IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
DAVID E. HONAKER, November 18, 2022
Claimant Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
vs.) No. 22-ICA-84 (BOR Appeal No. 2058130) OF WEST VIRGINIA
(JCN: 2021021167)
JUSTICE FAMILY GROUP, LLC,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner David E. Honaker appeals the August 19, 2022, order of the Workers’
Compensation Board of Review (“Board”). Respondent Justice Family Group, 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 Office of Judges’ decision rejecting Mr. Honaker’s workers’
compensation claim.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
On March 29, 2021, Mr. Honaker, a pot washer for the employer, sought treatment
from his primary care physician, Robert E. Olexo, D.O. Mr. Honaker complained of low
back pain that radiated down his left leg. Mr. Honaker denied any injuries or falls and
denied lifting anything he knew caused the injury. During the examination, Mr. Honaker
exhibited tenderness to palpation and decreased range of motion. Dr. Olexo assessed
lumbar strain and ordered x-rays, which were taken on March 30, 2021. The x-rays
revealed degenerative changes of the lumbar spine.
Mr. Honaker underwent an MRI in April of 2021, that demonstrated an interval
large disc herniation at L4-5, postoperative change seen at L5-S1, 2 prominent right L5
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Petitioner is represented by Reginald D. Henry, Esq. Respondent is represented by
Billy R. Shelton, Esq.
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Mr. Honaker previously injured his lower back and had surgery in 2007 or 2008.
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nerve root side of the rib prior surgery, and Tarlov cyst. At some point in April of 2021,
Mr. Honaker notified his supervisor that he had sustained a work-related injury and,
subsequently, the employer completed a preliminary incident report, wherein it noted that
Mr. Honaker was diagnosed with a herniated disc but was unsure of a specific cause of
injury. The employer also submitted an Employer’s Report of Occupational Injury or
Disease, wherein the author reported “unsure of accurate cause. [Mr. Honaker] stated that
he does lift heavy pots. Lower left back, diagnosed as a herniated dis[c].” The author noted
that there had been no reason to question the injury.
Mr. Honaker continued treatment with Dr. Olexo, who reviewed the MRI results
and assessed sciatica, bruit, dyslipidemia, essential hypertension, GERD, and
radiculopathy. Mr. Honaker also participated in a recorded statement, wherein he stated
that his regular workday included washing and lifting heavy pots and sweeping and
mopping floors. Mr. Honaker noted that he began feeling pain in his back around March
28 or 29 of 2021, and that he had been diagnosed with a large herniated disc, surmising
that the diagnosis was related to his repetitive lifting of pots. Mr. Honaker admitted that
there was no specific accident other than lifting. Later in April, Mr. Honaker presented at
Spine Center PC for examination and was assessed with low back pain; spondylolysis,
lumbar region; other intervertebral disc displacement, lumbar region; radiculopathy,
lumbar region; and spondylolisthesis, lumbar region.
By order dated May 3, 2021, the claim administrator rejected the claim, concluding
that the injury did not meet the statutory definition of an accident. Mr. Honaker protested
the order. Subsequently, Mr. Honaker was examined by neurosurgeon John Orphanos,
M.D. Dr. Orphanos assessed lumbar spondylolisthesis and radiculopathy due to lumbar
intervertebral disc disorder and recommended physical therapy and a left transforaminal
epidural steroid injection.
Mr. Honaker testified via deposition in August of 2021, wherein he reiterated his
duties as a pot washer. Mr. Honaker testified that he believed the injury occurred around
March 24 or 25 of 2021 because his back began to hurt during his shift. Mr. Honaker
admitted that he did not notify his supervisor until around April 10, 2021, stating that his
mother was sick and passed away around that time. Mr. Honaker acknowledged his 2008
back injury/surgery and that his current pain was in the same location and had previously
received treatment for back pain and numbness of the leg in 2018. Mr. Honaker opined that
his current injury occurred in the course of and as a result of his employment because his
back was not hurting before his shift and began hurting during his shift, and because he
was lifting a lot of pots and pans at that time. He admitted, however, that he originally told
Dr. Olexo that he had not lifted anything that caused his injury.
By order dated April 1, 2022, the Office of Judges (“OOJ”) affirmed the claim
administrator’s order rejecting the claim. While acknowledging that Mr. Honaker had been
diagnosed with disc herniation, spondylolisthesis, and radiculopathy, the OOJ noted that
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Mr. Honaker had a significant preexisting low back condition. The OOJ found that records
dated from 2015 through 2017 demonstrated that Mr. Honaker had complaints of low back
pain radiating to the lower extremities and had lumbar disc disease at the L4-5 and L5-6
level with a history of back surgery. The OOJ further found that there was no evidence of
an isolated fortuitous event, as Mr. Honaker initially denied any injury or fall and denied
lifting anything to cause injury.
Moreover, while the Supreme Court of Appeals of West Virginia (“SCAWV”) has
recognized a gradual injury as compensable per Lilly v. State Workmen’s Compensation
Commissioner, 159 W. Va. 613, 225 S.E.2d 214 (1976), the OOJ found Lilly to be
distinguishable from the case at bar. In Lilly, the claimant’s job required her to lift bundles
of clothing with a repetitive twisting and lifting motion. Id. at 614, 225 S.E.2d at 215.
