James G. Hunt v. Meadow River Hardwood Lumber, LLC

FILED
April 20, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
JAMES G. HUNT,
Claimant Below, Petitioner
vs.) No. 21-0094 (BOR Appeal No. 2055672)
(Claim No. 2020023374)
MEADOW RIVER HARDWOOD LUMBER, LLC,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner James G. Hunt, by counsel Reginald D. Henry, appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). Meadow River
Hardwood Lumber, LLC (“Meadow River”), by counsel Toni J. Williams, filed a timely
response.
The issue on appeal is compensability of the claim. The claims administrator rejected the
claim on June 10, 2020. On September 8, 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 January 21, 2021, 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:
(c) 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 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 reweighing 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).
Mr. Hunt filed a workers’ compensation claim alleging an injury to his low back on April
20, 2020. According to his application for benefits, he injured his back picking up a 6-foot board
at Meadow River Hardwood Lumber, LLC (“Meadow River”). An x-ray report of his lumbar
spine revealed diffuse osteopenia, disc space narrowing with osteophytic lipping, and other
degenerative changes.
Meadow River had reason to question Mr. Hunt’s reported injury. An Employer’s
Accident/Incident Investigation Report completed by Human Resources Manager Debra
Brackman on April 20, 2020, noted that Mr. Hunt stated that he injured himself at work at 9:00
a.m., while pulling a 6-foot board when he felt a catch in his lower back. Although there were no
witnesses to the injury, he stated that he told Brandon Tincher about his injury. Further
investigation by Ms. Brackman revealed that Mr. Hunt was not pulling a 6-foot board at 9:00
a.m. on April 20, 2020, as he had alleged. When Ms. Brackman asked Mr. Tincher about Mr.
Hunt’s injury, Mr. Tincher told Ms. Brackman that Mr. Hunt “did not tell him anything.” After
Mr. Hunt returned from Rainelle Medical Center, he told Ms. Brackman that he spoke with
Bradley Ward and safety manager Doug Sykes about his injury, not Mr. Tincher. Mr. Ward
subsequently informed Ms. Brackman that he “knew nothing” about Mr. Hunt’s alleged injury.
Mr. Sykes stated that he did not find out about Mr. Hunt’s alleged injury until later in the day. 1
In a letter dated April 20, 2020, Tearsa Keatley, PAC, stated that Mr. Hunt was seen at
the Rainelle Medical Center for an injury he sustained at work. She placed limitations on his
work activities and released him for light duty work only. In a follow-up note dated May 7, 2020,
Ms. Keatley indicated that Mr. Hunt’s pain was located in the lower left side of his back and
traveled down his left leg. He also reported intermittent numbness and tingling in his left leg.
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Meadow River submitted a signed statement from Bradley Ward dated April 22, 2020,
noting that he did not witness Mr. Hunt’s alleged injury, and he was not asked for help when the
alleged injury took place. A signed statement from William Sykes dated April 22, 2020,
indicated that he did not witness Mr. Hunts alleged injury. Mr. Sykes further stated that he did
not find out about Mr. Hunt’s alleged injury until about 12:30 p.m.
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Ms. Keatley diagnosed Mr. Hunt with lumbar back pain with radiculopathy affecting the lower
left extremity, low back pain, and low back strain. She intended to seek approval for physical
therapy and a possible MRI. In a progress note dated May 21, 2020, Ms. Keatley noted:
“Provider explained to patient that I cannot keep him off from work
indefinitely. That he will need to go and talk with his supervisor, boss, HR
dept and discuss his concerns with returning to work. That if he doesn’t
want to return to work or doesn’t feel he is able or willing, that is something
he will need to discuss with them. That I can only wait for WC to approve
or deny PT and possible MRI.”
Mr. Hunt submitted an Employees’ and Physicians’ Report of Injury form dated June 2,
2020. Mr. Hunt alleged that he injured his low back on April 20, 2020, while lifting a board at
work. The physician’s portion of the Employees’ and Physicians’ Report of Occupational Injury
was completed by staff at Rainelle Medical Center and indicates that he sustained an
occupational injury that did not aggravate a prior injury. Ms. Keatley stated that Mr. Hunt’s
injury resulted in a low back sprain and low back pain. The claims administrator denied Mr.
Hunt’s application for workers’ compensation benefits on June 10, 2020. In its Order, the claims
administrator stated:
“West Virginia Law 23-4-1 General Considerations, ‘An award of a claim
cannot be made in a workers’ compensation case unless it is supported by
satisfactory proof that the workman sustained a personal injury in the course
of and resulting from his employment.’
Medical evidence shows degenerative changes which are chronic and not
acute.
You indicated you were injured at 9:00 a.m. when you were puling [sic]
lumber; however, your work schedule indicates you had rotated to a
different task at 8:00 a.m.
