Billie L. Whitt v. WVOIC/US Trinity Energy Services, LLC

FILED
February 25, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
BILLIE L. WHITT,
Claimant Below, Petitioner
vs.) No. 20-0732 (BOR Appeal No. 2055265)
(Claim No. 2019024513)
US TRINITY ENERGY SERVICES, LLC,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Billie L. Whitt, by Counsel Lori J. Withrow, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). US Trinity Energy
Services, LLC, by Counsel Daniel G. Murdock, filed a timely response.
The issue on appeal is the compensable conditions in the claim. The claims administrator
held the claim compensable for left ankle, low back, and neck sprains/strains on June 17, 2019.
The Workers’ Compensation Office of Judges (“Office of Judges”) modified the decision in its
March 6, 2020, Order and added the bilateral shoulders to the claim. The Order was reversed by
the Board of Review on August 24, 2020, and the claims administrator’s decision was reinstated.
The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. 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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(d) If the decision of the board effectively represents a reversal of a prior
ruling of either the commission or 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 provisions, is clearly the result of erroneous conclusions
of law, or is so clearly wrong based upon the evidentiary record that even when all
inferences are resolved in favor of the board’s findings, reasoning and conclusions,
there is insufficient support to sustain the decision. The court may not conduct a de
novo re-weighing of the evidentiary record.
See Hammons v. W. Va. 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 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. W. Va. Off. of
Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011).
Ms. Whitt, a welder assistant, completed an Employees and Physicians’ Report of Injury
on May 18, 2019, indicating she injured her left ankle, back, and left wrist when she fell at work
that day. The physicians’ section was completed at Raleigh General Hospital. Treatment notes
from Raleigh General Hospital that day indicate Ms. Whitt sought treatment for a work-related fall
and was diagnosed with ankle strain and back pain.
Ms. Whitt was treated at New River Health on May 20, 2019, for a fall at work in which
she struck her shoulders, back, and neck on the ground. Ms. Whitt reported pain in her upper back,
neck, lower back, and left foot. She was diagnosed with left ankle, lumbar, and neck sprains. On
May 28, 2019, Ms. Whitt sought treatment from A. Mirza, M.D. Ms. Whitt reported that she was
unable to walk or return to work. Dr. Mirza noted that Ms. Whitt may have to be pushed to return
to work. The diagnoses were pain in the foot, neck, and low back.
A May 28, 2019, treatment note from New River Health indicates Ms. Whitt underwent a
cervical x-ray on May 20, 2019, which showed no fracture but did reveal degenerative disc disease.
An ankle x-ray showed no acute injury. Ms. Whitt stated that she was unable to return to work.
She was given a work excuse until June 14, 2019. The claim was held compensable for the left
ankle, low back, and neck on May 31, 2019. No specific conditions were listed.
In a June 11, 2019, treatment note, Dr. Mirza noted that Ms. Whitt reported pain in her
back, neck, shoulders, and left ankle. Dr. Mirza advised physical therapy and stated that Ms. Whitt
did not need to see her again for further treatment. A second Employees’ and Physicians’ Report
of Injury was completed on June 16, 2019, and indicates Ms. Whitt injured her left ankle,
shoulders, back, and neck when she fell at work. The physicians’ section states that Ms. Whitt
injured her left calcaneus and that it was likely the injury aggravated a prior injury.
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Ms. Whitt presented to Beckley ARH Hospital Emergency Room on June 16, 2019, with
left foot and ankle pain. She stated that her pain was severe and worsened by walking and standing.
Ms. Whitt reported that she was released to return to work but was unable to do so due to pain. A
CT scan of the foot showed a cystic lesion on the calcaneum which could be due to osteoid
osteoma. The claims administrator held the claim compensable for left ankle, low back, and neck
sprains/strains on June 17, 2019.
On June 18, 2019, Ms. Whitt returned to Dr. Mirza for left foot, low back, and neck pain.
It was noted that the claim was held compensable for lumbar strain. Ms. Whitt was taken off of
work for an additional two weeks. Ms. Whitt again sought treatment from Beckley ARH Hospital
Emergency Room on June 30, 2019, and was diagnosed with ankle sprain/strain. It was noted that
Ms. Whitt reported severe pain in her ankle, swelling, and difficulty bending her toes. Ms. Whitt
was supposed to return to work the following day but felt she was unable to do so. She was given
two days off of work and instructed to follow up with her physician.
A. E. Landis, M.D., performed evaluation on July 11, 2019, in which it was noted that Ms.
Whitt requested a change of physicians from Dr. Mirza to Dr. Landis. Dr. Landis recommended
an additional four weeks of physical therapy and stated Ms. Whitt could return to light duty work
if it was available. Ms. Whitt returned on July 23, 2019, and Dr. Landis recommended four more
weeks of physical therapy followed by work conditioning/hardening.
A July 30, 2019, bone scan was performed at Beckley ARH and showed no active bone
lesion in the left ankle. It was noted that Ms. Whitt should be checked for Osgood-Schlatter’s
disease and that she may have degenerative facet arthritis in her lumbar spine. Ms. Whitt
underwent physical therapy on July 31, 2019, and reported that her neck, back, and shoulder pain
were not improving. Additional physical therapy was recommended.
