                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
SHERRY C. WHITE,                                                                  November 29, 2016
Claimant Below, Petitioner                                                     RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs.)   No. 16-0058 (BOR Appeal No. 2050606)
                   (Claim No. 2014033683)

PRINCETON COMMUNITY HOSPITAL ASSOCIATION,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Sherry C. White, by Jerome J. McFadden, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Princeton Community Hospital
Association, by Matthew L. Williams, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated December 22, 2015, in
which the Board affirmed a June 17, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges granted Princeton Community Hospital Association’s
Motion to Dismiss. 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. White, a surgical technician, alleges that she injured her shoulder in the course of
her employment. On her first employees’ and physicians’ report of injury, dated May 16, 2014,
Ms. White stated that she injured her left shoulder from constant lifting of heavy surgical trays
and patients. The physician’s section lists the injury as an occupational disease and the diagnosis
as left shoulder strain due to repetitive heavy lifting. Treatment notes from Princeton Community
Hospital on May 16, 2014, indicate Ms. White was seen in the emergency room for left shoulder
pain present for two months. It was noted the visit was for an accident. She reported that she had
ongoing pain from lifting very heavy patients and repetitive motions. She stated she was
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informed by an orthopedist that she needed to file a workers’ compensation claim because the
injury was result of her job duties.

        The case was reviewed on May 27, 2014, by Rebecca Thaxton, M.D. Dr. Thaxton opined
that the medical documentation provided did not support a work-related left shoulder
sprain/strain. She stated that there was no medical or clinical exam of Ms. White submitted nor
was there a detailed job description provided. Randall Short, D.O., agreed in his May 30, 2014,
physician review. He found no evidence in the job description provided that Ms. White’s job
requirements resulted in a repetitive type injury of the left shoulder. Based on their opinions, the
claims administrator rejected the claim on June 3, 2014.

        On June 6, 2014, Ms. White was treated by Frederick Morgan, D.O. Dr. Morgan
indicated that Ms. White injured her shoulder a month prior while lifting a heavy patient’s leg
during surgery. He diagnosed left shoulder pain, history of injury, and failure of conservative
measures. On August 29, 2014, Ms. White submitted a second application for benefits. In the
employees’ and physicians’ report of injury, she indicated she injured her left shoulder on May
16, 2014, while moving an obese patient. She stated that when she laid the patient’s leg down,
her left shoulder popped. The physician’s section, signed by Dr. Morgan, lists the injury as an
occupational injury.

        On November 10, 2014, the claims administrator sent a letter to Ms. White informing her
that it had received a November 7, 2014, request for a new ruling in the claim for an
occupational injury as opposed to an occupational disease. The claims administrator stated that in
claim number 2014009409 with a date of injury of May 16, 2014, the claims administrator
clearly stated the disability complained of was not the result of an injury or disease received in
the course of employment. It stated that it considered both options in its decision and a new
claim decision was unwarranted.

        A hearing was held before the Office of Judges on March 13, 2015, in which counsel for
Ms. White argued that occupational diseases and occupational injuries are two separate entities.
They have different elements of proof, different deadlines for filing, and are established in
different statutory provisions. He argued the claims administrator decided the occupational injury
claim before it was even filed because it included a denial of an occupational disease or injury
when Ms. White filed her claim for an occupational disease. The claims administrator argued
that this case does not involve separate claims. The injury involves the same incident, on the
same day, to the same body part. It is therefore one claim. The first claim was denied and the
protest period passed. It stated that Ms. White even wrote a statement saying she was not
protesting the decision. It asserted that she is merely attempting to get her claim heard for a
second time, which is not allowed.

        The Office of Judges granted Princeton Community Hospital Association’s Motion to
Dismiss on June 17, 2015. It found that though Ms. White argued that the first request for
benefits was filed as an occupational disease claim, a review of the form shows that her portion
of the form makes no distinction between an occupational disease and a traumatic injury. The
form does not ask the claimant which kind of injury it was. It does ask the physician, and in this
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case, the injury was listed as an occupational disease due to repetitive heavy lifting. The Office
of Judges found that Dr. Short reviewed the application and opined that there was no evidence
that her job duties resulted in a repetitive type injury. He therefore concluded the claim was
properly denied. The claims administrator rejected the first claim. The Office of Judges stated
that if Ms. White disagreed with the decision, she had the right to file a protest before the Office
of Judges and to file evidence to support her claim. She chose not to do so. The Office of Judges
found that Ms. White did not file her second application until approximately thirty-six days after
the period for filing a protest had expired. In the second application, a different physician, Dr.
Morgan, stated it was an occupational injury; however, Ms. White’s section is essentially the
same as the first, indicating she stopped working on the same date for pain in the same body part.

         The Office of Judges acknowledged some differences between the forms. The second
application listed a date of injury and the description of the injury changed from constant lifting
of heavy surgical trays and patients to moving a patient to a stretcher and felt her left shoulder
pop. However, the Office of Judges disagreed with Ms. White’s assertion that she should be able
to file a second application for an occupational injury instead of a disease. The Office of Judges
found that her first application was properly addressed by the claims administrator. She had the
right to protest that decision if she disagreed and she failed to do so in the allotted time period.
The Office of Judges concluded that the claims administrator already ruled on the application for
benefits relating to her left shoulder injury with a date of last exposure/injury of May 16, 2014.
The claims administrator’s decision was based upon the assumption of an occupational disease,
as Ms. White’s physician indicated on the form. Nevertheless, Ms. White failed to protest the
denial and is not entitled to a second attempt by asserting an argument or legal theory she could
have, but failed to make, in her initial claim application. The Board of Review adopted the
findings of fact and conclusions of law of the Office of Judges and affirmed its Order on
December 22, 2015.

       After review, we agree with the reasoning of the Office of Judges and conclusions of the
Board of Review. Ms. White is attempting to get a second ruling for the same claim for an injury
to the same body part on the same day. She had the opportunity to protest the claims
administrator’s denial of her first application for benefits and failed to do so within the allowed
time frame. She does not now get a second chance with a new legal theory. The motion to
dismiss was properly granted.

        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: November 29, 2016

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




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