FILED
October 4, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
EMILY A. FISHER,
Claimant Below, Petitioner
vs.) No. 20-0666 (BOR Appeal No. 2055222)
(Claim No. 2020011600)
RALEIGH COUNTY COMMUNITY
ACTION ASSOCIATION, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Emily A. Fisher, by counsel Reginald D. Henry, appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). Raleigh County
Community Action Association, Inc. (“RCCAA”), by counsel James W. Heslep, filed a timely
response.
The issue on appeal is compensability of the claim. The claims administrator rejected the
claim on November 22, 2019. On March 4, 2020, the Workers’ Compensation Office of Judges
(“Office of Judges”) affirmed the claims administrator’s rejection of the claim. This appeal arises
from the Board of Review’s Order dated July 30, 2020, in which the Board affirmed the decision
of the Office of Judges.
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.
The standard of review applicable to this Court’s consideration of workers’ compensation
appeals has been set out under W. Va. Code § 23-5-15, in relevant part, as follows:
(b) In reviewing a decision of the board of review, the supreme court of appeals
shall consider the record provided by the board and give deference to the board’s
findings, reasoning and conclusions.
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(c) If the decision of the board represents an affirmation of a prior ruling by both
the commission and 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 provision, is clearly the result of erroneous conclusions
of law, or is based upon the board’s material misstatement or mischaracterization
of particular components of the evidentiary record. The court may not conduct a
de novo re-weighing of the evidentiary record.
See Hammons v. W. Va. Off. of Ins. Comm’r, 235 W. Va. 577, 582-83, 775 S.E.2d 458, 463-64
(2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission,
230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions
of law arising in the context of decisions issued by the Board. See also Davies v. W. Va. Off. of
Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011).
Ms. Fisher, a Head Start teacher for RCCAA, sought medical treatment at MedExpress
on November 1, 2019, reporting that she hurt her back while carrying a computer up a flight of
stairs at work. The pain was midline in the lower thoracic area and on both sides of the lumbar
spine. Jessica Wickline, D.O., diagnosed Ms. Fisher with thoracic spine compression fracture
and lumbar sprain. A Preliminary Radiology Report, signed by Dr. Wickline, noted preliminary
findings to be muscle spasm and possible compression fracture. A Teleradiology Specialists
lumbar spine x-ray read by Charles Hales, M.D., subsequently showed no compression fracture
or acute abnormality.
An Employees’ and Physicians’ Report of Occupational Injury or Disease was signed by
Ms. Fisher on November 1, 2019, indicating she injured her back while carrying computers up a
flight of stairs. A representative of the MedExpress staff completed the physician’s section,
noting diagnoses of thoracic compression fracture and lumbar muscle spasm resulting from an
occupational injury. Ms. Fisher was placed on a modified work schedule until November 2,
2019. She returned to MedExpress on November 4, 2019, for a follow-up evaluation, reporting
that the medications helped but the “almost unbearable” pain would return in a few hours. She
was referred for an MRI.
On November 5, 2019, RCCAA Head Start Supervisor, Ronda Meadows, reported in an
email sent to an unknown recipient that Ms. Fisher had left work early two weeks earlier with a
report of back pain. 1 Ms. Meadows stated:
“Emily came to me 2 weeks ago saying her back was hurting. She had just
returned from a bus run. I asked if she had picked up something or twisted it. She
said no. She didn’t know why it was hurting. She left work a few minutes early.
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A Personnel Activity Report, signed by Ms. Fisher on October 22, 2019, indicated that
she left work early on Friday, October 18, 2019. A handwritten notation on this documentation
stated, “[l]eft early due to back pain.”
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She came to me last week again saying her back was hurting and she didn’t know
why. I told her to go home and go to the doctor. She did not say she hurt it lifting
anything.”
In an email dated November 6, 2019, Ms. Meadows stated:
“Emily Fisher came to me 2 weeks ago and said she hurt her back. I told her we
needed to file an incident/accident report and she said she didn’t hurt it here. She
wanted to leave a few minutes early.
