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Webb v. Cracker Barrel Old Country Store, Inc.

Supreme Court of West Virginia

July 20, 2018

MELISSA WEBB, Claimant Below, Petitioner

          (BOR Appeal No. 2052207) (Claim No. 2017023833)


         Petitioner Melissa Webb, by Reginald D. Henry, her attorney, appeals the decision of the West Virginia Workers' Compensation Board of Review. [1]

         The 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.

         This 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 Procedure.

         Ms. 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.

         Treatment 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.

         Ms. 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 medications.

         Ms. 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 a neurosurgeon.

         Claim 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.

         A 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 7, 2017.

         A 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 surgery.

         Ms. 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.

         Ms. 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.

         Kelvin 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 ...

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