                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

BRIAN DOUGHTY,                                                                         FILED
Claimant Below, Petitioner                                                         February 13, 2020
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
vs.)   No. 19-0352 (BOR Appeal No. 2053326)                                         OF WEST VIRGINIA
                   (Claim No. 2018020035)

CHARLESTON MORTUARY SERVICE, LLC,
Employer Below, Respondent


                              MEMORANDUM DECISION
      Petitioner Brian Doughty, pro se, appeals the decision of the West Virginia Workers’
Compensation Board of Review (“Board of Review”). Charleston Mortuary Service, LLC, by
Counsel Jane Ann Pancake and Jeffrey B. Brannon, filed a timely response.

       The issue on appeal is compensability. The claims administrator rejected the claim on April
16, 2018. The Office of Judges affirmed the decision in its August 27, 2018, Order. The Order was
affirmed by the Board of Review on January 25, 2019.

        The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. 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. Doughty, a body recovery and transport person, alleges that he was injured in the
course of his employment.1 A February 9, 2011, treatment note from the Center for Pain Relief
indicates Mr. Doughty suffered neck pain, low back pain, and right leg pain due to a June 9, 2010,
compensable injury. The diagnoses included cervicalgia, cervical radiculopathy, and lumbar
radiculopathy. On October 19, 2012, it was noted that Mr. Doughty was taking the medication
Suboxone for opioid addiction.


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        It is unclear from the record what date Mr. Doughty sustained this alleged injury as he
provided multiple dates and mechanisms of injury.
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         A July 24, 2017, treatment note by Zachary Hansen, M.D., indicates Mr. Doughty was
lifting a body a few weeks prior that weighed over four hundred pounds. Mr. Doughty stated that
he tripped while trying to get the legs of the gurney out and felt pain in his groin and lower
abdomen. He also stated that a week following the first injury, he went to pick up a hammer and
felt pain in his back. On October 16, 2017, Mr. Doughty reported that he injured his wrist carrying
a six hundred pound body down some stairs.

         In a December 11, 2017, recorded statement, Mr. Doughty alleged that on December 8,
2017, he reaggravated his hip while lifting a gurney. He asserted that he reported the injury to his
employer and treating physician. Mr. Doughty also reported that he sustained an injury four
months prior but did not file a claim because he was waiting to see if his pain subsided. In a
December 20, 2017, letter, Mr. Doughty requested that he be able to return to work. He stated that
his December 8, 2017, injury was a continuation of an injury he sustained four months prior. He
stated that he refused to be seen by workers’ compensation doctors and wished to see his treating
physician. Mr. Doughty asserted that he was fully capable of returning to full duty work with no
restrictions.

       On February 22, 2018, Mr. Doughty completed a statement to the claims administrator in
which he alleged that he sustained an injury that same day. Mr. Doughty stated that while loading
a body into his vehicle, the gurney got caught and resulted in him injuring his low back and groin.
He stated that he had a similar injury six to eight months prior. Mr. Doughty did not seek
emergency medical treatment for the February 22, 2018, injury and instead called his treating
physician who set up an appointment.

        An Employee’s and Physician’s Report of Injury was completed on February 27, 2018, in
which Mr. Doughty asserted that he injured his lower back and groin while loading a body into a
van on December 8, 2017. The physician’s section was completed by Dr. Hansen who diagnosed
a pulled muscle. In a second Employee’s and Physician’s Report of Injury, dated March 12, 2018,
Mr. Doughty asserted that he injured his groin and lower back on February 23, 2018, while
transferring a body onto a gurney. Dr. Hansen completed the physician’s section and indicated that
the injury aggravated a previous similar work-related injury.

        A March 13, 2018, treatment note by Dr. Hansen indicates that Mr. Doughty reported he
was pulling on a body at work the week prior and injured himself again. A March 28, 2018,
treatment note from Charleston Area Medical Center Emergency Room indicates Mr. Doughty
was treated for neck and lower back pain. He stated that he had intermittent lower back pain
radiating into the right leg for the previous six months. A lumbar x-ray showed mild degenerative
changes.

       Mr. Doughty returned to Dr. Hansen on May 14, 2018, for lower back and right leg pain.
Dr. Hansen noted that Mr. Doughty was injured in December of 2017 but did not file a workers’
compensation claim. It was noted that Mr. Doughty walked with an abnormal gait and had
numbness in his right leg. Dr. Hansen diagnosed lumbago. He noted that Mr. Doughty continued

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to take Suboxone for opioid addiction. A lumbar MRI was performed on May 21, 2018, and
showed degenerative disc disease.

