                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
                                                                                 October 10, 2017
FORTNER LOGGING, LLC,                                                          RORY L. PERRY II, CLERK
Employer Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


vs.)   No. 17-0049 (BOR Appeal No. 2051414)
                   (Claim No. 2015000211)

MIRANDA WYKLE, widow of
RANDY D. WYKLE (deceased),
Claimant Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Fortner Logging, LLC, by T. Jonathan Cook its attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Miranda Wykle, widow of
Randy D. Wykle (deceased), by Pamela A. Lambert her attorney, filed a timely response.

         The issue on appeal is whether dependent’s benefits should be granted in this claim. This
appeal originated from the July 22, 2014, claims administrator’s decision denying the request for
dependent’s benefits.1 In its June 30, 2016, Order, the Workers’ Compensation Office of Judges
reversed the claims administrator’s decision and granted dependent’s benefits. The Board of
Review’s Final Order dated December 16, 2016, affirmed the Order of the Office of Judges. 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.

       Miranda Wykle, widow of Randy D. Wykle, filed an application for dependent’s benefits
after Mr. Wykle was killed in an accident at his place of employment. Mr. Wykle worked as a

1
 The claims administrator first denied the claim on July 11, 2014, but provided no explanation
for the denial.
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heavy equipment operator and logger. On the afternoon of June 13, 2014, Mr. Wykle was struck
by a felled tree and suffered a blunt force injury to the thorax and abdomen. This trauma caused
complex liver and right kidney lacerations, which further caused exsanguination, the severe
blood loss of an organ, and hemoperitoneum, an accumulation of blood in the space between the
inner lining of the abdominal wall and the internal abdominal organs. On July 22, 2014, the
claims administrator denied Mrs. Wykle’s application for dependent’s benefits pending an
autopsy report.

        An autopsy report dated January 21, 2015, indicated that Mr. Wykle died from blunt
force injury to the head, thorax, abdomen, and lower extremities. Mr. Wykle suffered several
contusions, fractured ribs, and a massive complex laceration to the liver and kidney. The
toxicology report detected no alcohol in Mr. Wykle’s system. However, supratherapeutic
concentrations of Hydrocodone, therapeutic concentrations of Alprazolam and Diazepam, and
the presence of 7-aminoclonazepam were all found present in his bloodstream. According to the
report, Mr. Wykle had no active prescriptions for these medications, although it was mentioned
that he did have a recent prescription access to Hydrocodone. The autopsy concluded that Mr.
Wykle’s death was consistent with multiple traumatic injuries sustained as a heavy equipment
operator struck by a tree limb.

        Mrs. Wykle testified in a deposition before the Office of Judges on January 8, 2016, that
she had been married to Mr. Wykle at the time of his death. Mrs. Wykle testified that she had
filed a dependent’s claim for benefits after Mr. Wykle was killed in an accident on June 13,
2014. Lastly, Mrs. Wykle denied any knowledge that Mr. Wykle was taking prescription
medications without a prescription and she denied that he abused narcotics, antidepressants,
and/or anti-anxiety medications.

        At the request of the claims administrator, George Nichols, M.D., performed a record
review which included the autopsy report, the Report of Occupational Injury, the death
certificate, the application for benefits, and Mrs. Wykle’s deposition. Dr. Nichols wrote that Mr.
Wykle sustained a lethal blunt force injury producing a massive internal hemorrhage while at
work and that a post-mortem examination indicated that he died due to the lethal trauma. Dr.
Nichols noted that Mr. Wykle had traces of prescription medications in his blood and that he did
not have an active prescription for them. He wrote that Hydrocodone is a synthetic opioid and
that the other medications are benzodiazepines, a type of tranquilizer. These medications are
central nervous system depressants and their effects in the brain are addictive and/or synergistic.
Dr. Nichols opined that Mr. Wykle was chemically intoxicated and impaired at the time of his
death.

         On June 30, 2016, the Office of Judges reversed the claims administrator’s decision and
granted Mrs. Wykle dependent’s benefits. The Office of Judges found that an employee’s
application for benefits is governed by statutory, regulatory, and common law as it existed on the
date of injury. State ex rel. ACF Industries, Inc. v. Vieweg, 204 W.Va. 525, 514 S.E.2d 176
(1999). At the time of Mr. Wykle’s death, West Virginia Code § 23-4-2(a) (2005) provided that
notwithstanding anything contained in this chapter, no employee or dependent of any employee
is entitled to receive any workers’ compensation benefits on account of any personal injury to or
                                                2
death to any employee caused by a self-inflicted injury or the intoxication of the employee.
While this law has subsequently been amended, the Office of Judges determined that in light of
ACF Industries, it would apply the statute as written at the time of Mr. Wykle’s death. This
meant that in order to deny Mrs. Wykle’s claim for dependent’s benefits, it had to be proven that
Mr. Wykle was intoxicated at the time of his death and that his intoxication caused the injury
leading to his death.

        The Office of Judges determined that the employer submitted sufficient evidence to prove
that Mr. Wykle was intoxicated at the time of his death. The autopsy contained a toxicology
report that indicated that Mr. Wykle had supratherapeutic and therapeutic doses of prescription
medications in his system without an active prescription. Dr. Nichols also determined that Mr.
Wykle was chemically intoxicated at the time of his death. But the Office of Judges found that
the employer failed to show how Mr. Wykle’s intoxication caused his injury or death. No
evidence was submitted describing how the injury occurred or describing Mr. Wykle’s actions or
inactions directly before the injury. Critical evidence had not been gathered or submitted
regarding this information. West Virginia Code § 23-4-2(a) required proof of intoxication and
causation in order to deny dependent’s benefits. The Office of Judges found that absent evidence
of causation, Mrs. Wykle had proven by a preponderance of the evidence that Mr. Wykle’s death
was caused by an injury received in the course of and as a result of his employment. The Board
of Review adopted the findings of fact and conclusions of law of the Office of Judges and
affirmed its Order on December 16, 2016.

        After review, we agree with the findings of fact and conclusions of law of the Office of
Judges as affirmed by the Board of Review. The governing statute in place at the time of Mr.
Wykle’s death requires proof of intoxication of the employee at death and proof that said
intoxication caused the injury or death. The autopsy report and Dr. Nichols’s report show that
Mr. Wykle was intoxicated. But the employer submitted no evidence regarding how the injury
occurred or how Mr. Wykle’s intoxication caused his own death. As Mrs. Wykle has met her
burden of proof, she is entitled to dependent’s benefits.

        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.

ISSUED: October 10, 2017


CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin J. Davis
                                                3
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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