                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

SCOTT E. LYTTON,
                                                                                         FILED
Claimant Below, Petitioner                                                              July 31, 2020
                                                                                  EDYTHE NASH GAISER, CLERK
                                                                                  SUPREME COURT OF APPEALS
vs.)   No. 19-0264 (BOR Appeal No. 2053403)                                           OF WEST VIRGINIA
                   (Claim No. 2018011289)

AAA ASSOCIATES STAFFING, LLC,
Employer Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Scott E. Lytton, by Counsel John H. Shumate Jr., appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review). AAA Associates
Staffing, Inc., by Counsel Charity K. Lawrence, filed a timely response.

        The issue on appeal is the compensability of the claim. The claims administrator rejected
the claim on November 15, 2017. The Workers’ Compensation Office of Judges (“Office of
Judges”) affirmed the claims administrator’s decision in an Order dated September 10, 2018. This
appeal arises from the Board of Review’s Final Order dated February 25, 2019, in which the Board
of Review affirmed the decision of the Office of Judges.

       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. Lytton was employed by AAA Associates Staffing, LLC, and assigned to work for
Synergy Sand, LLC, as a heavy equipment mechanic and shop foreman. He worked there from
March 19, 2017, through the date of his allegedly work-related injury. On October 2, 2017, he
sustained an injury to his lower back and left lower extremity while bending over and pushing
down contents of a trash can at the Synergy Sand Shop at Valley Grove, West Virginia. Mr. Lytton
sought treatment at New River Family Health Center on October 3, 2017. An examination revealed
lumbago with sciatica. An injection of Toradol and Kenalog was given. An MRI was planned.


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       On October 12, 2017, Mr. Lytton began treating at Pinnacle Chiropractic Health and
Wellness, PLLC, for an acute onset of lumbopelvic pain with radiation into the left post glute and
thigh and severe spasm of the left gluteal musculature and hamstrings. He underwent six
chiropractic treatments. He underwent a lumbar MRI at Community Radiology on October 26,
2017, based on a referral from Pinnacle Chiropractic. The MRI revealed a small to moderate broad
based central and left paracentral disc herniation at L5-S1 resulting in severe lateral recess
compression and a 13 x 10 mm extruded disc fragment extending anteriorly from the L5-S1 disc
space resulting in severe spinal stenosis. The MRI also gave an impression of severe left neural
foraminal stenosis at the L5-S1 level from facet arthropathy and bulging stenosis. Due to the
findings of the MRI, chiropractic treatment was stopped on October 27, 2017.

        Mr. Lytton reported to the Emergency Department at Ruby Memorial Hospital on October
29, 2017, for further treatment based on Dr. Flint’s advice. He reported that his pain had been
waxing and waning but progressively worsening over time. He was referred to the WVU Spine
Clinic for follow-up treatment.

        Mr. Lytton completed a Report of Occupational Injury on October 29, 2017, stating he was
injured on October 2, 2017, when he pushed down trash in a can. The physician’s section was
signed by Mr. Lytton. The name of the physician/hospital states WVU Ruby. The physician section
does not indicate whether Mr. Lytton had an occupational injury or disease, and it reported no
diagnosis.

        AAA Associates Staffing, Inc., completed an Employer’s Report of Occupational Injury
on October 30, 2017. The report indicated that the injury was witnessed by Michael Kessinger, a
supervisor for the employer. Mr. Kessinger completed a Supervisory Investigation Report on
October 30, 2017. Mr. Kessinger stated that Mr. Lytton was going to take out the trash, and as he
pushed down the trash into the can in order to tie up the bag, he fell to his knees. Mr. Kessinger
stated that Mr. Lytton was able to return to work with light duty restrictions.

       By letter dated October 31, 2017, the claims administrator reported that it had been notified
that Mr. Lytton was injured and that his injury may have occurred in the course of his employment.
Mr. Lytton was advised that the claims administrator would be collecting information to determine
whether or not the injury should be covered by workers’ compensation. He was instructed to
complete an Employees’ and Physicians’ Report of Occupational Injury or Disease and return the
application as soon as possible. A second letter was sent on October 31, 2017, which included a
Report of Occupational Injury. The letter informed Mr. Lytton that if he failed to return the Report
of Occupational Injury within ten days, his claim could be denied.

