                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              March 27, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
EDWIN GRAJEDA,                                                                OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0602 (BOR Appeal No. 2049038)
                   (Claim No. 2012020190)

PILGRIMS PRIDE CORPORATION OF WEST VIRGINIA, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Edwin Grajeda, by Christopher J. Wallace, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Pilgrims Pride Corporation of West
Virginia, Inc., by Stephen M. Mathias, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated May 28, 2014, in which
the Board affirmed a December 6, 2013, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s March 25, 2013, decisions
holding the claim compensable for lumbar sprain/strain and denying temporary total disability
benefits. 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 that the Board of Review’s decision is based upon material
misstatements and mischaracterizations of the evidentiary record. This case satisfies the “limited
circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate
for a memorandum decision rather than an opinion.

       Mr. Grajeda, a laborer, was injured in the course of his employment on December 2,
2011, while stacking boxes. The claim was held compensable for lumbar sprain/strain and
temporary total disability benefits were denied on March 25, 2013. Mr. Grajeda was treated at
Valley Health System Winchester Medical Center the day after the compensable injury occurred
for acute back pain that radiated into his left leg. A lumbar MRI showed acute sciatica and an
acute herniated disc at L5-S1. There was also mild spondylosis with degenerative disc disease at
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L4-5 and L5-S1, mild biforaminal narrowing at L4-5, and mild to moderate biforaminal
narrowing at L5-S1. The employee’s and physician’s report of injury listed the diagnoses as
herniated L5-S1 disc and acute sciatica.

        Mr. Grajeda was treated at Love Memorial Clinic from December 29, 2011, through
August 15, 2012. He was diagnosed with back strain with radiculopathy on the left side, shoulder
pain, cervical strain, and chest wall pain and was sent to physical therapy. It was noted that he
had an abnormal MRI that showed a herniated disc and sciatica. On April 2, 2012, Mr. Grajeda
reported that he had persistent bilateral leg pain. Degenerative disc disease and herniated disc
were added to the diagnosis list. In a March 23, 2013, attending physician’s report, it was
indicated that Mr. Grajeda continued to be off of work for physical therapy and possible pain
management. In response to a question regarding the cause of his disability, the form simply
indicates that he had been off of work since December 2, 2011, for the diagnosis of displacement
of intervertebral disc without myelopathy.

        A physician review was performed by Robert Padgett, M.D., on March 22, 2013. He
ultimately determined that Mr. Grajeda’s repetitive work-related lifting injury is not associated
with the MRI findings of a L5-S1 herniated disc and would be more consistent with a lumbar
sprain/strain. He found no objective evidence to support the Valley Health System Winchester
Medical Center diagnosis of herniated L5-S1 disc. He determined that all MRI findings are pre­
existing and chronic in nature. He concluded that the compensable work-related injury in this
case was a lumbar sprain/strain with pre-existing degenerative disc disease from L4-S1 and a L5­
S1 herniated disc.

       Sushil Sethi, M.D., performed an independent medical evaluation on April 19, 2013, in
which he determined that Mr. Grajeda had reached maximum medical improvement. He
incorrectly stated that Valley Health System Winchester Medical Center’s initial evaluation
found only a lumbar sprain. He opined that the degenerative disease seen on the MRI is
incidental and would have reached the same status due to the normal aging process. He found
5% impairment and opined that Mr. Grajeda could return to work without restrictions.

         The Office of Judges affirmed the claims administrator’s decisions in its December 6,
2013, Order. It found that displacement of intervertebral disc is not a compensable component of
the claim. It determined that the MRI makes clear, in the way that it was written, that the L5-S1
disc protrusion is the result of degenerative disc disease. The Office of Judges stated that it
agreed with Dr. Padgett that Mr. Grajeda’s current complaints are no longer explainable by the
work-related injury and are the result of well-documented, pre-existing spine pathology. Further,
the Office of Judges noted that Dr. Sethi found that Mr. Grajeda had reached maximum medical
improvement and that the degenerative disease found on the MRI is incidental and would have
reached the same status due to the normal aging process of degenerative diseases. In regard to
temporary total disability benefits, the Office of Judges found that the attending physician’s
report from Love Memorial Clinic stated that Mr. Grajeda was temporarily and totally disabled
and had been off of work since December 2, 2011, for displacement of an intervertebral disc.
Because the condition is not a compensable component of the claim, temporary total disability

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benefits were not authorized. The Board of Review adopted the findings of fact and conclusions
of law of the Office of Judges and affirmed its Order on May 28, 2014.

        On appeal, Mr. Grajeda argues that he had no history of lower back problems prior to his
compensable injury. Two days after the injury, he went to Valley Health System Winchester
Medical Center where he had signs of a herniated disc and was diagnosed with an acute
herniated disc at L5-S1. He asserts that Dr. Sethi’s report misrepresented the treatment from
Valley Health System Winchester Medical Center. He also argues that Dr. Padgett’s report lacks
any explanation for the initial emergency room findings. Pilgrim’s Pride Corporation of West
Virginia, Inc., argues that though Dr. Sethi misstated the diagnosis by Valley Health System
Winchester Medical Center, he still addressed the condition of acute herniated disc in his report
and found that it was pre-existing. It stated that Dr. Padgett also found the herniated disc to be
the result of pre-existing degenerative changes. It further argued that Mr. Grajeda has not
requested temporary total disability benefits, and there are no medical reports of record opining
that he is temporarily and totally disabled due to the compensable injury.

         After review, we find that the Board of Review’s decision is the result of material
misstatements and mischaracterizations of the evidentiary record. The Office of Judges relied on
the reports of Drs. Sethi and Padgett as well as the MRI. The Office of Judges found that the
MRI clearly states, in the way that it is written, that the disc protrusion is the result of
degenerative changes. A plain reading of the MRI warrants no such conclusion. The MRI merely
states that Mr. Grajeda has a protruding disc, degenerative changes, and foraminal narrowing. It
does not speak to causality. Dr. Sethi’s report is affected by errors. He incorrectly stated that the
initial evaluation performed shortly after the injury at Winchester Medical Center determined
that Mr. Grajeda merely suffered a lumbar sprain. In fact, the report stated that he suffered an
acute herniated L5-S1 disc. The attending physician’s report stated that he was unable to work
due to a herniated L5-S1 disc. Lastly, the MRI taken shortly after the injury showed a herniated
L5-S1 disc. Pilgrims Pride Corporation of West Virginia, Inc., has failed to provide any objective
evidence to show that the herniated disc did not occur as a result of the compensable injury.

       For the foregoing reasons, we find that the decision of the Board of Review is based upon
material misstatements and mischaracterizations of the evidentiary record. Therefore, the
decision of the Board of Review is reversed and remanded with instructions to hold the claim
compensable for herniated lumbar disc and authorize temporary total disability benefits as
supported by the evidentiary record.



                                                                          Reversed and Remanded.


ISSUED: March 27, 2015



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CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Brent D. Benjamin
Justice Allen H. Loughry II

DISSENTING:
Justice Robin J. Davis
Justice Menis E. Ketchum




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