FILED
September 14, 2023
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
STATE OF WEST VIRGINIA OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Earl Kenneda, Jr.,
Claimant Below, Petitioner
vs.) No. 22-0127 (BOR Appeal No. 2057180)
(Claim No. 2021001450)
United Coal Company, LLC,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Earl Kenneda, Jr., appeals the decision of the West Virginia Workers’
Compensation Board of Review (“Board of Review”). Respondent United Coal Company, LLC,
filed a timely response. 1 The issue on appeal is compensability. Petitioner argues that his claim
should be held compensable for a back injury. The claims administrator denied the claim on August
5, 2020. The Workers’ Compensation Office of Judges (“Office of Judges”) affirmed the decision
in its July 22, 2021, order. The order was affirmed by the Board of Review on January 20, 2022.
Upon our review, we determine that oral argument is unnecessary and that a memorandum decision
affirming the Board of Review’s decision is appropriate. See W. Va. R. App. P. 21.
On July 24, 2020, petitioner, a foreman, completed an Employees’ and Physicians’ Report
of Injury stating that on July 21, 2020, he injured his back when lifting a belt in the coal mine at
which he works. Petitioner went to the emergency room after waking up on July 22, 2020, and
finding that he could not stand up straight. A healthcare provider at Raleigh General Hospital, with
an unreadable signature, completed an Employees’ and Physicians’ Report of Injury on July 30,
2020, making a diagnosis of lumbago with sciatica. According to the hospital’s emergency
department records, petitioner reported that he had back pain for “several days” and that he had
experienced similar symptoms previously. Petitioner believed that he aggravated a prior injury by
lifting the mining belt, and back pain was noted as part of his past medical history. Luis Puchi,
M.D., diagnosed petitioner with low back pain and muscle spasms in the back. On August 5, 2020,
the claims administrator denied petitioner’s claim based upon its review of the emergency
department records. Petitioner protested this order.
Petitioner’s primary care providers are Ralph Simms, D.O., and Courtney E. Epling,
MSPA-C. Ms. Epling saw petitioner on August 5, 2020, and noted that petitioner stated that he
went to the emergency room after his back “went out.” A physical examination revealed
1
Petitioner is represented by Reginald D. Henry, and respondent is represented by H. Dill
Battle, III.
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“tenderness down through the lumbosacral junction.” Ms. Epling made a diagnosis of lumbosacral
degenerative disease and released petitioner to return to work.
Petitioner underwent an x-ray of the lumbar spine at Raleigh Orthopedics on August 25,
2020. The x-ray showed no fracture or subluxation with vertebral body height and alignment being
well-maintained. The disc spaces were also preserved. However, mild multilevel facet arthropathy
(arthritis) was noted. Therefore, Joseph A. Lambert, II, M.D., found no evidence of dynamic
instability with very mild degenerative changes. Petitioner was also examined by Megan Dincher,
PA-C, who noted a past history of kidney stones. Ms. Dincher found tenderness to palpation along
the lower lumbar spine with no palpable defect. Ms. Dincher further found good range of motion
during back flexion, extension, and rotation. However, petitioner reported that he had pain with
extension and rotation. The primary diagnosis Ms. Dincher provided petitioner was back pain with
left-sided radiculopathy. Ms. Dincher also diagnosed petitioner with low back pain, muscle spasms
in the back, and lumbar facet arthropathy. Ms. Dincher recommended an MRI or an
electromyography, finding that physical findings and petitioner’s complaints were more consistent
with a lumbar disc herniation with left lower extremity radiculopathy than symptoms secondary to
the mild osteoarthritic changes visible on the claimant’s x-ray. Petitioner underwent an
electromyography at Vaught Neurological Services on November 13, 2020. Based upon the results
of the study, Barry K. Vaught, M.D. found that there was electrophysiological evidence of left-
side radiculopathy at L4-L5.
Petitioner testified at a deposition on January 7, 2021. Petitioner stated that he injured his
back during a night shift on July 21, 2020, between 11:00 p.m. and midnight. To petitioner, the
timing of the injury meant he suffered back pain for “a couple days,” which is what he said during
his emergency room visit. Petitioner denied stating that he had pain for “several days.” Petitioner
attributed any back pain before July 21, 2020, to kidney stones. Petitioner stated that the emergency
room notation that he had a prior back injury was incorrect. However, petitioner indicated that Dr.
Simms and Ms. Epling have been his primary care providers since at least 2011, stating that he
sees “Dr. Simms every other month because I’m on [nerve] medication” and that Ms. Epling
“works in Dr. Simms[’s] office.” Given that Dr. Simms diagnosed petitioner with a lumbar spine
condition prior to July 2020, petitioner was asked about symptoms relating to that condition.
