                             STATE OF WEST VIRGINIA
                                                                                   FILED
                          SUPREME COURT OF APPEALS                              March 10, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
DEBRA PETRICHKO,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-0896 (BOR Appeal No. 2046895)
                   (Claim No. 2011023745)

C & A INDUSTRIES, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Debra Petrichko, by Robert Stultz, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. C & A Industries, Inc., by Michael
Watson, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated June 29, 2012, in which
the Board affirmed a February 7, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s October 21, 2010, decision
denying 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.

        Ms. Petrichko alleges she was injured in the course of her employment when she fell at
work on October 12, 2010. In her deposition on May 12, 2011, she testified that she was on a
break outside when she turned around and fell down. She then experienced severe weakness in
her legs and was unable to stand or walk on her own. An emergency room report from that night
indicates that the final diagnosis was lower extremity weakness of unclear etiology. The report of
injury indicates that Ms. Petrichko’s condition was non-occupational. The claims administrator
denied her claim on October 21, 2010. Ms. Petrichko was able to work for approximately another
month and a half before she became unable to perform her occupational duties.
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        Ms. Petrichko has a history of weakness in her lower extremities dating back as far as
2007. She reported to Dale Rader, M.D., in July of 2007 that she was having problems with back
pain that radiated into her legs. She also reported experiencing weakness. The treatment note of
John Porter, D.O., dated September 24, 2007, indicates that Ms. Petrichko developed intermittent
weakness in her left leg in May of 2007. She reported that she fell twice in the previous two
months due to weakness in her left leg. In a letter from October of 2007, Rajkumor Joshi, M.D.,
stated that she continued to experience weakness in her left leg and pain in her back. She also
continued to have problems with numerous falls and was unable to work at that time due to her
condition.

         Peter Apel, M.D.,’s August 20, 2011, treatment note indicates that Ms. Petrichko
underwent surgical decompression of the cervical spine in December of 2010, and was still
experiencing difficulty with weakness in her upper and lower extremities as well as neuropathic
and myelopathic pain. It was his opinion that her symptoms were due to persistent myelomalacia
and a spinal cord injury secondary to acute myelopathy which caused her fall on October 12,
2010. He opined that she had pre-existing cervical stenosis, but she was not myelopathic before
the fall. He attributed her symptoms to a fall at work.

        Andrew Sumich, M.D., evaluated Ms. Petrichko on August 23, 2011, and found that her
condition was not related to her occupational duties. He determined that she had pre-existing
degenerative cervical stenosis which likely caused weakness in her legs and caused her to fall at
work. He noted that his opinion was based on the fact that she landed on her buttocks when she
fell and did not sustain trauma to her head or neck. Also, an MRI from December of 2010
showed cervical stenosis consistent with significant degenerative and spondylitic disease rather
than an acute injury.

        The Office of Judges affirmed the decision of the claims administrator in its February 7,
2012, Order. The Office of Judges determined that Ms. Petrichko’s fall was due to leg weakness.
It noted that the emergency room report from that day indicated that she did not have an
occupational injury. She was diagnosed with lower extremity weakness of unclear etiology. The
Office of Judges concluded that Dr. Apel’s opinion, that the fall caused Ms. Petrichko’s
condition, was not supported by the evidentiary record. She has a history of weakness in her legs
that has caused her to fall on several occasions. The opinion of Dr. Sumich was determined to be
the most persuasive. Accordingly, the Office of Judges held that Ms. Petrichko failed to meet her
burden of proof to establish that she sustained an injury in the course of her employment.

       The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its June 29, 2012, decision. This Court agrees with the
reasoning and conclusions of the Board of Review. The evidentiary record illustrates that Ms.
Petrichko has a long history of weakness in her legs that has caused numerous falls. There is no
persuasive evidence in the record to indicate that her condition was caused by her fall at work on
October 12, 2010. Therefore, the decision of the Board of Review is supported by the evidentiary
record and is hereby affirmed.


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        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: March 10, 2014

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




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