IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2018 Term
_______________ FILED
May 30, 2018
No. 17-0152 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
ARCH COAL, INC.,
Employer Below, Petitioner
v.
JIMMIE LEMON,
Claimant Below, Respondent
______________
Appeal from the West Virginia
Workers’ Compensation Board of Review
BOR No. 2051542,
JCN No. 2016026271
Claim No. 555-205723
_______________
MEMORANDUM DECISION WITHDRAWN,
BOARD OF REVIEW AFFIRMED
_______________
Submitted Upon Rehearing: May 15, 2018
Filed: May 30, 2018
Jeffrey M. Carder, Esq. Reginald D. Henry, Esq.
Jeffrey B. Brannon, Esq. Rodney A. Skeens, Esq.
Cipriani & Werner, P.C. Beckley, West Virginia
Charleston, West Virginia Counsel for Respondent
Counsel for Petitioner Arch Coal, Inc. Jimmie Lemon
JUSTICE KETCHUM delivered the Opinion of the Court.
SYLLABUS BY THE COURT
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).
Justice Ketchum:
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.
1
See, Arch Coal, Inc. v. Jimmie Lemon, No. 17-0152, 2017 WL 6503443, (W.Va.
December 19, 2017) (Memorandum Decision) (Workman, J. and Walker, J. dissenting).
2
Justice Davis and Justice Loughry would refuse the petition for rehearing.
1
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
2
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.
3
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 obtained
regarding the nature of Lemon’s low back injury.
Dr. Kominsky referred Lemon to Dr. Orphanos, M.D., of Neurological Associates,
Inc., who performed a discectomy on Lemon’s low back on June 24, 2016, following a pre
operative diagnosis of “right L4-5 far lateral disc herniation.” Later, Dr. Soulsby, M.D., of
Orthoclinic, PC, completed a Record Review and Opinion of Lemon’s condition. Dr.
Soulsby indicated that Lemon’s injury was not traumatic in origin. Rather, Lemon’s low
back condition was the consequence of progressive, pre-existing degenerative disc disease.
3
Based on the April 13, 2016, MRI of Lemon’s lumbar spine, Dr. Kominsky’s
reference in the Employees’ and Physicians’ Report to “DJD at L5-S-1" would indicate
degenerative joint disease at L5-S1.
4
Finally, an Age of Injury Analysis and MRI Comparison were conducted by Dr. Luchs, M.D.,
of Diagnostic Dating Specialists, LLC. Dr. Luchs compared the March 1, 2009, MRI with
the post-injury April 13, 2016, MRI and concluded that Lemon’s condition was due to a
progression of degenerative disc disease with chronic disc herniation at L4-5.4
Following an evidentiary hearing, the Administrative Law Judge of the Office of
Judges entered a decision on August 18, 2016, which reversed the decision of the Claim
Administrator and found the claim compensable. The Administrative Law Judge found
Lemon’s compensable condition to be a herniated disc at L4-5, which had required surgery.
The Administrative Law Judge noted that some evaluating physicians concluded that
Lemon’s condition was due to degenerative changes rather than a work-related injury.
4
Dr. Luchs expressed the opinion that the absence of certain factors suggested that
Lemon’s disc herniation predated the alleged April 6, 2016, injury. Dr. Luchs stated in
the MRI Comparison report:
Superimposed disc herniation at L4/5 is evident on the MRI dated
4/13/2016, which was not evident on the prior MRI dated 3/1/2009. The
disc herniation however does not demonstrate high signal in or around the
disc herniation, and there is no associated annular tear evident to suspect an
acute disc herniation. Therefore although this disc herniation was not
present on the prior exam, the disc herniation does however predate the
patient’s injury.
Lemon, however, testified before the Administrative Law Judge of the Office of
Judges that, prior to the April 6, 2016, incident, he was never diagnosed “with having a
ruptured disc or disc herniation.”
5
However, the Administrative Law Judge emphasized that, after the alleged injury, the April
13, 2016, MRI established that, in addition to the degenerative changes, Lemon exhibited a
right lateral disc herniation and disc bulge at L4-5 “causing right foraminal [passage]
encroachment and nerve root sheath impingement.” According to the Administrative Law
Judge, the disc herniation “could certainly explain the claimant’s assertions of severe low
back pain running down the right leg.”
On January 20 2017, the Workers’ Compensation Board of Review adopted the
findings and conclusions of the Administrative Law Judge and affirmed the Office of Judges’
August 18, 2016, decision. Arch Coal’s motion for reconsideration was denied.
Arch Coal filed an appeal in this Court from the January 20, 2017, decision of the
Board of Review.