Petitioner answered that the only symptom he had before July 21, 2020, was stiffness, which he
attributed to the strenuousness of his occupation. However, when he was later asked if he
experienced back pain in 2019, petitioner responded that he might have had “everyday common
soreness or stiffness and aches and pain.” Petitioner further testified that his regular medications
included Flexeril, a muscle relaxant. Petitioner stated that the purpose of taking Flexeril was to
relax his legs at night. Petitioner denied taking Flexeril for his back. Petitioner stated that he never
filed any workers’ compensation claims prior to the instant claim.
David L. Soulsby, M.D., performed a medical records review on March 13, 2021, and
opined that he could not state to a reasonable medical certainty that petitioner sustained a discrete
new injury on July 21, 2021. Rather, Dr. Soulsby found that petitioner suffered from episodic back
pain due to degenerative disc disease. Dr. Soulsby rejected petitioner’s testimony that any previous
back pain was related to kidney stones. Petitioner’s primary care physician, Dr. Simms, never
listed kidney stones as a diagnosis or ordered studies of petitioner’s urinary system, and kidney
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stones were not considered part of the differential diagnosis when petitioner’s complaints of back
pain were evaluated during 2016, 2017, and 2018. Dr. Soulsby further noted that on February 15,
2021, Jonathan Luchs, M.D. a radiologist, conducted an age of injury analysis using the August
25, 2020, x-ray of petitioner’s lumbar spine and an earlier x-ray of the lumbar spine from
November 24, 2004. Comparing the x-rays, Dr. Luchs determined that all of the findings
represented chronic and degenerative changes in the lumbar spine and “a typical progression of
degenerative disc disease and degenerative arthropathy over time.”
In the November 24, 2004, x-ray report, which is in the record, Alan M. Lintala, M.D.
found no fractures or subluxations of the lumbar spine, noted an unobstructive stone in a calyx of
the mid right kidney, and provided a clinical history which included back pain. Petitioner’s medical
records from Dr. Simms and Ms. Epling from 2016 through 2020 are also in the record. Petitioner
was regularly treated for low back pain, and his complaints following July 21, 2020, were the same
or substantially similar to his prior complaints of back pain. The clinical findings (such as
degenerative disc disease, tenderness down through the lumbosacral junction, and radiculopathy)
also did not appreciably change after July 21, 2020.
In its July 22, 2021, order, the Office of Judges affirmed the claims administrator’s denial
of petitioner’s claim of sustaining an occupational injury. The Office of Judges found that the
medical evidence supported Dr. Soulsby’s opinion that petitioner did not have a discrete new
injury. Therefore, finding Dr. Soulsby’s opinion to be credible, the Office of Judges determined
that petitioner failed to show by a preponderance of the evidence that he sustained a personal injury
in the course of and resulting from his employment. On January 20, 2022, the Board of Review
adopted the Office of Judges’ findings and affirmed.
This Court may not reweigh the evidentiary record, but must give deference to the findings,
reasoning, and conclusions of the Board of Review, and when the Board’s decision affirms prior
rulings by both the Workers’ Compensation Commission and the Office of Judges, we may reverse
or modify that decision only if it is in clear violation of constitutional or statutory provisions, is
clearly the result of erroneous conclusions of law, or is based upon a material misstatement or
mischaracterization of the evidentiary record. See W. Va. Code §§ 23-5-15(c) & (d). We apply a
de novo standard of review to questions of law. See Justice v. W. Va. Off. of Ins. Comm’n, 230
W. Va. 80, 83, 736 S.E.2d 80, 83 (2012).
After review, we find no error in the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. For an injury to be compensable it must be a personal injury that
was received in the course of employment, and it must have resulted from that employment. See
Syl. Pt. 1, Barnett v. State Workmen’s Comp. Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970).
“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). In Syllabus Point 3
of Gill, we further held, in pertinent part, that “[t]o the extent that the aggravation of a
noncompensable preexisting injury results in a dis[crete] new injury, that new injury may be found
compensable.” 236 W. Va. at 738, 783 S.E.2d at 858. As stated above, the record contains
extensive evidence that petitioner was suffering a symptomatic preexisting condition. Dr. Simms
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attributed petitioner’s tenderness down through the lumbosacral junction to petitioner’s
degenerative disease. We find no error in the Office of Judges’ finding that there was no discrete
new injury.
Affirmed.
ISSUED: September 14, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
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