                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

JOHN WILLIAMS JR.,                                                                  FILED
                                                                                 February 3, 2017
Claimant Below, Petitioner                                                    RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

                                                                                OF WEST VIRGINIA

vs.)   No. 16-0177 (BOR Appeal No. 2050510)
                   (Claim No. 2013024601)

ARCELORMITTAL USA XMB PRINCETON DIVISION,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner John Williams Jr., by Jerome J. McFadden, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. ArcelorMittal USA XMB
Princeton Division, by Michael A. Kawash, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated January 26, 2016, in
which the Board affirmed a May 5, 2015, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s June 5, 2013, decision
rejecting the claim. The Court has carefully reviewed the records, written arguments, and
appendices contained in the briefs, and the case is mature for consideration.

       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.

        Mr. Williams, a roof bolter at a coal mine, alleges an injury to his back occurred on
March 6, 2013. Mr. Williams testified in a hearing before the Office of Judges that he notified
both his supervisor and his co-workers of the injury immediately. Mr. Williams sought medical
attention on March 8, 2013, from Abed Koja, M.D. Dr. Koja had been treating Mr. Williams for
low back pain for quite some time. His impression was a herniated lumbar disc at L5-S1. He
noted that the condition remained unchanged.


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        Mr. Williams underwent an independent medical evaluation with Paul Bachwitt, M.D.,
on May 17, 2013. Dr. Bachwitt reviewed Mr. Williams’s medical records, which revealed that he
had been diagnosed with a disc protrusion at L5-S1 and a disc bulge at L4-L5 in 2012, prior to
the alleged injury. Upon evaluating Mr. Williams, Dr. Bachwitt doubted the occurrence of a
work-related injury. He based this determination on the fact that no paperwork substantiated the
claim. Further, Mr. Williams had been suffering from back issues for quite some time. Dr.
Bachwitt diagnosed Mr. Williams with multilevel degenerative disc disease and commented that
it would have taken years to occur. Based on this evaluation, the claims administrator issued a
June 5, 2013, decision rejecting the claim.

        The Office of Judges affirmed the claims administrator’s decision on May 5, 2015. The
Office of Judges determined that Mr. Williams failed to introduce enough credible evidence to
support his position. Mr. Williams stated that there were witnesses to the injury but did not
supply any evidence proving such. Additionally, the application for worker’s compensation
benefits was filled out by Mr. Williams and dated almost three months after the claims
administrator rejected the claim. The physician’s portion was unsigned. Medical records showed
that Mr. Williams had a disc protrusion and disc bulge prior to the injury. Further, Dr. Koja
stated the condition remained unchanged only two days after the alleged injury. Finally, Dr.
Bachwitt determined no injury had occurred because the condition would have taken years to
occur. The Office of Judges found that Mr. Williams did not introduce credible evidence in
support of his claim and failed to establish he sustained a work-related injury. The Board of
Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed
its Order on January 26, 2016.

        We agree with the reasoning and conclusions of the Office of Judges as affirmed by the
Board of Review. Mr. Williams has failed to submit sufficient evidence to show that he suffered
a work-related injury. Mr. Williams had significant issues with his lower back prior to the
alleged injury and, Dr. Koja noted that his condition remained unchanged. Dr. Bachwitt noted
that this condition would have taken years to occur. There is not enough evidence to show an
injury occurred.

        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 based upon a material misstatement or mischaracterization of the
evidentiary record. Therefore, the decision of the Board of Review is affirmed.



                                                                                        Affirmed.




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ISSUED: February 3, 2017

CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Elizabeth D. Walker

DISSENTING:
Justice Menis E. Ketchum




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