III. The Memorandum Decision and
Lemon’s Petition for Rehearing
On December 19, 2017, this Court issued a Memorandum Decision in which we
determined that the evidence showed that Lemon did not sustain a work-related injury on
April 6, 2016. Consequently, this Court reversed the Board of Review and directed that the
Claim Administrator’s April 29, 2016, rejection of the claim be reinstated.
6
Noting Lemon’s long history of back problems, this Court stated as follows:
[Lemon] previously had a disc bulge at L4-5, as seen on the March
2009 MRI. The April 2016 MRI showed that disc had herniated. Though
Dr. Orphanos noted that Mr. Lemon was injured at work, Dr. Soulsby
opined in his record review that he found no evidence of any significant
injury on the date in question and stated that Mr. Lemon’s symptoms are the
result of his preexisting back conditions. Dr. Luchs, who performed both a
comparison and an aging analysis report, determined that the herniated disc
is the result of the typical progression of degenerative disc disease and
interval development of what appears to be a chronic disc herniation at L4
5.
Lemon filed a petition for rehearing from the Memorandum Decision, asserting that
this Court failed to afford proper deference to the findings of the Administrative Law Judge
and Board of Review. In March 2018, this Court granted a rehearing in the case.5
IV. Standard of Review
This Court’s standard of review in workers’ compensation cases is provided by
statute. W.Va. Code, 23-5-15(b) [2005], states that deference shall be given to the Board of
Review’s “findings, reasoning and conclusions.” In the current matter, by affirming the
Office of Judges, the Board of Review effectively reversed the denial of the claim by the
Claim Administrator. Thus, subsection (d) of the statute is applicable which provides a
detailed basis for reviewing the Board of Review’s decision:
5
See, this Court’s order of March 16, 2018, granting Lemon’s petition for
rehearing, Justice Davis and Justice Loughry would refuse.
7
(d) If the decision of the Board effectively represents a reversal of a
prior ruling of either the commission or the Office of Judges that was
entered on the same issue in the same claim, the decision of the board may
be reversed or modified by the Supreme Court of Appeals only if the
decision is in clear violation of constitutional or statutory provisions, is
clearly the result of erroneous conclusions of law, or is so clearly wrong
based upon the evidentiary record that even when all inferences are
resolved in favor of the board’s findings, reasoning and conclusions, there
is insufficient support to sustain the decision. The court may not conduct a
de novo re-weighing of the evidentiary record.
Subsection (d) of W.Va. Code, 23-5-15 [2005], provides further:
If the court reverses or modifies a decision of the board pursuant to
this subsection, it shall state with specificity the basis for the reversal or
modification and the manner in which the decision of the board clearly
violated constitutional or statutory provisions, resulted from erroneous
conclusions of law, or was so clearly wrong based upon the evidentiary
record that even when all inferences are resolved in favor of the board’s
findings, reasoning and conclusions, there is insufficient support to sustain
the decision.
Cf., Wilkinson v. West Virginia Office Ins. Comm’n, 222 W.Va. 394, 398, 664 S.E.2d 735,
739 (2008) (applying a different subsection of W.Va. Code, 23-5-15 [2005], where the Board
affirmed both the Commission and the Office of Judges).
With those principles in mind, we reconsider the Board of Review’s decision, this
Court’s December 19, 2017, Memorandum Decision, and Lemon’s petition for rehearing.
8
V. Discussion
Pursuant to W.Va. Code, 23-4-1(a) [2008], workers’ compensation benefits shall be
paid to employees “who have received personal injuries in the course of and resulting from
their covered employment.”6 Moreover, W.Va. Code, 23-4-1g(a) [2003], provides that any
issue regarding benefits involving the weighing of evidence shall be resolved by a
preponderance of the evidence. Thus, this Court held in syllabus point 2 of Gill v. City of
Charleston, 236 W.Va. 737, 783 S.E.2d 857 (2016): “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.” In the case before us, the
Administrative Law Judge’s finding of compensability was based on the preponderance of
the evidence standard.
The Memorandum Decision incorrectly stated the issue before this Court in terms of
whether Lemon’s low back injury “was properly found to be non-compensable.” The issue,
properly stated, is whether the decision of the Board of Review, favorable to Lemon and
based on the evidentiary findings of the Administrative Law Judge, should be affirmed,
reversed or modified pursuant to the standard of review set forth in W.Va. Code, 23-5-15
6
See, syl. pt. 1, Barnett v. State Workmen’s Compensation Comm’r, 153 W.Va.
796, 172 S.E.2d 698 (1970) (“In order for a claim to be held compensable under the
Workmen’s Compensation Act, three elements must coexist: (1) a personal injury (2)
received in the course of employment and (3) resulting from that employment.”
(Emphasis in the original.)).
