Tara A. Lambert v. American Bottling Company ( 2021 )

FILED
STATE OF WEST VIRGINIA June 23, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
TARA A. LAMBERT,
Claimant Below, Petitioner
vs.) No. 20-0274 (BOR Appeal No. 2054615)
(Claim No. 2019009546)
AMERICAN BOTTLING COMPANY,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Tara A. Lambert, by counsel Reginald D. Henry, appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). American Bottling
Company, by counsel Jane Ann Pancake, filed a timely response.
The issue on appeal is compensability of the claim. The claims administrator rejected the
claim on December 3, 2018. On September 12, 2019, the Workers’ Compensation Office of Judges
(“Office of Judges”) affirmed the claims administrator’s decision. This appeal arises from the
Board of Review’s Order dated February 21, 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. Office of Ins. Comm’r, 235 W. Va. 577, 775 S.E.2d 458, 463-64 (2015).
As we previously recognized in Justice v. W. Va. Office Ins. Comm’r, 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. Office of Ins. Comm’r, 227 W.
Va. 330, 334, 708 S.E.2d 524, 528 (2011).
Ms. Lambert is a truck driver who, prior to the alleged injury in this claim, was treated at
MedExpress Urgent Care (“MedExpress”) on March 25, 2014, for an injury to her left foot. X-
rays of the left foot revealed no acute findings, and she was diagnosed with plantar fasciitis. She
completed a Report of Injury form and described the injury by reporting, “went to step down out
of truck and my left foot started to hurt with sharp pains and feels like it is burning.” Medical
records from MedExpress dated March 25, 2014, show the assessment of Ms. Lambert’s condition
as pain in the foot/toe. She was discharged with instructions to elevate the injured extremity as
much as possible to reduce pain and to prevent swelling.
On October 19, 2018, Ms. Lambert filed a Report of Injury stating that she sustained an
injury to her left foot when she stepped backwards onto her left foot. She was seen for treatment
by Tammy Blankenship, NP, at MedExpress, and it was determined that she sustained an
occupational injury of left plantar fasciitis. An x-ray revealed no evidence of fracture or acute
findings. The MedExpress staff concluded that the October 19, 2018, injury did not aggravate a
prior injury/disease. The discharge instructions noted plantar fasciitis, and she was ordered to
elevate her extremity and apply ice. A Workers’ Compensation Duty Form was prepared placing
Ms. Lambert on modified duty.
Ms. Lambert followed-up with MedExpress on October 26, 2018, for her foot injury. The
examination found normal range of motion of the feet and full strength against resistance in the
left foot. There was no swelling or deformity noted in her foot. Ms. Lambert reported foot pain on
palpation and pain in the arch radiating up to the great toe. The assessment was plantar fasciitis.
She was placed on modified duty as of October 26, 2018. At a follow-up examination at
MedExpress on November 2, 2018, Ms. Lambert stated that she had been icing her left plantar foot
and had been limiting weight bearing. She requested to return to full duty. Upon examination, there
was no swelling or deformity noted. There was no erythema observed and no ecchymosis
observed. Again, the assessment was plantar fasciitis.
On November 13, 2018, Ms. Lambert was seen by John Tabit, M.D., an orthopedic
surgeon, for a second opinion about her condition. The listed reason for the appointment with Dr.
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Tabit was because she had suffered a new injury to her left foot. Ms. Lambert complained of left
foot pain and stated she was getting a jack out of a truck on October 19, 2018, when she pivoted
on her foot and felt a sharp pain. She also reported that she had been unable to bear weight on her
left foot. Dr. Tabit noted moderate swelling and edema, the presence of erythema and ecchymosis,
decreased range of motion, and antalgic gait on the left. The diagnosis was contusion of the left
foot, initial encounter. Dr. Tabit recommended conservative care, including activity modification,
rest, ice, elevation, compression, and oral anti-inflammatory medications. He did not provide a
discussion concerning whether or not the contusion diagnosis was related to the incident of
October 19, 2018.
By Order dated December 3, 2018, the claim was rejected by the claims administrator. It
was determined that a compensable work injury was not sustained. Ms. Lambert protested the
claims administrator’s decision.
In support of her protest, Ms. Lambert testified at a deposition held on April 11, 2019, that
on October 19, 2018, as she was stepping off the back of her truck, her foot and toe popped. She
could not put pressure on her foot following the injury. She called her boss and told him that she
would try to finish working, but she began experiencing excruciating pain with every step. Ms.
Lambert testified that she was not having trouble with her left foot prior to the work injury. After
seeking treatment at MedExpress, she was off work for four or five weeks. She sought treatment
with Dr. Tabit, a specialist, for a second opinion on November 13, 2018. Dr. Tabit did not find that
she had plantar fasciitis, but stated that it would take a while to heal. Ms. Lambert stated that she
returned to full duty work and began having problems with her foot. She stated that whenever she
gets on her toes or has to reach, it feels like her foot is pulling apart. She reported that her symptoms
include constant pain when she puts pressure on it. Regarding her March 25, 2014, injury, Ms.
Lambert testified that she does not remember filing a workers’ compensation claim for an injury
to her left foot in 2014 because she was under the impression that she injured her right foot.
By Order dated September 12, 2019, the Office of Judges affirmed the December 3, 2018,
Order of the claims administrator denying Ms. Lambert’s application for workers’ compensation
benefits. The Office of Judges determined that the preponderance of the evidence indicates that
she has failed to show that she sustained an injury in the course of and as a result of her employment
on October 19, 2018. Ms. Lambert had three dates of treatment at MedExpress on October 19,
2018; October 26, 2018; and November 2, 2018. On those dates there were no findings upon
physical examination of swelling in the foot or erythema or ecchymosis. When Ms. Lambert was
seen by Dr. Tabit, who specializes in orthopedic trauma, on November 13, 2018. Dr. Tabit
examined her and found swelling, erythema and ecchymosis. Although she was diagnosed with a
contusion of the left foot, Dr. Tabit did not provide an explanation as to whether his finding of
contusion is related to the incident of October 19, 2018. The Office of Judges reasoned that left
plantar fasciitis would be a pre-existing condition rather than a new injury based upon Ms.
Lambert’s medical history. The Board of Review issued an Order dated February 21, 2020,
adopting the findings of fact and conclusions of law of the Office of Judges and affirmed the
decision.
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After review, we agree with the decision of the Office of Judges, as affirmed by the Board
of Review. Ms. Lambert fails to establish by a preponderance of the evidence that she sustained a
workplace injury on October 19, 2018. Although Dr. Tabit diagnosed Ms. Lambert with a left foot
contusion, the preponderance of the evidence does not establish that the diagnosis is causally
related to the incident of October 19, 2018.
Affirmed.
ISSUED: June 23, 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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