IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
DEWAYNE ROBERTS, November 18, 2022
Claimant Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 22-ICA-51 (JCN: 2020024252)
(BOR: 2057900)
DANIEL WATSON MASONRY, LLC,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Dewayne Roberts appeals the July 25, 2022, order of the Workers’
Compensation Board of Review (“Board”). Respondent Daniel Watson Masonry, LLC
filed a timely response.1 Petitioner did not file a reply brief. The issue on appeal is whether
the Board erred in affirming the January 13, 2022, order of the Workers Compensation
Office of Judges (“OOJ”) which affirmed the claim administrator’s August 12, 2020, order
holding the claim compensable for lumbar sprain, but finding that Mr. Roberts’ preexisting
chronic back pain, lumbago, sciatica, spinal stenosis, and any/all degenerative conditions
associated with chronic back pain were not compensable. 2
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ briefs, the record on appeal, and the applicable
law, this Court finds no substantial question of law and no prejudicial error. For these
1
Petitioner is represented by Wendle D. Cook, Esq. Respondent is represented by
Jeffrey B. Brannon, Esq.
2
Mr. Roberts’ brief alleges only that the OOJ erred in affirming the claim
administrator’s order and makes no allegations of error concerning the Board or its order
of affirmance. Mr. Roberts’ brief is also not in compliance with the requirements of West
Virginia Rule of Appellate Procedure 10(c) pertaining to organization of the brief and
citation to the appendix record. The Supreme Court of Appeals of West Virginia has
observed that Rule 10 is designed to “help lawyers file clear, concise, and organized
briefs.” Metro Tristate, Inc. v. Pub. Serv. Comm’n of W. Va., 245 W. Va. 495, 502, 859
S.E.2d 438, 445 (2021). The Court will liberally construe briefs in determining issues
presented for review pursuant to State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613,
621 (1996), however counsel is reminded that “a lawyer has a duty to plead and prove his
case in accordance with established court rules.” State, Dep’t of Health v. Robert Morris
N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833 (1995).
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reasons, a memorandum decision affirming the lower tribunal’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
Mr. Roberts, a stone mason, alleges he hurt his lower back, right hip, and right leg
on November 21, 2019, while carrying a bag of mortar weighing around 75-100 pounds
over his shoulder, as he was working for Daniel Watson Masonry laying stone at a job site
in Martinsburg, West Virginia. A load of large boulders was on the ground where he was
working. Near the end of Mr. Roberts’ shift, as he stepped on one of the boulders, it rotated,
causing him to slip and twist his back. He experienced immediate pain and had difficulty
using his right leg. He was unable to drive that evening, so a co-worker drove him to his
home in Madison, West Virginia.
The next day Mr. Roberts presented at Boone Memorial Hospital’s emergency
department and reported acute pain in his right lower back going down his right leg and
into his knee. He stated he had been having the same symptoms for the past four weeks,
and that he had been at the same ER two weeks prior and had x-rays and was given
corticosteroids, but that his symptoms had not improved. Mr. Roberts reported that he lifts
heavy objects as part of his job and has chronic back problems, which had been much worse
in the past three weeks. He had continued to work but was having difficulty doing his job.
He described his pain as throbbing and an eight out of ten on the pain scale. He did not
mention the injury of November 21, 2019. CT scans were performed, and he was diagnosed
with lumbago with sciatica on the right side and spinal stenosis in the lumbosacral region
and given a referral to neurology and for an MRI. Mr. Roberts was ordered not to return to
work for three weeks, or until December 16, 2019.
On the physician portion of the workers’ compensation application form, Mr.
Roberts’ physician indicated that Mr. Roberts sustained an occupational injury to his back,
specifically lumbago, sciatica, and spinal stenosis, and that he aggravated a prior injury.
Mr. Roberts underwent an MRI on December 5, 2019, and was seen by a neurosurgeon
who observed that he was suffering from right sided radiculopathy subsequent to disc
bulging and disc herniation in his lumbar spine. Mr. Roberts received a transforaminal
epidural steroid injection on January 3, 2020, to treat those issues. 3
On August 12, 2020, the claim administrator issued an order approving Mr. Roberts’
application for benefits. The claim was held compensable for a lumbar sprain and Mr.
Roberts was granted temporary total disability (“TTD”) benefits for November 22, 2019,
to December 15, 2019, the dates that Mr. Roberts was ordered to remain off work by the
ER physician. Mr. Roberts protested this order on the grounds that it did not include
additional diagnoses and treatments he received, and also that his TTD benefits should
have been extended.
