THE L.E. MYERS COMPANY, Employer Below, Petitioner
JOEL A. BEHNKEN, Claimant Below, Respondent
Appeal No. 2052241) (Claim No. 2015034136)
The L.E. Myers Company, by Lisa Warner Hunter, its attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. Joel A. Behnken, by Lawrence B.
Lowry, his attorney, filed a timely response.
issue on appeal is compensability. The claims administrator
rejected the claim on December 3, 2015. The Office of Judges
reversed the decision in its September 14, 2017, Order and
held the claim compensable for lumbosacral neuritis. The
Order was affirmed by the Board of Review on February 26,
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
Behnken, a lineman, was injured in the course of his
employment on June 15, 2015, while holding a steel plate in
place while bent over. Mr. Behnken has a history of lower
back problems. A lumbar MRI was performed on January 18,
2011, for a history of low back pain radiating into the left
leg since a May 27, 2009, work injury. The MRI showed disc
bulges with tears at L4-5 and L5-S1. The L5-S1 disc had a
large herniation that was severely compromising the left
lateral recess and most likely the S1 nerve root. Mr. Behnken
underwent a lumbar laminectomy for an L5-S1 disc herniation
on February 24, 2011.
March 14, 2013, another lumbar MRI was performed. It showed a
large disc herniation at L5-S1 impinging on the S1 nerve
root. This was unchanged from the previous MRI. It was noted
by Ronald Fadell, M.D., the interpreting physician, that this
could show a recurrent or residual disc herniation since Mr.
Behnken had undergone lumbar surgery between MRIs. Mr.
Behnken sought treatment at Dayton VA Medical Center on April
16, 2013. He reported to Toban Raghdaa, M.D., that he had
lower back pain that radiated into both legs. It was noted
that he had lower back pain for two years and underwent
surgery in 2011. Dr. Raghdaa diagnosed chronic low back pain.
May of 2013 treatment notes from Dayton VA Medical Center
indicate Mr. Behnken reported a history of back pain starting
in 1995. He reinjured his back in 2009 and had surgery in
2011. Mr. Behnken's leg pain improved after surgery but
had worsened over the previous two years. He was diagnosed
with low back pain with radiculopathy. On May 31, 2013, the
diagnoses changed to chronic low back pain and acute thoracic
Behnken had a lumbar MRI on November 26, 2013, which showed a
leftward disc herniation at L5-S1 that was smaller and showed
less stenosis than the March 2013 MRI. The impression was
improvement in the L5-S1 herniated disc. On February 10,
2015, Channhu Trinh, M.D., indicated Mr. Behnken reported
worsening back pain over the last week as well as loss of
bowel control four to five times in the last four months. He
reported shooting pain in both legs. Dr. Trinh diagnosed
worsening low back pain with bowel incontinence. A lumbar MRI
was taken on April 23, 2015, that showed a mild disc bulge at
L4-5 and a disc bulge at L5-S1 compromising the S1 nerve
root. The findings were stable compared to the prior November
of 2013 MRI. On May 6, 2015, Ziad Khatrib, M.D., indicated
that Mr. Behnken reported the new problem of pain in his left
toes. He also complained of chronic and persistent lumbar
the injury at issue in the instant case, Mr. Behnken sought
treatment at Beavercreek Medical Center Emergency Room on
June 16, 2015. The notes indicate he presented with back pain
and numbness in both feet due to an injury he sustained the
previous day. He reported that he was holding a piece of
steel in a bent over position and felt discomfort when he
stood up. A lumbar CT scan showed degenerative changes at
L5-S1 and a calcified disc bulge with effacement of the
epidural space and lateral recess. Mr. Behnken was diagnosed
with low back pain without sciatica. A treatment note by Dr.
Khatrib dated June 17, 2015, indicates Mr. Behnken reported
worsening back pain for the past week.
statements were submitted regarding the June 15, 2015,
injury. James Isenberg and Danny Dixon stated that Mr.
Behnken informed them on June 15, 2015, that he wanted to
return to his hotel room, take some medication, and lie down
because his back was hurting. David Scruggs indicated that on
June 15, 2015, Mr. Dixon, Mr. Isenberg, and Mr. Behnken were
working on a steel tower. After holding a steel plate that
weighed 26.6 pounds, Mr. Behnken asked Mr. Isenberg if he
could return to his hotel to lay down and take medication for
his back. Mr. Scruggs called Mr. Behnken and asked about the
problem. Mr. Behnken explained that his back hurt and that he
needed to lie down but did not mention an injury sustained at
work. The following day, Mr. Behnken called Mr. Scruggs to
say that he was going to the doctor for a back injury he
sustained the previous day. Mr. Behnken also filed an
incident report that morning.
Cross stated that he arrived at the work site the day after
Mr. Behnken was injured. Mr. Behnken called Mr. Scruggs that
day and told him he hurt his back the day before and needed
to see a doctor. Mr. Behnken arrived at the office that
morning to complete the incident report and was in too much
pain to leave his vehicle. He completed an incident report
and stated that he was holding a plate while seated and his
back started to hurt. Mr. Pence asked several times if the
injury happened at work but Mr. Behnken did not answer.
Fox noted in a statement that he was informed on June 15,
2015, that Mr. Behnken's back tightened up and that it
happened regularly. Mr. Behnken requested permission to go to
his hotel room, take medication, and relax. Mr. Scruggs
called Mr. Behnken that day and Mr. Behnken reported that it
was not a work-related problem. The following day, Mr.
Behnken called Mr. Scruggs and told him that he hurt his back
at work. Mr. Fox talked to Mr. Behnken the following day,
June 16, 2015, and Mr. Behnken told him that he was holding a
plate in place when he hurt his back. Mr. Behnken did not
mention an injury to his co-workers.
Pence stated that Mr. Behnken came to the office on June 16,
2015, and spoke with Mr. Pence. He told Mr. Pence that he had
undergone back surgery in the past and that sometimes his
back tightens and he needs to lay down. Mr. Pence asked Mr.
Behnken if he was injured on the job but Mr. Behnken did not
answer. Mr. Pence had Mr. Behnken complete an incident
report. In the incident report, Mr. Behnken stated that he
developed lower back pain after holding a steel plate. He did
not report that to Mr. Pence when they talked the following
the June 15, 2015, injury, Mr. Behnken sought treatment for
his lower back and legs. A June 22, 2015, treatment note by
Lisa Parsons, CNP, indicates he reported an exacerbation of
his low back pain and radiculopathy into the legs. Mr.
Behnken reported that the exacerbation happened at work on
June 15, 2015, while he was holding a piece of steel. Ms.
Parsons noted a prior herniated disc and lumbar surgery in
2011. An MRI was taken on June 30, 2015, and compared to the
prior April of 2015 study. Phillip Lanham, M.D., interpreted
the results as showing a progression of the L5-S1 central
canal stenosis with impingement on the S1 nerve root. The
L5-S1 disc appeared to have an extruded disc fragment. There
was mild bilateral neural foraminal narrowing and
degenerative changes at L4-5.
Paley, M.D., noted in a July 10, 2015, treatment note that
Mr. Behnken was seen for a work-related low back injury
sustained on June 15, 2015. Mr. Behnken stated that he
developed severe back pain while holding a piece of steel in
a bent over position. It was noted that he had a previous low
back injury and surgery in 2010. Mr. Behnken had been working
with no problems until June 15, 2015. On examination, his
lumbar range of motion was significant hindered. Dr. Paley
opined that Mr. Behnken suffered lumbosacral neuritis as a
direct result of his work-related injury. He noted that while
Mr. Behnken had prior low back problems, he was ...