The witness you named denied knowledge of a work accident.”
Mr. Hunt protested the claims administrator’s Order of June 10, 2020.
Mr. Hunt continued to seek medical treatment from Ms. Keatley. In a progress note dated
June 11, 2020, Ms. Keatley noted that, due to pain in his back and numbness in his feet, he was
unable to work. He expressed, “I still can’t work, and I really don’t want to work.” A
neurological examination revealed no gross deficits, and Mr. Hunt displayed a normal gait and
station. On June 15, 2020, Mr. Hunt reported that his back was feeling better, and he wanted to
return to work. Ms. Keatley advised him about the risks of returning to work without testing and
treatment. However, he chose to return to work despite Ms. Keatley’s advice, and he released
Rainelle Medical Center from any liability regarding his decision to return to work.
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Meadow River submitted statements into the record from supervisors, management, and
fellow co-workers which contradict Mr. Hunt’s version of the facts. Initially, Mr. Hunt reported
to Ms. Brackman that the incident occurred at 9:00 a.m. on April 20, 2020. Plant Manager,
Lenny Waid, reported in a July 14, 2020, statement that Mr. Hunt would not have been moving
boards after 8:00 a.m. on the morning of April 20, 2020, because his time of duty ended at 8:00
a.m., when he was reassigned to other job duties in another part of the plant following a ten-
minute break. Mr. Waid also stated that Mr. Hunt told him on several occasions that he was
going to retire in July 2020. A statement from General Manager Jeffrey Zangari, also dated July
14, 2020, noted that Mr. Hunt had told him that he planned on retiring in July 2020. A signed
statement from supervisor Kerry Fleshman stated that Mr. Hunt did not report an injury to him
on April 20, 2020. Mr. Fleshman stated that he did not know about the alleged injury until later
in the day when he asked Ms. Brackman why Mr. Hunt was not at his workstation.
In a signed statement dated July 14, 2020, Ms. Brackman stated that Mr. Hunt came to
see her around 12:30 p.m. on April 20, 2020, to report a back injury. She determined that Mr.
Hunt was not pulling 6-foot boards at 9:00 a.m. on April 20, 2020, because that work was being
performed by Bradley Ward. Ms. Brackman also noted that Mr. Hunt initially told her that he
talked to Brandon Tincher about his injury. However, he later stated that he spoke to Bradley
Ward and William Sykes about his injury, not Brandon Tincher.
Mr. Hunt was deposed on July 27, 2020, and testified that he sustained a work-related
injury to his low back on April 20, 2020. He denied any injuries to his low back prior to April
20, 2020. He testified that the injury occurred between 8:20 a.m. and 8:25 a.m. He stated that his
work-shift began at 6:00 a.m. when he began loading boards of lumber in the back of the mill.
He was being assisted by Brad Ward. While Mr. Hunt and Mr. Ward were moving one of the
boards, he developed a sharp pain in the lower left side of his back. Mr. Hunt told Mr. Ward that
he had injured his back. At that point, Mr. Fleshman told him to go to the office to see the
secretary. Although Mr. Hunt did not specifically tell Mr. Fleshman that he sustained an injury,
he assumed Mr. Fleshman sent him to the office because he knew he was hurt.
In a Final Decision dated September 8, 2020, the Office of Judges affirmed the claims’
administrator’s rejection of the claim and found that Mr. Hunt failed to show by a preponderance
of the evidence that he sustained a compensable injury in the course of and resulting from his
employment. The Office of Judges reasoned that the statements of Ms. Brackman, Mr. Waid, Mr.
Ward, Mr. Sykes, and Mr. Fleshman contradict many of Mr. Hunt’s statements regarding the
alleged injury and undermine the overall credibility of his reported symptoms. Additionally, the
Office of Judges noted that the record contains evidence indicating that Mr. Hunt reported
symptoms predating the alleged incident of April 20, 2020. In an Order dated January 21, 2021,
the Board of Review adopted the findings of fact and conclusions of law of the Office of Judges
and affirmed the Final Decision.
After review, we agree with the decision and reasoning of the Office of Judges, as
affirmed by the Board of Review. Mr. Hunt’s claim rests primarily upon his assertion that he
injured his low back on April 20, 2020, while moving boards at work. However, his sworn
testimony and statements in the claim are contradicted by the statements of his supervisors and
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fellow co-workers. The medical record includes evidence showing that Mr. Hunt was treated in
June 2018 for complaints of a “tearing sensation” in his low back and numbness and coldness in
both feet. The Office of Judges correctly determined that Mr. Hunt has failed to show by a
preponderance of the evidence that he sustained a compensable injury in the course of and as a
result of his employment on April 20, 2020.
Affirmed.
ISSUED: April 20, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice Alan D. Moats, sitting by temporary assignment
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