FILED
November 5, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
MURRAY AMERICAN ENERGY, INC.,
Employer Below, Petitioner
vs.) No. 20-0717 (BOR Appeal No. 2055203)
(Claim No. 2020013100)
RENEE MORRIS,
Claimant Below, Respondent
MEMORANDUM DECISION
Petitioner Murray American Energy, Inc., by counsel Aimee M. Stern, appeals the
decision of the West Virginia Workers’ Compensation Board of Review (“Board of Review”).
Renee Morris, by counsel T. Colin Greene, filed a timely response.
The issue on appeal is compensability of the claim. The claims administrator rejected the
claim in an Order dated November 26, 2019. On February 20, 2020, the Workers’ Compensation
Office of Judges (“Office of Judges”) reversed the claims administrator’s rejection of the claim
and held the claim compensable for compression of spinal cord. This appeal arises from the
Board of Review’s Order dated August 20, 2020, in which the Board affirmed the Order 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. Morris is employed as a motorman by Murray American Energy, Inc. On November
12, 2019, she alleged that she was injured in the course of and resulting from her employment
when a co-worker “belly-butted” her by shoving her using his stomach, knocking her backwards
onto the ground. When she hit the ground, the M20 underground rescue breathing apparatus she
is required to wear that attaches to the back of her tool belt was jammed into her lower spine
causing her spine to hyperextend. She immediately noted severe low back pain, hip pain,
numbness, and tingling in her feet and legs. She was able to call for help, and an ambulance
transported her to United Hospital Center in Bridgeport, West Virginia. Ms. Morris was
immediately hospitalized.
Ms. Morris completed her portion of the Employees’ and Physicians’ Report of
Occupational Injury of Disease form on November 12, 2019. She described her work injury as,
“Employee belly-butted me and made me fall backward on my back.” The physician’s section
was completed and indicated that she suffered an occupational injury and that it was unknown
whether the injury aggravated a prior disease, but it was likely that she had underlying spinal
issues. The injury was described as compression of the spinal cord, and she was referred to Bill
Underwood, M.D., a neurosurgeon at United Hospital Center.
Dr. Underwood noted muscle strength abnormalities 4/5 of her lower extremities and
abnormal sensation in the L3-S1 dermatomes bilaterally. An MRI of Ms. Morris’s lumbosacral
spine was compared to an MRI from November 25, 2015, with an impression being degenerative
lumbar spondylosis with associated canal and foraminal stenosis. The MRI revealed severe canal
stenosis at L3-4 and L4-5, with what appeared to be compression of the cauda equina. Also noted
was a 6 mm synovial cyst arising from the left facet at L3-4 that impressed upon the thecal sac.
Dr. Underwood’s impression was acute paraparesis status post-fall onto back, most likely the
result of underlying severe degenerative central canal stenosis at L3-4 and L4-5 with synovial
cyst at L3-4 worsened by disc bulging and hyperextension of her spine. Due to the progression of
her symptoms of numbness and weakness, emergency L3-4 and L4-5 bilateral compressive
laminectomies were performed. Following surgery, she reported improved relief from her
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symptoms. Ms. Morris was hospitalized from November 12, 2019, through November 15, 2019.
The discharge diagnoses were paraparesis and severe central canal stenosis at L3-4 and L4-5. A
subsequent operative note by Dr. Underwood listed findings of severe central canal stenosis from
L3-5 secondary to ligamentum flavum hypertrophy/facet and hypertrophy/disc bulging.
Murray American Energy, Inc., disputed the injury and noted that there were no
witnesses to the incident when it submitted written statements by Bruce Osborne, the individual
Ms. Morris claims knocked her down on November 12, 2019, and Jimmy Harris, another co-
worker. Mr. Osborne’s statement details his version of the events involving his confrontation
with Ms. Morris. He stated that he was called by Ryan Richman to run the motor for the day
shift. He was then informed by Ms. Morris that she would be running the motor, as she was the
senior person. He ignored her and got his tools, but when he went to the motor shanty to eat, she
was upset that he went to the company instead of the union representative over a previous issue.
