        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                January 2018 Term

                                 _______________                     FILED
                                                                   May 30, 2018
                                    No. 17-0152                      released at 3:00 p.m.
                                                                 EDYTHE NASH GAISER, CLERK

                                 _______________                 SUPREME COURT OF APPEALS

                                                                      OF WEST VIRGINIA




                               ARCH COAL, INC.,
                           Employer Below, Petitioner
                                       v.
                                JIMMIE LEMON,
                           Claimant Below, Respondent

                                  ______________

                         Appeal from the West Virginia

                     Workers’ Compensation Board of Review

                               BOR No. 2051542,

                              JCN No. 2016026271

                              Claim No. 555-205723

                                _______________

                  MEMORANDUM DECISION WITHDRAWN,
                     BOARD OF REVIEW AFFIRMED
                           _______________

                     Submitted Upon Rehearing: May 15, 2018
                               Filed: May 30, 2018

Jeffrey M. Carder, Esq.                        Reginald D. Henry, Esq.
Jeffrey B. Brannon, Esq.                       Rodney A. Skeens, Esq.
Cipriani & Werner, P.C.                        Beckley, West Virginia
Charleston, West Virginia                      Counsel for Respondent
Counsel for Petitioner Arch Coal, Inc.         Jimmie Lemon

JUSTICE KETCHUM delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT




       1. “Pursuant to W.Va. Code § 23-4-1g(a) (2003) (Repl. Vol. 2010), a claimant in a

workers’ compensation case must prove his or her claim for benefits by a preponderance of

the evidence.” Syl. pt. 2, Gill v. City of Charleston, 236 W.Va. 737, 783 S.E.2d 857 (2016).



       2. “A noncompensable preexisting injury may not be added as a compensable

component of a claim for workers’ compensation medical benefits merely because it may

have been aggravated by a compensable injury. To the extent that the aggravation of a

noncompensable preexisting injury results in a discreet new injury, that new injury may be

found compensable.” Syl. pt. 3, Gill v. City of Charleston, 236 W.Va. 737, 783 S.E.2d 857

(2016).
Justice Ketchum:


       This workers’ compensation claim concerns a low back injury the claimant, Jimmie

Lemon, maintains occurred in the course of and resulting from his employment with Arch

Coal, Inc. The Office of Judges found the claim compensable and designated Lemon’s

compensable condition as a herniated disc at L4-5. The decision of the Office of Judges was

affirmed by the Workers’ Compensation Board of Review. On appeal, however, this Court

concluded that Lemon’s injury was not work-related. Consequently, in a Memorandum

Decision filed in December 2017 this Court reversed the Board of Review and remanded the

case with directions that the claim be rejected.1



       On March 16, 2018, this Court granted Lemon’s petition for rehearing, and on May

15, 2018, argument on the petition was heard.2 Upon reconsideration, this Court upholds the

prior administrative finding that, based on the preponderance of the evidence, Lemon’s injury

was work-related. Therefore, the December 2017 Memorandum Decision is withdrawn, the

decision of the Board of Review is affirmed, and this case is remanded with directions to

reinstate the decisions of the Office of Judges and the Board of Review that Lemon’s claim

is compensable, with his designated compensable condition as a herniated disc at L4-5.



       1
      See, Arch Coal, Inc. v. Jimmie Lemon, No. 17-0152, 2017 WL 6503443, (W.Va.
December 19, 2017) (Memorandum Decision) (Workman, J. and Walker, J. dissenting).
       2
           Justice Davis and Justice Loughry would refuse the petition for rehearing.

                                               1

                                  I. Factual Background

       Lemon was a general laborer who worked underground at a mine site operated by

Arch Coal. Workers’ compensation records show prior claims regarding his back. One of

those claims resulted in an MRI of Lemon’s lumbar spine conducted on March 1, 2009,

which revealed “mild concentric bulging” of Lemon’s L4-5 and L5-S1 intervertebral discs,

with “[n]o lumbar intervertebral disk herniation or spinal stenosis identified.” Referring to

the MRI, Dr. Patel, an orthopaedic spine surgeon, indicated that surgery was not warranted

at that time.