3
Mr. Roberts’ brief also alleges that he had surgery to repair his herniated disc, but
no corroborating documents are included in his appendix record.
2
A hearing was held before the OOJ on November 30, 2020. Mr. Roberts testified at
the hearing that before the November 21, 2019, injury he did not have prior issues with his
back other than some aches and pains and had never received medical treatment prior to
those treatments related to this injury. An Age of Injury Analysis of Mr. Roberts’
December 5, 2019, MRI of the lumbar spine was prepared by Kenneth Fortgang, M.D., a
board-certified radiologist, and submitted into the record. Dr. Fortgang’s report concluded
that the MRI showed certain lumbar disc herniation, protrusion, and bulging, with
desiccation, spondylosis, and facet arthropathic changes, which are all clear markers for
chronicity. The findings were all considered chronic, and no acute abnormalities were
identified. The OOJ affirmed the claim administrator’s order on the grounds that while the
lumbar sprain was a compensable condition, the chronic back pain, lumbago, sciatica, and
spinal stenosis were degenerative conditions that preexisted the occupational injury of
November 21, 2019. The OOJ noted that any aggravation of a preexisting condition is not
compensable pursuant to Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857
(2016). The Gill 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 [discrete] new injury, that new injury may be found
compensable.
Id. at syl. pt. 3. The OOJ found that, based on a preponderance of the evidence, it is more
likely than not that Mr. Roberts did not sustain any discrete new injury other than a lumbar
sprain on November 21, 2019, and that he did not present evidence of continued TTD for
the compensable sprain beyond December 15, 2019. The Board affirmed the OOJ’s
decision and Mr. Roberts appeals herein.
The standard of review applicable to this Court’s consideration of workers’
compensation appeals has been set out under West Virginia Code § 23-5-12a(b) (2022), as
follows:
The Intermediate Court of Appeals may affirm the order or
decision of the Workers’ Compensation Board of Review or
remand the case for further proceedings. It shall reverse,
vacate, or modify the order or decision of the Workers’
Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the
Board of Review’s findings are:
(1) In violation of statutory provisions;
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(2) In excess of the statutory authority or jurisdiction of the
Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and
substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.
On appeal, Mr. Roberts argues that the OOJ’s decision was clearly wrong and
should be reversed because the uncontested and uncontradicted evidence shows that he
suffered a new and discrete injury when he sustained a herniated disc. Mr. Roberts argues
that because he had never been diagnosed with or experienced the symptoms of a herniated
disc before, it was a new injury.
However, upon review, this Court finds no error or abuse of discretion in the Board’s
affirmance of the January 13, 2022, decision of the OOJ. Medical records were submitted
which indicated that Mr. Roberts had a history of chronic back pain which was much worse
in the three weeks prior to the November 21, 2019, incident. Medical records indicate that
he sought treatment just a month prior to the November 21, 2019, incident for substantially
similar symptoms and was prescribed corticosteroids. When Mr. Roberts presented for
treatment on November 22, 2019, he did not mention the November 21, 2019, incident.
His physician, on the workers’ compensation report of injury, noted that Mr. Roberts had
preexisting back problems and that this injury had aggravated those issues. The MRI taken
on December 5, 2019, showed no acute injuries but only chronic issues, including the disc
herniation, disc protrusion, and mild disc bulging. That finding was supported by Dr.
Fortgang’s age of injury analysis, which Mr. Roberts did not refute. Based on the
foregoing, we find that Mr. Roberts has failed to demonstrate that the Board was clearly
wrong in its affirmance of the OOJ’s January 13, 2022, decision to affirm the August 12,
2020, order of the claim administrator. 4
Accordingly, we affirm.
Affirmed.
ISSUED: November 18, 2022
Although the OOJ’s decision did not include an explicit analysis under Moore v.
4
ICG Tygart Valley, Inc., No. 20-0028, -- W. Va. --, -- S.E.2d --, 2022 WL 1262269 (W.
Va. Apr. 28, 2022), the record is clear that Mr. Roberts’ pre-existing condition was not
asymptomatic before the November 21, 2019 incident, particularly in light of the fact that
he complained of increased lower back pain and sought and received treatment within a
month of the incident at issue.
4
CONCURRED IN BY:
Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen
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