        On July 7, 2018, Mr. Doughty answered interrogatories for his alleged December 8, 2017,
injury. He stated that he injured his back, neck, and mid-section while transporting a five hundred
pound body.

        Dr. Hansen wrote a letter on July 19, 2018, in which he stated that in July of 2017, Mr.
Doughty was carrying a gurney when the legs got caught causing him to feel pain in his groin and
lower abdomen. He said he felt the same pain a week later while doing work at home. Dr. Hansen
stated that Mr. Doughty was seen again in March of 2018 and reported that he injured himself
again while lifting a heavy body. He did not file a claim at that time because he felt his condition
would improve with rest. Mr. Doughty then began experiencing lower back pain with radiation
into the right leg. Dr. Hansen stated that Mr. Doughty had never reported such severe lower back
pain in the past. Dr. Hansen noted that he was taking Suboxone for opioid addiction and that the
medication was somewhat reducing his pain.

         In a July 20, 2018, affidavit, Dale Burger, a manager for the employer, stated that the
employer began implementing drug and alcohol testing on December 7, 2017. Mr. Doughty was
informed of the policy. The first test was administered on December 14, 2017, but Mr. Doughty
did not appear for testing. On February 22, 2018, the second test was administered. Mr. Burger
stated that the surveillance cameras that day showed that Mr. Doughty entered the office where
the test was being administered, saw the test was being administered, immediately left the office,
and drove away in his vehicle. Mr. Burger stated that Mr. Doughty did not report an injury to him
that day and did not clock out before leaving. The owner of the business then called Mr. Burger
and stated that Mr. Doughty sent a text message stating that he was injured that morning.

         Mr. Doughty testified in a hearing before the Office of Judges on July 23, 2018, that he
was injured on December 8, 2017, while lifting a 450 to 500 pound body from a gurney to a table.
He stated that he informed the employer that he “may have pulled something”. Mr. Doughty
testified that he took ten days off of work to recover and returned on December 20, 2017. On cross-
examination Mr. Doughty denied being treated for opioid addiction or taking Suboxone. He also
denied any prior low back or right leg symptoms. Mr. Doughty also denied prior treatment at the
Center for Pain Relief for his neck. He further stated that he had several prior injuries due to lifting
bodies but asserted that his initial injury was on December 8, 2017. He testified that his February
22, 2018, injury was not an injury but rather an aggravation of the December 8, 2017, injury.

        The claims administrator rejected the claim on April 16, 2018. The Office of Judges
affirmed the decision in its August 27, 2018, Order. It concluded that Mr. Doughty’s description
of the alleged injury is inconsistent. He provided two different explanations of the alleged
December 8, 2017, injury. The Office of Judges found that he also provided inconsistent accounts
of his alleged February 22, 2019, injury. Further, Mr. Doughty stated in his December 11, 2017,
recorded statement that his December 8, 2017, injury was an aggravation of an injury that occurred
four months prior. Dr. Hansen’s treatment note from July 24, 2017, indicates that Mr. Doughty
sustained a work-related injury a few weeks prior and then aggravated his back while lifting a
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hammer at home. The Office of Judges also noted that Mr. Doughty denied any groin or low back
symptoms prior to December 8, 2017, but the medical records contradicted the denial. The Office
of Judges noted that though Dr. Hansen completed the Report of Injury for a December 8, 2017,
injury, he indicated on the form that Mr. Doughty had the same symptoms prior to that day.
Further, his July 19, 2018, letter states that Mr. Doughty had low back pain in May of 2014. Based
on a preponderance of the evidence, the Office of Judges concluded that Mr. Doughty did not
sustain a compensable injury in the course of his employment. The Board of Review adopted the
findings of fact and conclusions of law of the Office of Judges and affirmed its Order on January
25, 2019.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. For an injury to be compensable it must be a personal injury that
was received in the course of employment, and it must have resulted from that employment.
Barnett v. State Workmen’s Compensation Commissioner, 153 W.Va. 796, 172 S.E.2d 698 (1970).
In this case, Mr. Doughty provided inconsistent accounts of various work-related injuries in July
of 2017, December of 2017, and February of 2018. Though he completed an application for
benefits for the February 22, 2018, injury, Mr. Doughty did not provide consistent, reliable
evidence to sustain his burden of proof.

        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: February 13, 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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