                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

KATHLEEN J. CROCKARD,                                                                FILED
Claimant Below, Petitioner                                                           July 9, 2020
                                                                              EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
vs.)   No. 18-1026 (BOR Appeal No. 2052931)                                       OF WEST VIRGINIA

                   (Claim No. 2018010288)

WHEELING HOSPITAL, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Kathleen J. Crockard, by Counsel Sandra K. Law, appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). Wheeling Hospital,
Inc., by Counsel Jennifer B. Hagedorn, filed a timely response.

        The issue on appeal is compensability on a no-lost-time basis. The claims administrator
rejected the claim on November 3, 2017. The Office of Judges reversed the decision in its May 16,
2018, Order and held the claim compensable for a lumbar sprain/strain on a no-lost-time basis.
The Order was affirmed by the Board of Review on October 29, 2018.

        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.

        Ms. Crockard, a dietary aide, was injured in the course of her employment on October 16,
2017. The Employees’ and Physicians’ Report of Injury indicated Ms. Crockard was treated at
Wheeling Hospital Emergency Department and diagnosed with a low back muscle strain. The form
indicated she had not been advised to remain off of work for four or more days. The treatment note
from Wheeling Hospital Emergency Department that day indicates Ms. Crockard had right lumbar
pain. It was noted that she had previously undergone an MRI which showed disc disease in the
lumbar spine that could lead to radiculopathy.


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        Ms. Crockard has a history of lower back and right leg pain. A treatment note dated October
23, 2014, by D. Riggle, FNP-C, indicates Ms. Crockard was treated for neuropathy. On September
20, 2014, a treatment note from Advance Family Practice stated that Ms. Crockard was seen for
right leg pain. It was noted that she had neuropathy in her legs as well as a bulging disc. A lumbar
MRI was performed on September 30, 2017, and revealed disc and facet disease, most pronounced
at L4-5 and L5-S1. It was noted that Ms. Crockard had protrusions in a position that could affect
the nerve routes, most pronounced at the right L5-S1 disc.

       Ms. Crockard sought treatment from Ross Tennant, FMP, from Wheeling Hospital, on
October 18, 2017. The note indicates she reported lower back pain that radiated into her right
buttock. Ms. Crockard stated that she had a history of chronic low back pain and that she had
undergone an MRI on September 30, 2017. Mr. Tennant noted that Ms. Crockard had reduced
range of motion in her spine and diagnosed an exacerbation of chronic lower back pain. The claims
administrator rejected the claim on November 3, 2017. A lumbar MRI was performed on
December 20, 2017, and showed no significant change from the September 30, 2017, MRI. There
was a disc bulge at L4-5 with mild canal narrowing at L5-S1.

        Ronald Hargraves, M.D., completed a medication request on December 28, 2017, and
listed the current diagnoses as herniated lumbar disc and right-sided sciatic pain. In a diagnosis
update that same day, Dr. Hargraves listed the primary diagnosis as herniated L4-5 disc and the
secondary diagnosis as degenerative disc disease at L5-S1. Dr. Hargraves completed a medical
statement on December 29, 2017, in which he opined that Ms. Crockard’s condition was due to
her work-related injury. He asserted she should be able to follow up with him for her right leg pain.
In a January 8, 2018, letter, Dr. Hargraves stated that Ms. Crockard had experienced low back and
right leg pain since her work-related injury. He felt she was symptomatic due to her L4-5 disc
herniation. In a January 17, 2018, letter, Dr. Hargraves stated that Ms. Crockard’s condition had
deteriorated, and he was going to perform a L4-5 microdiscectomy. He performed the surgery on
February 7, 2018.

        Ms. Crockard testified in a deposition on February 23, 2018, that she was injured while
lifting objects above her head. She underwent surgery and has not had right leg pain since that
time. She stated that she still experiences low back pain with stiffness. Ms. Crockard admitted to
a low back injury five years prior but denied any ongoing problems after the injury. She testified
that she was treated for bilateral neuropathy in her feet in September of 2017.

        The Office of Judges reversed the claims administrator’s rejection of the claim and held
the claim compensable for a lumbar sprain/strain on a no-lost-time basis in its May 16, 2018,
Order. It found that this Court stated in Jordan v. State Workmen’s Compensation Commissioner,
156 W. Va. 59, 191 S.E.2d 497 (1972), that just because an employee has a preexisting condition,
does not mean he or she cannot suffer a new injury in the course of employment. When there is
evidence of a preexisting injury, a new claim is compensable when it is the result of a definite,
isolated, fortuitous occurrence. The Office of Judges determined that the record shows in this case
that Ms. Crockard has had at least two prior lower back injuries, one of which occurred in the
course of her employment. She reported right lower extremity pain prior to the injury at issue, but
had no complaints of lower back pain at that time. The Office of Judges determined that the
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evidence shows Ms. Crockard was lifting a box on October 16, 2017, when she sustained a lower
back injury and was escorted to the emergency room. This satisfies the requirements of a definite,
isolated, fortuitous event. Ms. Crockard was diagnosed with a low back strain, and it was indicated
that she would not be off of work for four days or more. The Office of Judges found that she
eventually underwent surgery for a herniated lumbar disc. The disc was herniated prior to the
compensable injury, as seen on MRI, and is therefore unrelated to the claim. Ms. Crockard’s
continued temporary total disability was determined to be the result of the non-claim-related
surgery. The Office of Judges therefore found that while the claim was compensable for a lumbar
sprain, temporary total disability benefits should not be granted. The Board of Review adopted the
findings of fact and conclusions of law of the Office of Judges and affirmed its Order on October
29, 2018.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Pursuant to West Virginia Code § 23-4-1, employees who
receive injuries in the course of and as a result of their covered employment are entitled to benefits.
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
Compensation Commissioner, 153 W. Va. 796, 172 S.E.2d 698 (1970). Temporary total disability
benefits will be granted when the period of disability is greater than three days. West Virginia
Code § 23-4-1c. A claimant must submit evidence that he or she is unable to return to employment
as a result of the compensable injury. In this case, it is clear that Ms. Crockard sustained a lumbar
sprain in the course of and resulting from her employment. However, MRIs taken shortly before
and after the injury show that her herniated lumbar disc preexisted the compensable injury and is
therefore not compensable. Ms. Crockard’s continued inability to work is the result of her lower
back surgery, necessitated by the noncompensable herniated disc. Accordingly, the claim was
properly held compensable on a no-lost-time basis.

         For the foregoing reasons, we find that the decision of the Board of Review is not in clear
violation of any constitutional or statutory provision, nor is it clearly the result of erroneous
conclusions of law, nor is it so clearly wrong based upon the evidentiary record that even when all
inferences are resolved in favor of the Board of Review’s findings, reasoning and conclusions,
there is insufficient support to sustain the decision. Therefore, the decision of the Board of Review
is affirmed.

                                                                                            Affirmed.
ISSUED: July 9, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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