9
[2005]. Subsection (b) of that statute requires this Court to give deference to the Board’s
“findings, reasoning and conclusions.” Moreover, where this Court reverses the Board, as
in the case of the Memorandum Decision herein, subsection (d) of the statute requires this
Court to state “with specificity” the reason for the reversal and why the Board “was so clearly
wrong based upon the evidentiary record that even when all inferences are resolved in favor
of the board’s findings, reasoning and conclusions, there is insufficient support to sustain the
decision.” The Memorandum Decision does not include that analysis. Instead, the
Memorandum Decision reveals an inappropriate re-weighing of the evidentiary record.
This Court’s holding in the Memorandum Decision to reinstate the ruling of the Claim
Administrator rested largely on the degenerative disc disease discussions of Dr. Soulsby in
the Record Review and Dr. Luchs in the Age of Injury Analysis and MRI Comparison. It is
undisputed that Lemon had a history of degenerative disc disease and prior workers’
compensation claims involving back problems. The Memorandum Decision, however, does
not address Dr. Kominsky’s statement that, with respect to the April 6, 2016, incident, the
MRI “indicates a new injury at L4-5 with nerve root compression.” The medical evidence
is virtually unanimous in establishing that Lemon did not have a herniated disc prior to April
6, 2016. Moreover, Lemon notes in the petition for rehearing that in the Memorandum
Decision this Court
10
does not observe that Dr. Orphanos is a neurosurgeon and that he had
“direct” vision of the damaged disc in the Claimant’s low back as he
performed surgery thereon. At no time did Dr. Orphanos suggest that the
herniation was not traumatic in nature.
The Administrative Law Judge and the Board of Review, therefore, concluded with
factual justification that Lemon suffered a new, work-related injury at L4-5 in addition to his
preexisting degenerative joint disease and prior workers’ compensation claims (none of
which involved a herniated disc).7
In syllabus point 3 of Gill v. City of Charleston, 236 W.Va. 737, 783 S.E.2d 857
(2016), this Court held:
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.
(Emphasis added). Accord, Crouse v. JKM Enterprises, Inc., LWF, No. 17-0450, 2017 WL
6049278, (W.Va. November 22, 2017) (Memorandum Decision); SWVA, Inc., v. Birch, 237
W.Va. 393, 398 n. 5, 787 S.E.2d 664, 669 n. 5 (2016).
7
See generally, Vol. 3, Larson’s Workers’ Compensation Law, Digest § 43.02D[2]
n. 10 [2014] (collecting cases discussing the compensability of a ruptured or herniated
disc alleged to be work-related ).
11
In addition to the medical evidence, the Administrative Law Judge and Board of
Review considered other matters indicative of compensability. Although Lemon initially
expressed uncertainty concerning when and how the injury occurred, he went to the doctor
the following morning after April 6, 2017, and then reported to work with a noticeable limp,
stating that his back was killing him. Several days later, he 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.” The Administrative Law Judge stated:
The claimant’s sworn testimony noted that his shift was to be over at
12:20 [a.m.], but that at 8:30 p.m. he was running a solid rubber tire ride
when he hit a bump that threw him out of his seat and he came back down
and had pain in his back and leg. He notes that he called his boss, Donnie
Crum around 10:30 [p.m.] and told him he was leaving. He noted he had
hurt himself a little bit. * * * One factual situation that is found to be
positive for the claimant is that there was no contradictory evidence
concerning the fact that the claimant had to leave work approximately two
hours early on the day he alleged he was injured.
This Court is of the opinion that the decision of the Board of Review which affirmed
the Office of Judges is supported by the evidence of record and should be upheld. As the
Administrative Law Judge determined, the preponderance of the evidence shows that Lemon
left his shift early on April 6, 2016, upon sustaining a compensable, discreet new injury, i.e.,
a herniated disc at L4-5.8
8
See, syl. pt. 1, Jordan v. State Workmen’s Compensation Comm’r, 156 W.Va.
159, 191 S.E.2d 497 (1972):
12
VI. Conclusion
The Memorandum Decision filed December 19, 2017, is withdrawn. The January 20,
2017, decision of the Board of Review is affirmed, and this case is remanded with directions
to reinstate the January 20, 2017, decision of the Board of Review which affirmed the August
18, 2016, decision of the Office of Judges holding that Lemon’s claim is compensable, with
his designated compensable condition as a herniated disc at L4-5.
Memorandum Decision Withdrawn,
Board of Review Affirmed.
The question in a workmen’s compensation case as to whether the
employment aggravated or, combined with the internal weakness or
infirmities of claimant to produce the injury, is a question of fact, not law,
and a finding of the Workmen’s Compensation Appeal Board on this
question will not be disturbed on appeal by this Court, unless such finding
is plainly wrong.
13