       According to Lemon, the injury regarding the present claim occurred later on April

6, 2016. Lemon states that he was driving a shuttle car on a rough section of underground

terrain when the car hit a large hole, causing a jarring or impact injury to his low back.

Lemon told his foreman that he had hurt himself and needed to go home early and that he

would see a doctor the next morning.



       On April 7, 2016, Lemon saw Dr. Kominsky, a chiropractic physician, who

determined that Lemon had a lumbar disc protrusion with nerve root compression. Dr.

Kominsky recommended that Lemon undergo an MRI scan. Later that day, Lemon reported

to General Mine Foreman Ronald Price and stated that the doctor told him to take it easy at

work. According to Price, Lemon was moving slow with a noticeable limp and stated that


                                             2

his back was killing him. However, Lemon said he did not know how he hurt his back. Price

did not let Lemon work underground that day and told Lemon to report back after his next

doctor appointment.



       An MRI of Lemon’s lumbar spine was conducted on April 13, 2016, which revealed

the following: “Right lateral disc herniation and disc bulge at L4-5 causing right foraminal

[passage] encroachment and nerve root sheath impingement. Degenerative disc and joint

disease at L5-S1 without significant canal or foraminal encroachment.” Later, on April 13,

2016, Lemon reported to the mine site and, referring to the MRI, stated that he wanted to fill

out an accident report.



       According to the April 13, 2016, statements of Foreman Price and Mine Manager

Kenneth Evans, Lemon indicated that his back problem was due to wear and tear over the

years. Thus, Lemon could not determine when the present injury occurred. Price noted,

however, that Lemon recalled that when “running a shuttle car his back was hurting so bad

he couldn’t hardly breathe and had a shift foreman bring him out early.” An April 13, 2016,

statement of Assistant General Mine Foreman Donnie Crum related that Lemon said that his

back problem was due to a previous injury when he was young and that on April 1, 2016,

(prior to the alleged injury of April 6, 2016,) Lemon stated that he did not hurt his back while

on the job.


                                               3

                             II. Administrative Background

       On April 20, 2016, Lemon completed the Employees’ and Physicians’ Report of

Occupational Injury or Disease. Lemon stated in the Report that the injury occurred on April

6, 2016, and was caused when the vehicle he was operating hit a hole in the rough terrain on

his employer’s premises. Dr. Kominsky completed the physician’s portion of the Report and,

designating Lemon’s injury as occupational, stated: “MRI indicates a new injury at L4-5

with nerve root compression / DJD at L5-S1.”3



       The Claim Administrator denied the claim on April 29, 2016, on the basis that

Lemon’s injury was not work-related. Thereafter, additional medical reports were obtained

regarding the nature of Lemon’s low back injury.



       Dr. Kominsky referred Lemon to Dr. Orphanos, M.D., of Neurological Associates,

Inc., who performed a discectomy on Lemon’s low back on June 24, 2016, following a pre­

operative diagnosis of “right L4-5 far lateral disc herniation.” Later, Dr. Soulsby, M.D., of

Orthoclinic, PC, completed a Record Review and Opinion of Lemon’s condition. Dr.

Soulsby indicated that Lemon’s injury was not traumatic in origin. Rather, Lemon’s low

back condition was the consequence of progressive, pre-existing degenerative disc disease.


       3
        Based on the April 13, 2016, MRI of Lemon’s lumbar spine, Dr. Kominsky’s
reference in the Employees’ and Physicians’ Report to “DJD at L5-S-1" would indicate
degenerative joint disease at L5-S1.

                                             4

Finally, an Age of Injury Analysis and MRI Comparison were conducted by Dr. Luchs, M.D.,

of Diagnostic Dating Specialists, LLC. Dr. Luchs compared the March 1, 2009, MRI with

the post-injury April 13, 2016, MRI and concluded that Lemon’s condition was due to a

progression of degenerative disc disease with chronic disc herniation at L4-5.4



       Following an evidentiary hearing, the Administrative Law Judge of the Office of

Judges entered a decision on August 18, 2016, which reversed the decision of the Claim

Administrator and found the claim compensable. The Administrative Law Judge found

Lemon’s compensable condition to be a herniated disc at L4-5, which had required surgery.



