J.M. v. Altice Technical Service USA, Inc. ( 2021 )

FILED
STATE OF WEST VIRGINIA July 19, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
J. M.,
Claimant Below, Petitioner
vs.) No. 20-0302 (BOR Appeal No. 2055001)
(Claim No. 2020006044)
ALTICE TECHNICAL SERVICE USA, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner J. M., by counsel William B. Gerwig III, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). 1 Altice Technical
Service USA, Inc. (“Altice Technical Service”), by counsel Steven K. Wellman, filed a timely
response.
The issue on appeal is compensability of the claim. The claims administrator rejected the
claim on October 3, 2019. On January 3, 2020, 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 May 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:
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Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.
Va. 641, 398 S.E.2d 123 (1990).
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(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[.]
....
(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. West Virginia 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 of 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. West
Virginia Off. of Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011).
J. M. worked for Altice Technical Service as a maintenance technician. On May 17, 2019,
he alleges that he injured his right hip/groin while lifting seventy-pound batteries out of his
assigned bucket truck. On the following Tuesday, May 21, 2019, he informed his employer, by
text message, that he had injured his groin the previous Friday, “before work.” He went on to state
that when the pulled groin occurred that previous Friday, it “ached a little,” and he figured he
would “deal with it” after the upcoming “bz weekend” when he would be “playing.” He stated that
he woke up on Tuesday, May 21, 2019, to find that he could barely walk and that he was in need
of medical care.
J. M. was seen at Urgent Care of Cross Lanes on May 22, 2019. The Office Clinic Note
records the history of the reported illness being:
“Patient complaining of 5 days of pain in his right inguinal area. No known injury.
. . Patient works as a lineman. States this happened as he was climbing in and out
of his truck at home.”
A physical examination revealed tenderness at the right inguinal groin area. He was diagnosed
with a thigh sprain. There was no mention of a work-related injury. J. M. returned to Urgent Care
of Cross Lanes on May 29, 2019. 2 He had pain over his anterior groin area and lateral hip. The
symptoms increased upon weightbearing. An x-ray revealed congenital dysplasia involving the
right acetabulum. Under “History of Present Illness,” it was noted that J. M. experienced right
2
J. M.’s employment was terminated at the end of May 2019.
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inguinal pain for five days, with “no known injury.” The pain was said to have occurred while
“climbing in and out of his truck at home.”
On June 11, 2019, J. M. was treated by Samantha Seitz, N.P., with the Charleston Family
Practice Group, for right hip pain that radiated to his right leg. Ms. Seitz noted no precipitating
event or injury. Physical examination revealed right hip pain with range of motion. An MRI of the
hip was recommended. Although physical therapy was recommended, J. M. disagreed that it was
necessary for his condition. He also did not feel that he had time for physical therapy. An MRI
performed at Women and Children’s Hospital on June 20, 2019, revealed dysplastic changes of
the right hip and equivocal mild dysplastic changes of the left hip. 3 Associated changes of the
redundant patulous right labrum were also found. An MRI of J. M.’s lumbar spine taken that same
date revealed disc protrusions at the L3-4 and L4-5 levels. A very mild narrowing spinal canal was
found at the L4-5 level.
J.M. signed a WC-1 application form on August 6, 2019, nearly three months after his
alleged injury. He claimed that the injury was to his right hip and low back on May 17, 2019, and
that it was a work-related injury. In describing the incident, J. M. wrote that he was injured while
“lifting power supply batteries over 70 lbs. Pivoted to move.” He indicated that he was in the
employer’s “bucket truck” and that he was on call. The physician’s section was signed by Michael
Chancey, M.D., with CAMC Urgent Care, Inc., who stated that J. M. had an occupational injury
of a right thigh sprain. Upon examination, J. M.’s right hip was tender. He was prescribed
cyclobenzaprine for pain.
Dr. Chancey referred J. M. for consultation with Clark Adkins, M.D., an orthopedist, who
examined him on August 15, 2019. Dr. Adkins noted, “He was cleaning his truck and felt a pop in
his hip. Since then he had pain in his groin. He had pain in his hip. Pain does not radiate down the
anterior aspect of the leg to the mid-thigh. He has pain at rest also.” A physical examination
revealed positive impingement and Stinchfield tests. However, right hip range of motion was
normal. Dr. Adkins reviewed J. M.’s x-rays, which he wrote showed “a very shallow up with
acetabular dysplasia. The joint space itself is maintained.” Dr. Adkins diagnosed right hip
osteoarthritis resulting from hip dysplasia.
J. M. gave a recorded statement on September 3, 2019. He reported that he was not working
at the present time and insisted that he stopped working because he “couldn’t even walk anymore
. . . because my groin area and everything else was damaged.” He described his job duties as a
floater who maintained a portion of the employer’s power grid. J. M. explained that he had been
called to duty on the date of injury because “there was a major storm moving through . . . there
was already outages everywhere.” In response to that call, J.M. stated, “I had to start prepping my
truck and getting stuff out of my truck.” The injury occurred “while I was inside the bucket truck
3
“Hip dysplasia is the medical term for a hip socket that doesn’t fully cover the ball portion
of the upper thighbone. This allows the hip joint to become partially or completely dislocated.
Most people with hip dysplasia are born with the condition.” See www.mayoclinic.org/diseases-
conditions/hip-dysplasia/symptoms-causes/syc-200350209.
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unloading the batteries and moving stuff around to get ready.” He indicated that he “pivoted
wrong” while removing batteries from the company truck while preparing for storm duty.
By Order dated October 3, 2019, the claims administrator denied compensability of the
claim. J. M. protested the claims administrator’s rejection of the claim. At a hearing on December
4, 2019, J. M. testified that his job included hanging new lines, diagnosing line problems, and
taking care of on-call outages during storms. He testified that he is uncertain of the time he was
injured at work, but he is certain that the injury occurred approximately one hour after beginning
preparation of the employer’s bucket truck. J. M. stated that he had to finish prepping the truck
before he could begin repairing lines damaged by the storm.
By decision dated January 3, 2020, the Office of Judges affirmed the Order of October 3,
2019, denying compensability of the claim. In analyzing J. M.’s protest, the Office of Judges noted
that his application contains too many inconsistencies to sustain the application. The first problem
found was that he sent a text message on May 21, 2019, to Mr. Hypes wherein he does not mention
a work-injury; instead, he states that he was playing over the weekend. Second, the Office of
Judges stated that J. M.’s treatment note from Urgent Care of Cross Lanes does not point to an
apparent precipitating event or injury. It was also found that J. M.’s MRIs do not support an injury
consistent with his testimony. Another troubling aspect of the application found by the Office of
Judges is that J. M. did not claim a work injury until after his employment was terminated, and
after he was denied treatment by Dr. Adkins’s office on July 15, 2019. Because his descriptions of
his immediate symptoms after the alleged injury are inconsistent, the Office of Judges determined
that J. M. did not prove by a preponderance of the evidence that he sustained an injury in the course
of and as a result of employment on May 17, 2019. The Board of Review adopted the findings of
fact and conclusions of law of the Office of Judges and affirmed its Order on May 21, 2020.
After review, we agree with the reasoning and conclusions of law of the Office of Judges,
as affirmed by the Board of Review. The evidence of record shows that J. M. has been diagnosed
with right hip osteoarthritis resulting from hip dysplasia, which is a congenital condition, not
related to any injury. Although he argues that he suffered a work-related injury on May 17, 2019,
his various descriptions of his condition included several inconsistencies which do not warrant a
finding that a compensable injury occurred.
Affirmed.
ISSUED: July 19, 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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