                              STATE OF WEST VIRGINIA
                                                                                    FILED
                          SUPREME COURT OF APPEALS                                February 26, 2016
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
RANDY L. WILSON,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 15-0351 (BOR Appeal No. 2049928)
                   (Claim No. 2013019898)

MIDKIFF CONSTRUCTION,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Randy L. Wilson, by Anne L. Wandling, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Midkiff Construction, by T.
Jonathan Cook, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated March 31, 2015, in
which the Board affirmed an October 15, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed two claims administrator decisions dated
February 12, 2013, and February 7, 2013, which rejected Mr. Wilson’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.

        Mr. Wilson worked as a construction worker for Midkiff Construction. On November 8,
2012, Mr. Wilson was working with Johnny Midkiff, the owner of Midkiff Construction,
building concrete stairs. Mr. Wilson rode to and from the job site in Mr. Midkiff’s truck. Mr.
Wilson’s work that day involved shoveling concrete. The following morning, Mr. Wilson was
treated at Cabell Huntington Hospital Emergency Room for complaints of right hip and low back
pain. At the time, he admitted that he suffered a low back injury several years earlier, but he did
not attribute his current pain to any definite re-injury. Mr. Wilson alleged that he felt no pain
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when he went to bed the previous night but awoke with severe pain in his low back and right hip.
Mr. Wilson had a CT scan performed on his lower back which revealed degenerative changes.

        Nevertheless, on November 28, 2012, Mr. Wilson filed an application for workers’
compensation benefits alleging that he developed low back pain while shoveling concrete and
lifting concrete forms on November 8, 2012. However, the physician who filled out Mr.
Wilson’s application did not indicate that the injury was work related. The box on Mr. Wilson’s
application form indicating that his condition was the result of an occupational injury was left
unchecked. On the same day that he completed his application, Mr. Wilson was treated by James
Weinstein, M.D., who found that Mr. Wilson had some symptoms in his lower back during
straight leg raise testing.

         On February 7, 2013, the claims administrator rejected Mr. Wilson’s application for
workers’ compensation benefits because there was no medical evidence that a work-related
injury occurred. On February 12, 2013, the claims administrator issued a second decision
rejecting Mr. Wilson’s application stating that the injury did not arise in the course of and
resulting from his employment. Following these decisions, Mr. Wilson testified by deposition
stating that after shoveling concrete for Mr. Midkiff on the date of the alleged injury, he felt like
he had pulled a muscle in his back. He testified that he complained of back pain to Mr. Midkiff
on their ride from the job site. He also stated that he was unable to unload the concrete forms
from the work truck at the end of the day because his back hurt. Mr. Wilson alleged that he was
in pain when he went to sleep and by the following morning, was unable to move because of the
pain. He admitted that he suffered a back injury six years earlier, but he stated that he had fully
recovered from that condition. Robert Marsh, M.D., then treated Mr. Wilson for his low back
pain. He found that he had a radicular component to his symptoms and suspected, based on Mr.
Wilson’s account of his injury, that he had suffered a herniated L4-5 disc. Mr. Midkiff also
testified by deposition. He admitted that Mr. Wilson worked for him on November 8, 2012,
pouring concrete for steps. He did not remember Mr. Wilson complaining of back pain while
returning from the job site. Mr. Midkiff testified that Mr. Wilson did not return to work after
November 8, 2012.

        Prasadarao B. Mukkamala, M.D., then performed an independent medical evaluation of
Mr. Wilson. He found that there was no objective medical evidence that Mr. Wilson sustained an
injury on November 8, 2012. He found that there was no evidence of an isolated or fortuitous
event which caused Mr. Wilson’s back pain. Dr. Mukkamala noted that his review of Mr.
Wilson’s medical history revealed an MRI taken in the beginning of 2007 which showed
degeneration and bulging of the L4-5 and L5-S1 discs. On October 15, 2014, the Office of
Judges affirmed the claims administrator’s February 7, 2013, and February 12, 2013, decisions.
The Board of Review affirmed the Order of the Office of Judges on March 31, 2015, leading Mr.
Wilson to appeal.

       The Office of Judges concluded that Mr. Wilson did not demonstrate that a compensable
injury to his lower back occurred on November 8, 2012. The Office of Judges based this
conclusion on the medical evidence in the record. The Office of Judges determined that Mr.
Wilson was engaged in heavy manual labor on November 8, 2012, and found that he was treated
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in the emergency room the next day for complaints of back pain. However, the Office of Judges
determined that there was no indication that Mr. Wilson’s back pain was related to a work injury.
It noted that at the point of his initial treatment on November 9, 2012, Mr. Wilson did not
attribute his pain to a work-related injury. The Office of Judges noted that the emergency room
records instead indicated that Mr. Wilson’s symptoms were chronic in nature. The Office of
Judges also noted that the physician who filled out Mr. Wilson’s application for workers’
compensation benefits did not indicate that his condition was the result of an occupational injury.
The Office of Judges found that Dr. Marsh based his opinion on Mr. Wilson’s account of the
injury, but it determined that the factual evidence in the record did not support holding the claim
compensable. The Board of Review adopted the findings of the Office of Judges and affirmed its
Order.

        We agree with the conclusions of the Board of the Review and the findings of the Office
of Judges. Mr. Wilson has not demonstrated that he suffered an injury in the course of and
resulting from his employment. Mr. Wilson alleges that he suffered an injury to his lower back
on November 8, 2012, that required him to seek treatment at Cabell Huntington Hospital
Emergency Room. However, the compensability of this claim is not supported by the remainder
of the evidence in the record. Mr. Wilson has a history of low back pain including significant
degenerative changes in his L4-5 and L5-S1 disc dating back to 2007. The treatment notes from
his emergency room visit on November 9, 2012, indicate that Mr. Wilson’s pain was related to
his chronic conditions. Mr. Wilson’s account of the injury is also undermined by the deposition
testimony of Mr. Midkiff. The Office of Judges was justified in rejecting Mr. Wilson’s
application for workers’ compensation benefits and provided sufficient support for its
conclusions.

        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 26, 2016

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

DISSENTING:
Chief Justice Menis E. Ketchum



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