Eventually, the claimant began to suffer low back pain and filed a workers’ compensation
claim. Id. at 614-15, 225 S.E.2d at 215. Two doctors of record opined that her back pain
could be related to her employment, and evidence established that she had no prior injury
to her back. Id. at 617-18, 225 S.E.2d at 216. The workers’ compensation appeal board
affirmed the insurance commissioner’s decision concluding that the claim was not
compensable as no injury occurred during the course of and a result of the claimant’s
employment. Id. at 616, 225 S.E.2d at 215-16. On appeal, the SCAWV reversed the board’s
order and held the claim compensable. Id. at 620, 225 S.E.2d at 218. The SCAWV held
that “[a]n employee who sustains an injury which occurred as a result of repeated
performances of a specific job duty, upon proof that such injury took place in the course of
and resulting from his employment, has sustained an occupational disease, which . . .
constitutes a personal injury.” Id. at 613, 225 S.E.2d at 214, syl. pt. 2, in part.
The OOJ distinguished Lilly from the case at bar by noting that, unlike the claimant
in Lilly, Mr. Honaker 1) never filed a report of occupational disease or injury, 2) failed to
submit a medical opinion that his low back injury was the result of an occupational injury
or disease, and 3) had a significant preexisting back condition. Indeed, the medical
evidence demonstrated preexisting lumbar disc disease at the same level that Mr.
Honaker’s herniated disc occurred, and the record shows that he complained of chronic
back pain. The OOJ noted that without a medical opinion that Mr. Honaker’s work duties
could have caused the herniation, the OOJ would have to speculate as to whether his
preexisting condition or his employment caused the herniated disc. As such, the OOJ found
that Mr. Honaker failed to meet his burden in establishing that he sustained a low back
injury in the course of and as a result of his employment. The Board adopted the findings
of fact and conclusions of law of the Office of Judges and affirmed the April 1, 2022, order
on August 19, 2022. Mr. Honaker now appeals.
Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:
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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;
(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. Honaker argues that the lower tribunals erred in finding that his low
back injury was not compensable and in rejecting the claim. Mr. Honaker avers that he
suffered a work-related injury in March of 2021, while he was lifting and washing heavy
pots. Mr. Honaker argues that the medical evidence of record demonstrates that he
sustained an injury at work, citing to the MRI results demonstrating a “new” herniated disc
at the L4-5 level. Mr. Honaker also notes that the employer’s own report of injury
specifically indicated that there was no reason to question the injury. Mr. Honaker
compares his case to Lilly, noting that he performed repetitive and strenuous duties that led
to a gradual injury. Mr. Honaker further argues the lower tribunals erred in finding that his
preexisting back condition was the cause of his current injury. According to Mr. Honaker,
he explained that the injury is in a “completely different area of his back.” Mr. Honaker
cites to Syllabus Point 5 of Moore v. ICG Tygart Valley, LLC, No. 20-0028, -- W. Va. --,
-- S.E.2d --, 2022 WL 1262269 (W. Va. Apr. 28, 2022), wherein the SCAWV held that
[a] claimant’s disability will be presumed to have resulted from the
compensable injury if: (1) before the injury, the claimant’s preexisting
disease or condition was asymptomatic, and (2) following the injury, the
symptoms of the disabling disease or condition appeared and continuously
manifested themselves afterwards. There still must be sufficient medical
evidence to show a causal relationship between the compensable injury and
the disability, or the nature of the accident, combined with the other facts of
the case, raises a natural inference of causation. This presumption is not
conclusive; it may be rebutted by the employer.
Mr. Honaker claims he “had no symptoms when arriving for work that day, until about
12:00 pm while lifting and washing pots” and that, prior to the injury, he had been
performing these duties without any issue. Accordingly, Mr. Honaker concludes that the
OOJ as affirmed by the Board was clearly wrong in rejecting his claim.
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After review, we agree with the OOJ as affirmed by the Board that Mr. Honaker
failed to demonstrate that he sustained a herniated disc in the course of and as a result of
his employment. As noted by the OOJ, Mr. Honaker failed to file a report of occupational
disease or injury. In fact, when Mr. Honaker first sought treatment in March of 2021, he
informed Dr. Olexo that he had not sustained any injury or lifted any objects that would
have caused the back pain. Further, while Mr. Honaker likens his case to Lilly, the OOJ
made specific findings distinguishing the cases, and we find no clear error in their findings.
Moreover, we find that Mr. Honaker’s reliance on Moore is misplaced, as he clearly does
not meet the required elements. The OOJ noted that medical records from 2015 through
2017 demonstrated that Mr. Honaker had complaints of low back pain radiating into his
lower extremities. Medical records also established that Mr. Honaker had a preexisting
back condition that required surgery at the same level as his current disc herniation. As
such, Mr. Honaker’s preexisting condition was not asymptomatic, a prerequisite to
compensability per Moore.
Most importantly, no medical professional of record attributed Mr. Honaker’s disc
herniation to his occupation. Accordingly, there was no evidence of record, aside from Mr.
Honaker’s self-serving statements, demonstrating a causal relationship between his
employment and his disc herniation, which is fatal to Mr. Honaker’s claim. See Syl. Pt. 1,
Barnett v. State Workmen’s Comp. 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.”); see also Syl. Pt. 3, Casdorph v. W. Va. Off. Ins.
Com’r, 225 W. Va. 94, 690 S.E.2d 102 (2009) (“‘In determining whether an injury resulted
from a claimant’s employment, a causal connection between the injury and employment
must be shown to have existed.’ Syllabus Point 3, Emmel v. State Compensation Director,
150 W.Va. 277, 145 S.E.2d 29 (1965).”). Simply put, Mr. Honaker failed to meet his
burden of proof in establishing that his disc herniation occurred in the course of and as a
result of his employment, particularly when considering his significant preexisting back
condition. Accordingly, we find no error in the Board’s order affirming the OOJ’s
affirmance of the claim administrator’s decision rejecting Mr. Honaker’s claim.
Accordingly, we affirm.
Affirmed.
ISSUED: November 18, 2022
CONCURRED IN BY:
Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen
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