       The Administrative Law Judge noted that some evaluating physicians concluded that

Lemon’s condition was due to degenerative changes rather than a work-related injury.


       4
       Dr. Luchs expressed the opinion that the absence of certain factors suggested that
Lemon’s disc herniation predated the alleged April 6, 2016, injury. Dr. Luchs stated in
the MRI Comparison report:

              Superimposed disc herniation at L4/5 is evident on the MRI dated
       4/13/2016, which was not evident on the prior MRI dated 3/1/2009. The
       disc herniation however does not demonstrate high signal in or around the
       disc herniation, and there is no associated annular tear evident to suspect an
       acute disc herniation. Therefore although this disc herniation was not
       present on the prior exam, the disc herniation does however predate the
       patient’s injury.

       Lemon, however, testified before the Administrative Law Judge of the Office of
Judges that, prior to the April 6, 2016, incident, he was never diagnosed “with having a
ruptured disc or disc herniation.”

                                             5

However, the Administrative Law Judge emphasized that, after the alleged injury, the April

13, 2016, MRI established that, in addition to the degenerative changes, Lemon exhibited a

right lateral disc herniation and disc bulge at L4-5 “causing right foraminal [passage]

encroachment and nerve root sheath impingement.” According to the Administrative Law

Judge, the disc herniation “could certainly explain the claimant’s assertions of severe low

back pain running down the right leg.”



       On January 20 2017, the Workers’ Compensation Board of Review adopted the

findings and conclusions of the Administrative Law Judge and affirmed the Office of Judges’

August 18, 2016, decision. Arch Coal’s motion for reconsideration was denied.



       Arch Coal filed an appeal in this Court from the January 20, 2017, decision of the

Board of Review.



                          III. The Memorandum Decision and

                            Lemon’s Petition for Rehearing


       On December 19, 2017, this Court issued a Memorandum Decision in which we

determined that the evidence showed that Lemon did not sustain a work-related injury on

April 6, 2016. Consequently, this Court reversed the Board of Review and directed that the

Claim Administrator’s April 29, 2016, rejection of the claim be reinstated.




                                            6

       Noting Lemon’s long history of back problems, this Court stated as follows:


               [Lemon] previously had a disc bulge at L4-5, as seen on the March
       2009 MRI. The April 2016 MRI showed that disc had herniated. Though
       Dr. Orphanos noted that Mr. Lemon was injured at work, Dr. Soulsby
       opined in his record review that he found no evidence of any significant
       injury on the date in question and stated that Mr. Lemon’s symptoms are the
       result of his preexisting back conditions. Dr. Luchs, who performed both a
       comparison and an aging analysis report, determined that the herniated disc
       is the result of the typical progression of degenerative disc disease and
       interval development of what appears to be a chronic disc herniation at L4­
       5.


       Lemon filed a petition for rehearing from the Memorandum Decision, asserting that

this Court failed to afford proper deference to the findings of the Administrative Law Judge

and Board of Review. In March 2018, this Court granted a rehearing in the case.5



                                 IV. Standard of Review

       This Court’s standard of review in workers’ compensation cases is provided by

statute. W.Va. Code, 23-5-15(b) [2005], states that deference shall be given to the Board of

Review’s “findings, reasoning and conclusions.” In the current matter, by affirming the

Office of Judges, the Board of Review effectively reversed the denial of the claim by the

Claim Administrator. Thus, subsection (d) of the statute is applicable which provides a

detailed basis for reviewing the Board of Review’s decision:


       5
        See, this Court’s order of March 16, 2018, granting Lemon’s petition for
rehearing, Justice Davis and Justice Loughry would refuse.

                                             7

              (d) If the decision of the Board effectively represents a reversal of a
      prior ruling of either the commission or the Office of Judges that was
      entered on the same issue in the same claim, the decision of the board may
      be reversed or modified by the Supreme Court of Appeals only if the
      decision is in clear violation of constitutional or statutory provisions, is
      clearly the result of erroneous conclusions of law, or is so clearly wrong
      based upon the evidentiary record that even when all inferences are
      resolved in favor of the board’s findings, reasoning and conclusions, there
      is insufficient support to sustain the decision. The court may not conduct a
      de novo re-weighing of the evidentiary record.


