the next morning and on March 26, 2017, she asserted that she
reported the injury to Melissa Edwards. She also reported the
injury to two other retail managers who were in the store
that day during inventory. Ms. Webb explained that she did
not seek medical treatment until March 28, 2017, because she
thought her back would improve with rest.
Dean Cook, associate manager, reported in a statement that
Ms. Webb never informed him that she injured her back on
March 24, 2017, while unloading boxes. He stated that if he
had been informed that she injured herself on the job, he