                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                 FILED
                                                                                October 3, 2014
                                                                            RORY L. PERRY II, CLERK
SHIRLEY CLAWSON,                                                          SUPREME COURT OF APPEALS
Claimant Below, Petitioner                                                    OF WEST VIRGINIA




vs.)   No. 13-0113 (BOR Appeal No. 2047339)
                   (Claim No. 2012020367)

GOODWILL OF PITTSBURGH,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Shirley Clawson, by Robert L. Stultz, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Goodwill of Pittsburgh, by Patricia E.
McEnteer, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated January 10, 2013, in
which the Board reversed a June 14, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s December 29,
2011, decision rejecting the claim. The Office of Judges held the claim compensable for a
thoracic strain, a lumbar strain, and an L5-S1 disc herniation. 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 on a material
misstatement or mischaracterization of particular components 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.

        Ms. Clawson worked for Goodwill of Pittsburgh. On December 13, 2011, she was seated
on the floor fixing a television. When she attempted to stand up, she felt a pinch in her lower
back which caused pain in her back and hips. Following the incident, Ms. Clawson was treated
by Deanna Fernandez, D.C., and Emmanuel Munoz, M.D., who found that Ms. Clawson had a
thoracic strain and a lumbar strain. Dr. Fernandez and Dr. Munoz also found that Ms. Clawson
had radiculitis. Ms. Clawson filed an application for workers’ compensation benefits based on
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this injury. On December 29, 2011, the claims administrator rejected her claim because there was
no specific incident causing her condition. Ms. Clawson then underwent two separate MRI scans
of her lower back which both showed a herniation at the L5-S1 disc. Bill Hennessey, M.D.,
evaluated Ms. Clawson. He noted that she had a history of lower back and hip pain. He also
noted that she had received treatment for sciatic radicular pain in the early part of 2011. Dr.
Hennessey found that there was insufficient evidence that leaning forward from the sitting
position or standing up from the seated position caused her injury. Dr. Hennessey suspected that
Ms. Clawson had S1 nerve root irritation prior to the date of injury which had become
spontaneously worse while Ms. Clawson was at work. On June 14, 2012, the Office of Judge
reversed the claims administrator’s decision. The Board of Review reversed the Order of the
Office of Judges and reinstated the claims administrator’s decision on January 10, 2013, leading
Ms. Clawson to appeal.

        The Office of Judges concluded that the claim should be held compensable for a thoracic
strain, a lumbar strain, and a herniated disc at L5-S1. The Office of Judges determined that Ms.
Clawson’s low back and radicular pain had increased on December 13, 2011. The Office of
Judges also noted that both MRIs, which were taken after the date of injury, showed that she had
a herniated L5-S1 disc. The Office of Judges found that, since there was no diagnosis of a
herniated disc prior to the date of injury, Ms. Clawson must have suffered a new injury on
December 13, 2011.

        The Board of Review concluded that the Office of Judges was clearly wrong because Ms.
Clawson did not sustain her burden of proving that she suffered an injury in the course of and
resulting from her employment. The Board of Review found that Ms. Clawson simply
experienced pain while at work. The Board of Review also noted that Ms. Clawson did not give
a full account of her prior medical history.

        The decision of the Board of Review is based on a material mischaracterization of Ms.
Clawson’s prior medical history. Ms. Clawson’s symptoms and conditions are sufficiently
distinct from her prior history of lower back pain, particularly in terms of severity, that the Office
of Judges was justified in finding that she had suffered a new injury on December 13, 2011. The
treatment notes of Dr. Fernandez and Dr. Munoz demonstrate that Ms. Clawson suffered a
thoracic and lumbar strain. Additionally, the MRI evidence in the record shows that Ms.
Clawson incurred an L5-S1 herniated disc which was not present in any of her prior medical
records. The evidence in the record shows that these conditions were sustained in the course of
and resulting from her employment. Dr. Hennessy’s suggestion that the disc herniation
spontaneously developed is speculative and was not sufficient to justify the Board of Review’s
decision to reverse the Order of the Office of Judges.

        For the foregoing reasons, we find that the decision of the Board of Review is based on a
material misstatement or mischaracterization of particular components of the evidentiary record.
Therefore, the decision of the Board of Review is reversed and remanded with instructions to
reinstate the Office of Judges’ June 14, 2012, Order, which held Ms. Clawson’s claim
compensable.

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                                   Reversed and Remanded.

ISSUED: October 3, 2014

CONCURRED IN BY:
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin




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