      Subsection (d) of W.Va. Code, 23-5-15 [2005], provides further:


             If the court reverses or modifies a decision of the board pursuant to
      this subsection, it shall state with specificity the basis for the reversal or
      modification and the manner in which the decision of the board clearly
      violated constitutional or statutory provisions, resulted from erroneous
      conclusions of law, or was so clearly wrong based upon the evidentiary
      record that even when all inferences are resolved in favor of the board’s
      findings, reasoning and conclusions, there is insufficient support to sustain
      the decision.


Cf., Wilkinson v. West Virginia Office Ins. Comm’n, 222 W.Va. 394, 398, 664 S.E.2d 735,

739 (2008) (applying a different subsection of W.Va. Code, 23-5-15 [2005], where the Board

affirmed both the Commission and the Office of Judges).



      With those principles in mind, we reconsider the Board of Review’s decision, this

Court’s December 19, 2017, Memorandum Decision, and Lemon’s petition for rehearing.




                                             8

                                      V. Discussion

       Pursuant to W.Va. Code, 23-4-1(a) [2008], workers’ compensation benefits shall be

paid to employees “who have received personal injuries in the course of and resulting from

their covered employment.”6 Moreover, W.Va. Code, 23-4-1g(a) [2003], provides that any

issue regarding benefits involving the weighing of evidence shall be resolved by a

preponderance of the evidence. Thus, this Court held in syllabus point 2 of Gill v. City of

Charleston, 236 W.Va. 737, 783 S.E.2d 857 (2016): “Pursuant to W.Va. Code § 23-4-1g(a)

(2003) (Repl. Vol. 2010), a claimant in a workers’ compensation case must prove his or her

claim for benefits by a preponderance of the evidence.” In the case before us, the

Administrative Law Judge’s finding of compensability was based on the preponderance of

the evidence standard.



       The Memorandum Decision incorrectly stated the issue before this Court in terms of

whether Lemon’s low back injury “was properly found to be non-compensable.” The issue,

properly stated, is whether the decision of the Board of Review, favorable to Lemon and

based on the evidentiary findings of the Administrative Law Judge, should be affirmed,

reversed or modified pursuant to the standard of review set forth in W.Va. Code, 23-5-15


      6
        See, syl. pt. 1, Barnett v. State Workmen’s Compensation Comm’r, 153 W.Va.
796, 172 S.E.2d 698 (1970) (“In order for a claim to be held compensable under the
Workmen’s Compensation Act, three elements must coexist: (1) a personal injury (2)
received in the course of employment and (3) resulting from that employment.”
(Emphasis in the original.)).

                                            9

[2005]. Subsection (b) of that statute requires this Court to give deference to the Board’s

“findings, reasoning and conclusions.” Moreover, where this Court reverses the Board, as

in the case of the Memorandum Decision herein, subsection (d) of the statute requires this

Court to state “with specificity” the reason for the reversal and why the Board “was so clearly

wrong based upon the evidentiary record that even when all inferences are resolved in favor

of the board’s findings, reasoning and conclusions, there is insufficient support to sustain the

decision.” The Memorandum Decision does not include that analysis. Instead, the

Memorandum Decision reveals an inappropriate re-weighing of the evidentiary record.



       This Court’s holding in the Memorandum Decision to reinstate the ruling of the Claim

Administrator rested largely on the degenerative disc disease discussions of Dr. Soulsby in

the Record Review and Dr. Luchs in the Age of Injury Analysis and MRI Comparison. It is

undisputed that Lemon had a history of degenerative disc disease and prior workers’

compensation claims involving back problems. The Memorandum Decision, however, does

not address Dr. Kominsky’s statement that, with respect to the April 6, 2016, incident, the

MRI “indicates a new injury at L4-5 with nerve root compression.” The medical evidence

is virtually unanimous in establishing that Lemon did not have a herniated disc prior to April

6, 2016. Moreover, Lemon notes in the petition for rehearing that in the Memorandum

Decision this Court




                                              10

       does not observe that Dr. Orphanos is a neurosurgeon and that he had
       “direct” vision of the damaged disc in the Claimant’s low back as he
       performed surgery thereon. At no time did Dr. Orphanos suggest that the
       herniation was not traumatic in nature.