Mr. Osborne said that Ms. Morris told him she was going to “slap him in the mouth.” She then
yelled at Ryan Richman that she wanted union representation, and she was going to have him
escorted outside. Mr. Osborne stated that she grabbed her things and walked to the slope bottom
and stayed at the motor until Jimmy Harris arrived to talk to him.
Mr. Harris provided a typed chronology of events stating that at 9:20 AM, Ms. Morris
called asking for union representation. Mr. Harris said he went underground and found her “on
the slope bottom at the call box crying”, and she stated that Bruce belly-bumped her while they
were arguing. Mr. Harris said he found Mr. Osborne at 9:43 AM at the motor, and he denied
touching Ms. Morris. Mr. Osborne said that when he arrived, she yelled at him about going to the
company rather than the union over a prior issue. She demanded that she would be the one
running the outby motor because she had more seniority. At 10:08 AM, Mr. Harris said Ms.
Morris wanted to complete an accident report because her hip was hurting, and she said that
“Bruce” knocked her down when he belly-bumped her. Perry Heflin, the union representative,
arrived at 10:12 AM, and five minutes later, Ms. Morris came out of the bathroom saying she
could not walk and that her legs were tingling. She was taken to the first aid room. Mr. Harris
reported that her pants and jacket were clean and no dirt was noticed from her being knocked to
the ground. At 10:40 AM an ambulance was called due to her continued pain.
A handwritten note by James Hershman dated November 14, 2019, states that he was
working in the MCC room on November 12, 2019, when he observed Ms. Morris standing by the
motors. He said that Mr. Osborne was sitting in the motor shanty and told him that Ms. Morris
“started on him” as soon as he came underground, and she wanted to run the outby motor. Mr.
Hershman said that Ms. Morris was still standing by her motor when he went back to the MCC
area. When he went to “the bottom” and then to the “slope bottom,” he heard her state on the
radio that she wanted union representation.
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On November 26, 2019, the claims administrator rejected the claim for workers’
compensation benefits. 1 The Order stated that it was found that the mechanism of injury did not
constitute an injury and that there were conflicting statements from Ms. Morris and several other
employees about the incident. Ms. Morris protested the claims administrator’s rejection of her
claim.
Murray American Energy, Inc., submitted prior medical evidence documenting that Ms.
Morris has a history of low back injuries. The earliest known available record of an injury is a
2004 Independent Medical Evaluation report regarding an injury to her wrist, wherein Charles
Lefebure, M.D., noted that “patient currently not working because of her back injury at rest care
home.” Dr. Lefebure indicated that the back injury occurred in 2002, and that Ms. Morris
remained off work and was continuing to receive medical treatment for her low back. She
subsequently suffered another workplace injury to her low back on November 5, 2015, when she
reported low back pain radiating down her bilateral legs after picking up a block. A lumbar spine
x-ray performed at United Hospital Center on November 6, 2015, documented mild progression
of degenerative endplate changes at multiple levels in the lumber spine since a 2004 x-ray, and
mild disc space narrowing at L3-L4, L4-L5, and L5-S1. A lumbar spine MRI dated November
25, 2015, revealed disc bulging and degenerative facet changes at L2-3, L3-4, and L4-5 with
mild to moderate stenosis.
Murray American Energy, Inc., asked Ronald Fadel, M.D., to review Ms. Morris’s
medical records for the purpose of addressing whether she sustained a new injury to her low back
on November 12, 2019. In a report dated January 9, 2020, Dr. Fadel stated that prior to the
alleged date of injury in the claim, Ms. Morris had developed age-acquired, previously
symptomatic lumbar spondylosis with secondary progressive neural element compressive
neuropathy. He concluded that the work event “represented an acute exacerbation of preexisting
canal and neural element compression neuropathy,” but that the incident did not aggravate her
preexisting lumbar pathology to the extent of causing a distinct new injury. Dr. Fadel opined that
Ms. Morris would have required the surgery performed by Dr. Underwood regardless of the
occurrence of November 12, 2019. Based upon Dr. Fadel’s assessment, Murray American
Energy, Inc., argues that the known existence of a preexisting condition is sufficient to place her
claim outside the realm of compensability, citing Syl. Pt. 3 of Gill v. City of Charleston, 236 W.