A left ankle MRI was performed on July 31, 2019, and showed a mass consistent with a
cystic lesion. There was no evidence of acute traumatic injury, and no abnormal signals of the
muscles or tendons were found. Ms. Whitt returned to Dr. Landis on August 20, 2019, and
continued physical therapy was recommended. Dr. Landis stated that he was releasing Ms. Whitt
from his care, and he recommended an Independent Medical Evaluation.
On September 10, 2019, David Soulsby, M.D., performed an Independent Medical
Evaluation in which he opined that Ms. Whitt required no further treatment for the compensable
injury. Dr. Soulsby stated that Ms. Whitt’s continued neck and back pain were the result of
degenerative disc disease. The continued left ankle symptoms were the result of the cystic
formation in the ankle that is unrelated to the compensable injury. Dr. Soulsby concluded that Ms.
Whitt’s compensable injuries had resolved.
The Office of Judges modified the June 17, 2019, claims administrator decision and added
bilateral shoulders as a compensable component of the claim in its March 6, 2020, Order. It found
that Ms. Whitt initially stated that she injured her left ankle, back, and left wrist when she fell on
May 18, 2019. Two days later, she reported that she hit her shoulders, back, and neck on the ground
when she fell. When she saw Dr. Mirza on June 11, 2019, Ms. Whitt reported that she still had
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pain in her shoulders. The Office of Judges noted that the June 16, 2019, Report of Injury indicates
Ms. Whitt sustained injuries to her left ankle, back, neck, and shoulders. In June 17, 2019, physical
therapy treatment notes, Ms. Whitt reported that she injured her shoulders when she fell at work.
Ms. Whitt testified in a September 12, 2019, deposition that when she fell, she struck both of her
shoulders on the ground. The Office of Judges found her testimony to be reliable and supported
by the evidence of record.
The Board of Review reversed the Office of Judges’ Order and reinstated the claims
administrator’s decision on August 24, 2020. It found that though Ms. Whitt reported some
shoulder pain, a physician has not provided a diagnosis for the bilateral shoulders. The Board of
Review noted that the West Virginia Supreme Court of Appeals has held on numerous occasions
that pain is a symptom, not a diagnosis. The Board of Review therefore concluded that the bilateral
shoulders cannot be added to the claim without a specific diagnosis.
After review, we agree with the reasoning and conclusions of 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. Barnett v. State Workmen’s Comp.
Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970). Though Ms. Whitt reported some symptoms in
her bilateral shoulders, no physician has made a specific diagnosis in regard to the shoulders other
than pain. This Court has consistently held that pain is a symptom, not a diagnosis. See Harpold
v. City of Charleston, No. 18-0730, 2019 WL 1850196 at *3 (W. Va. Apr. 25, 2019)
(memorandum decision) (holding that left knee pain is a symptom, not a diagnosis, and therefore
cannot be added to a claim), Radford v. Panther Creek Mining, LLC, No. 18-0806, 2019 WL
4415245 at *3 (W. Va. Sep. 13, 2019) (memorandum decision) (holding that neck and shoulder
pain cannot be added to a claim as they are symptoms, not diagnoses). Because there has been no
diagnosis made for the shoulders, they cannot be added to the claim.
Affirmed.
ISSUED: February 25, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Alan D. Moats, sitting by temporary assignment.
DISSENTING:
Justice William R. Wooton
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WOOTON, Justice, dissenting:
I dissent to the majority’s affirmance in this case, which, like the Board of Review,
disregards the Office of Judge’s decision to add bilateral shoulders as a compensable component
to petitioner Billie L. Whitt’s claim after considering all of the evidence. I find the Board of
Review’s reversal to be contrary to the evidence and the law and therefore respectfully dissent.
The issue is whether petitioner’s shoulders were injured as a result of her falling down a
skid pile while working as a welder assistant. Compensability for purposes of workers’
compensation is determined by three elements that must coexist: 1) a personal injury; 2) received
in the course of employment; and 3) resulting from that employment. Syl. Pt. 1, Barnett v. State
Workmen’s Compensation Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970); accord Jordan v.
State Workmen’s Compensation Comm’r, 156 W. Va. 159, 163, 191 S.E.21d 497, 500 (1972).
Here, the records establishes that petitioner initially stated that she injured her left ankle,
back, and left wrist when she fell on May 18, 2019. However, two days later she reported that she
hit her shoulders, back, and neck on the ground when she fell. When she saw Dr. A. Mirza, her
treating physician, on June 11, 2019, petitioner reported that she still had pain in her shoulders. In
its decision, the Office of Judges noted that the June 16, 2019, second Employees’ and Physicians’
Report of Injury indicates that petitioner sustained injuries to her left ankle, back, neck, and
shoulders. In a physical therapy evaluation dated June 17, 2019, petitioner reported that she
injured her shoulders when she fell at work. Further, it was noted that “[a]ctive movement of
shoulders was restricted by her tone and pain . . . .” A treatment goal was to increase and restore
the range of motion in the shoulders. Petitioner also testified in a deposition that her fall impacted
several body parts, including her shoulders, and that she stated that she continues to have shoulder
problems.
Succinctly stated, the evidence and law supported the decision of the Office of Judges to
add bilateral shoulders as a compensable component of petitioner’s claim because she proved that
she suffered an injury to her shoulders during the course of and as a result of her employment.
See id. The majority and the Board of Review erred in their decisions to the contrary.
Based on the foregoing, I respectfully dissent.
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