       The Administrative Law Judge and the Board of Review, therefore, concluded with

factual justification that Lemon suffered a new, work-related injury at L4-5 in addition to his

preexisting degenerative joint disease and prior workers’ compensation claims (none of

which involved a herniated disc).7



       In syllabus point 3 of Gill v. City of Charleston, 236 W.Va. 737, 783 S.E.2d 857

(2016), this Court held:


              A noncompensable preexisting injury may not be added as a
       compensable component of a claim for workers’ compensation medical
       benefits merely because it may have been aggravated by a compensable
       injury. To the extent that the aggravation of a noncompensable preexisting
       injury results in a discreet new injury, that new injury may be found
       compensable.


(Emphasis added). Accord, Crouse v. JKM Enterprises, Inc., LWF, No. 17-0450, 2017 WL

6049278, (W.Va. November 22, 2017) (Memorandum Decision); SWVA, Inc., v. Birch, 237

W.Va. 393, 398 n. 5, 787 S.E.2d 664, 669 n. 5 (2016).



       7
         See generally, Vol. 3, Larson’s Workers’ Compensation Law, Digest § 43.02D[2]
n. 10 [2014] (collecting cases discussing the compensability of a ruptured or herniated
disc alleged to be work-related ).

                                              11

       In addition to the medical evidence, the Administrative Law Judge and Board of

Review considered other matters indicative of compensability. Although Lemon initially

expressed uncertainty concerning when and how the injury occurred, he went to the doctor

the following morning after April 6, 2017, and then reported to work with a noticeable limp,

stating that his back was killing him. Several days later, he recalled that when “running a

shuttle car his back was hurting so bad he couldn’t hardly breathe and had a shift foreman

bring him out early.” The Administrative Law Judge stated:


              The claimant’s sworn testimony noted that his shift was to be over at
       12:20 [a.m.], but that at 8:30 p.m. he was running a solid rubber tire ride
       when he hit a bump that threw him out of his seat and he came back down
       and had pain in his back and leg. He notes that he called his boss, Donnie
       Crum around 10:30 [p.m.] and told him he was leaving. He noted he had
       hurt himself a little bit. * * * One factual situation that is found to be
       positive for the claimant is that there was no contradictory evidence
       concerning the fact that the claimant had to leave work approximately two
       hours early on the day he alleged he was injured.


       This Court is of the opinion that the decision of the Board of Review which affirmed

the Office of Judges is supported by the evidence of record and should be upheld. As the

Administrative Law Judge determined, the preponderance of the evidence shows that Lemon

left his shift early on April 6, 2016, upon sustaining a compensable, discreet new injury, i.e.,

a herniated disc at L4-5.8


       8
        See, syl. pt. 1, Jordan v. State Workmen’s Compensation Comm’r, 156 W.Va.
159, 191 S.E.2d 497 (1972):


                                              12

                                      VI. Conclusion

       The Memorandum Decision filed December 19, 2017, is withdrawn. The January 20,

2017, decision of the Board of Review is affirmed, and this case is remanded with directions

to reinstate the January 20, 2017, decision of the Board of Review which affirmed the August

18, 2016, decision of the Office of Judges holding that Lemon’s claim is compensable, with

his designated compensable condition as a herniated disc at L4-5.



                                                    Memorandum Decision Withdrawn,
                                                    Board of Review Affirmed.




               The question in a workmen’s compensation case as to whether the
       employment aggravated or, combined with the internal weakness or
       infirmities of claimant to produce the injury, is a question of fact, not law,
       and a finding of the Workmen’s Compensation Appeal Board on this
       question will not be disturbed on appeal by this Court, unless such finding
       is plainly wrong.

                                             13