She came back up to my office on Friday, 11/1 and said her back was hurting.
Again she said she didn’t do it here. It had ‘progressively gotten worse since last
week’ she told me. I encouraged her to go to a doctor. I did say it could be a
kidney stone or anything. She left my office stating she would go to MedExpress
and keep me posted.”
Ms. Fisher provided a recorded statement to the claims administrator on November 6,
2019, during the claims administrator’s investigation of the alleged injury. She reported that she
had injured her back while carrying a computer at work on November 1, 2019. Ms. Fisher denied
having left work two weeks earlier because of back pain. After investigating the claim, the
claims administrator rejected the application for benefits on November 22, 2019. It was
determined that there was no evidence of an isolated, fortuitous event resulting in a discreet
injury in the course of and in the scope of employment. Ms. Fisher protested the claims
administrator’s Order and elected to enter the expedited adjudication process before the Office of
Judges.
Ms. Fisher returned to MedExpress on November 12, 2019, reporting that she had not
had any relief from back pain. She was still waiting for an MRI. After examination, the
assessment was low back pain and sprain of ligaments of the thoracic spine. She was given pain
medication and was scheduled for an MRI on December 3, 2019. A Workers’ Compensation
Duty Form indicated that she could return to modified duty on November 20, 2019. A report
from Community Radiology dated December 6, 2019, noted that the MRI of the thoracic spine
showed no acute fractures of the thoracic vertebrae. No significant deformities were seen;
particularly no focal lesions of an acute or chronic nature involving T11 and T12 vertebrae.
Paravertebral soft tissues did not show any acute findings.
Ms. Fisher completed interrogatories on January 17, 2020. She indicated that her only
workers’ compensation claim was for a back injury on November 1, 2019, and noted her
treatment to have been muscle relaxers and physical therapy. She further stated that she had no
prior injuries, conditions, or other problems regarding her back.
An expedited hearing in this matter occurred on February 6, 2020. At the hearing, Ms.
Fisher stated that her back pain developed progressively on November 1, 2019, after she carried
a computer upstairs and subsequently sat on the floor to plan lessons with another teacher. She
also testified that prior to November 1, 2019, she had never sustained any injuries to her mid or
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lower back, nor had she undergone any diagnostic testing for her back. When questioned about
records regarding her absence from work two weeks prior to the alleged incident, she stated that
she had taken the Friday afternoon preceding her alleged injury off of work because her family
was going on vacation. Ms. Fisher testified that this absence had been planned ahead and was
not, as indicated by the emails of Ms. Meadows, a result of low back pain. Although Ms.
Meadows stated in her email that Ms. Fisher commented that her back had “progressively gotten
worse since last week,” she testified that she never told Ms. Meadows that her back was hurting
or the reason for the pain. She also testified that Ms. Meadows’s statement that Ms. Fisher told
her than she did not hurt her back “there” was not accurate.
In a decision dated March 4, 2020, the Office of Judges affirmed the November 22, 2019,
decision of the claims administrator. Although the Office of Judges found that medical records
support that Ms. Fisher sought treatment on November 1, 2019, for back pain that she indicated
developed after carrying computers on that date, the Office of Judges determined that she failed
to carry the burden of establishing that she suffered an isolated fortuitous event. The Office of
Judges reasoned that it is more likely than not that she did not sustain an injury to her back at
work on November 1, 2019. The Board of Review adopted the findings of fact and conclusions
of law of the Office of Judges and affirmed the March 4, 2020, decision on July 30, 2020.
After review, we agree with the decision of the Office of Judges, as affirmed by the
Board of Review. The reliable evidence of record fails to establish that Ms. Fisher sustained a
compensable injury to her back on November 1, 2019. The findings of fact and conclusions of
law of the Office of Judges and Board of Review are supported by the evidentiary record and the
applicable law.
Affirmed.
ISSUED: October 4, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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