       Mr. Lytton underwent a lumbar x-ray on November 2, 2017, which revealed mild
degenerative changes of the lumbar spine with moderate loss of disc space height at L5-S1.
Vertebral body height and alignment were found to be preserved. The x-ray revealed mild endplate
degenerative changes at T12-L1 and L1-L2. The impression was mild degenerative changes. On
November 3, 2017, Mr. Lytton underwent a left L5-S1 discectomy performed by John France.
M.D. The surgical note stated that he woke up on October 2, 2017, with severe pain radiating

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down his left leg after pushing some heavy equipment the day before. The postoperative diagnoses
were left L5-S1 extruded herniated disc with cauda equine syndrome.

        On November 6, 2017, the claims administrator sent a letter to Mr. Lytton requesting that
he contact their office as soon as possible as they had been unable to contact him. By Order dated
November 15, 2017, the claim was denied because an investigation of the circumstances and
events found sufficient inconsistencies and contradictions to conclude that Mr. Lytton was not
injured in the course of and as a result of his employment. The claims administrator also listed a
reason for denial as Mr. Lytton’s failure to comply with the claim investigation. Mr. Lytton
protested the claims administrator’s decision. On November 30, 2017, the claims administrator
sent correspondence to the wrong address.

         Mr. Lytton testified at an evidentiary hearing held on April 10, 2018, that on the alleged
date of injury, he experienced immediate low back and left leg pain. The left lower extremity pain
extended to his toes. He did not experience radicular symptoms in the right lower extremity. He
testified that the injury was witnessed by Mr. Kessinger, who completed an incident report the
following day. He testified that he was assigned light duty desk work through the time of his
surgery. Mr. Lytton testified that he has constant left lower extremity numbness, extending down
to half of his left foot into his left toes. He also testified that the claims administrator had his
address incorrectly listed in his file.

        Jonathan Luchs, M.D., performed a May 9, 2018, Age of Analysis review of Mr. Lytton’s
October 26, 2017, lumbar MRI. Dr. Luchs stated that he observed “no evidence for annular tear to
suggest acute disc herniation. The disc herniation with extrusion was superimposed upon
prominent degenerative changes at the L5-S1 disc, which puts the disc at risk for disc herniation
and extrusion.” Dr. Luchs concluded that the MRI of Mr. Lytton’s lumbar spine, performed
twenty-five days after the alleged injury, demonstrates degenerative disc disease and degenerative
arthroscopy, all of which is chronic. There was no evidence to suggest the herniation was acute.

        On September 10, 2018, the Office of Judges concluded that the preponderance of the
evidence does not support a finding that Mr. Lytton sustained an injury in the course of and as a
result of his employment on October 2, 2017. The Office of Judges reasoned that the only firm
diagnosis within the medical records was given by Dr. France, who diagnosed Mr. Lytton with a
left L5-S1 extruded herniated disc with cauda equine syndrome. However, the Office of Judges
found that the findings of Dr. France, as well as the other medical records in the claim, do not give
an opinion regarding causation. The Office of Judges further reasoned that Mr. Lytton’s case is
analogous to Stiltner v. West Virginia Office of Insurance Commissioner and Sara Lee, No. 10-
1564 (W. Va. Supreme Court, June 18, 2012) (memorandum decision), where this Court upheld a
claims administrator’s order denying compensability of the claim. The Court found that an injury
such as the one alleged is the type of injury for which a proffer of medical evidence is necessary
to establish that the medical condition resulted from employment. Because Mr. Lytton offered no
evidence of causation, the Office of Judges concluded that he did not prove by a preponderance of
the evidence that he sustained an injury in the course of and as a result of his employment on
October 2, 2017. The Board of Review adopted the findings of facts and conclusions of law of the
Office of Judges and affirmed the rejection of the claim in an Order dated on February 25, 2019.
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        After review, we agree with the decision of the Board of Review. The evidentiary record
establishes that Mr. Lytton has a history of back pain with sciatica. Furthermore, none of the
medical records provide an opinion that the injury complained of occurred as a result of and in the
course of Mr. Lytton’s employment on October 2, 2017.

        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: July 31, 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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