Va. 737, 783 S.E.2d 857 (2016), which holds:
“A non-compensable 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 non-compensable preexisting injury results
in a discreet new injury, that new injury may be found compensable.”
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The claims administrator’s Order dated November 26, 2019, attempted to define a
compensable injury as “an isolated fortuitous event received by an employee in the course of and
resulting from his or her employment,” although this was left as an incomplete sentence.
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It is Murray American Energy, Inc.’s, position that Ms. Morris did not sustain a new injury in the
course of and resulting from her employment.
In support of her protest of the claims administrator’s Order, Ms. Morris testified under
oath at a deposition taken on January 10, 2020, that she was arguing with Mr. Osborne at the
time he belly-butted her causing her to fall. When she fell, the M20 rescue breathing apparatus
on her tool belt was forced into her spine and she experienced a loss of feeling in her feet and
legs. She testified that she called Ryan Richman, Foreman/Superintendent, on her radio stating
that she required union representation, and she reported the injury to Jimmy Harris. Ms. Morris
filled out an accident report and requested an ambulance which took her to the Emergency
Center at United Hospital Emergency Center. An MRI performed showed spinal conditions
requiring emergency surgery, which was performed by Dr. Underwood. As a result of her injury,
she testified that she was hospitalized from November 12, 2019, through November 15, 2019,
with the need for follow-up treatment. Although she acknowledged past back problems, Ms.
Morris testified that that the injury of November 12, 2019, caused problems different from what
she had previously experienced. She also testified that she was not having any back problems
before arriving at work on November 12, 2019.
In a decision dated February 20, 2020, the Office of Judges reversed the claims
administrator’s Order of November 26, 2019, and held the claim compensable for compression
of spinal cord. The Office of Judges concluded that Ms. Morris showed by a preponderance of
the evidence that she was injured in the course of and as a result of her employment and that the
diagnosis of compression of spinal cord is a discrete new condition resulting from her injury in
the claim. Although Ms. Morris has underlying degenerative conditions in her lumbar spine,
which were well documented prior to November 12, 2019, the Office of Judges determined that
she had not received treatment for her lumbar spine after December 28, 2015, nor was she
experiencing abnormal symptoms until the injury in this claim. She did not have numbness in her
lower extremities or acute paraparesis as described by Dr. Underwood until falling on her M20.
It was also noted that Ms. Morris did not have a prior diagnosis of compression of spinal cord,
which was diagnosed after her injury. The Office of Judges found that the condition of
compression of spinal cord was a new and discrete condition that caused Ms. Morris’s lower
extremities to immediately experience tingling and numbness.
In addressing the opinion expressed by Dr. Fadel in his January 9, 2020, report, that he
did not feel that the work incident aggravated Ms. Morris’s preexisting low back condition to the
extent of causing a distinct new injury, the Office of Judges did not find his opinion to be
persuasive. The Office of Judges determined that Ms. Morris had not had any immediate need
for surgery, nor any ongoing pain, numbness, or tingling prior to her work injury. While she did
have preexisting degenerative conditions, it was found that her injury falls within Gill’s
exception for discreet new injuries. The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed the decision on August 20, 2020.
We agree with the decision of the Office of Judges, as affirmed by the Board of Review.
Although Ms. Morris has a history of preexisting back conditions, when she arrived at work on
November 12, 2019, she did not require emergency surgery to preserve the sensation in, and
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function of, her lower extremities. However, in the course of and resulting from her employment,
she was knocked backward onto items on her tool belt, which hyperextended her spine, and
ultimately required emergency intervention. The Office of Judges was correct in finding that Ms.
Morris’s work injury caused a new discreet injury of compression of spinal cord which was
addressed by Dr. Underwood on November 12, 2019.
Affirmed.
ISSUED: November 5, 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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