                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
REGIS CORPORATION,                                                              November 18, 2013
                                                                             RORY L. PERRY II, CLERK
Employer Below, Petitioner                                                 SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

vs.)   No. 12-0226 (BOR Appeal No. 2046218)
                   (Claim No. 2011005360)

HEATHER NICHOLS,
Claimant Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Regis Corporation, by Denise D. Pentino and Aimee M. Stern, its attorneys,
appeals the decision of the West Virginia Workers’ Compensation Board of Review.

        This appeal arises from the Board of Review’s Final Order dated January 26, 2012, in
which the Board affirmed an August 2, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s August 23, 2010,
decision denying Ms. Nichols’s application for workers’ compensation 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 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. Nichols worked as a hairdresser for Regis Corporation. On August 4, 2010, Ms.
Nichols was bending to wash a client’s hair when she felt a pop and suffered an immediate onset
of radiating pain. On September 2, 2010, Dr. Lubicky diagnosed Ms. Nichols with a broken
pedicle screw on the right at the L4 level and idiopathic scoliosis, and concluded that most likely
she had pseudoarthrosis that caused the screw to break. On October 15, 2010, Dr. Lubicky
performed an exploration of posterior spinal fusion mass, and concluded that no pseudoarthrosis
was present under the transverse connector. On April 19, 2011, Dr. Dauphin opined that Ms.
Nichols had a broken screw because of pseudoarthrosis. The claims administrator denied Ms.
Nichols’s application for workers’ compensation benefits.

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        The Office of Judges reversed the claims administrator’s decision and held the claim
compensable because Ms. Nichols suffered an injury in the course of and as a result of her
employment. Regis Corporation disagrees and asserts that the Board of Review erred in adopting
the Office of Judges’ findings of fact that inaccurately stated Dr. Lubicky’s opinion. It further
asserts that Dr. Dauphin concluded Ms. Nichols’s work activities could not have caused the
screw to break.

        The Office of Judges determined that Ms. Nichols’s preexisting scoliosis did not cause
her current symptoms but that her symptoms were caused by the isolated event of August 4,
2010. These symptoms did not exist prior to August 4, 2010. The Office of Judges determined
that Dr. Dauphin’s report is unpersuasive because even though the radiographic evidence showed
pseudoarthrosis, Ms. Nichols described an isolated fortuitous event that amounted to an injury
within the meaning of Dickerson v. State Workman’s Comp. Comm’r, 173 S.E.2d 388, 154
W.Va. 7 (1970). The Office of Judges concluded that a claimant is not deprived of compensation
merely because he is afflicted with a malady at the time of employment. Martin v. State Comp.
Comm’r, 149 S.E. 824, 107 W.Va. 583 (1929). The Office of Judges held that the preponderance
of the evidence shows that Ms. Nichols suffered an injury in the course of and as a result of her
employment on August 4, 2010. The Board of Review reached the same reasoned conclusions in
its decision of January 26, 2012. We agree with the reasoning and conclusions of the Board of
Review.

        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: November 18, 2013

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




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