                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

WEST VIRGINIA UNITED HEALTH SYSTEMS, INC.,                                             FILED
Employer Below, Petitioner                                                         February 13, 2020
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
vs.)   No. 19-0177 (BOR Appeal No. 2053360)                                         OF WEST VIRGINIA
                   (Claim No. 2017027225)

ASHLEY DOYLER,
Claimant Below, Respondent


                              MEMORANDUM DECISION
       Petitioner West Virginia United Health Systems, Inc., by Counsel James W. Heslep,
appeals the decision of the West Virginia Workers’ Compensation Board of Review (“Board of
Review”). Ashley Doyler, by Counsel Reginald D. Henry, filed a timely response.

       The issue on appeal is compensability. The claims administrator rejected the claim on May
25, 2017. The Office of Judges reversed the decision in its September 6, 2018, Order and held the
claim compensable for right hip contusion and right hip sprain. 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.

        Ms. Doyler, a respiratory therapist, was injured on May 5, 2017. The employer’s First
Report of Injury was completed that day and indicates Ms. Doyler injured her right hip, ankle, and
elbow when she slipped on food in the cafeteria and fell. The Employee’s and Physician’s Report
of Injury was completed on May 8, 2017, and indicates Ms. Doyler injured her right hip and back
when she slipped and fell. The physician’s section was completed by Lee Goozdich, D.C. Ms.
Doyler treated with Dr. Goozdich several times in May of 2017 for lower back and right hip pain.
Dr. Goozdich performed chiropractic manipulation, but Ms. Doyler saw little improvement.


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        In a May 15, 2017, treatment note, Robert Gerbo, M.D., noted that Ms. Doyler had a bruise
on her right hip. She had tenderness in the hip and limited range of motion. Dr. Gerbo stated that
he expected her to be further along in her recovery. Since her symptoms were not improving, he
recommended an MRI. He noted that an x-ray showed mild degenerative arthrosis in both hips,
which was suggestive of acetabular retroversion. He diagnosed right hip contusion and right hip
strain. On May 24, 2017, Ms. Doyler had made little progress. She still had pain in her right hip
and had developed pain in her groin as well. She also reported occasional tingling in her right
thigh. Dr. Gerbo prescribed a TENS unit.

        Ms. Doyler stated in a May 25, 2017, recorded statement that at the time of her injury she
was getting lunch in the cafeteria. She stated that she was not paid during her lunch breaks, and
she did not clock in or out for lunch. The claims administrator rejected the claim on May 25, 2017.

        In a June 2, 2017, treatment note, Dr. Gerbo noted that Ms. Doyler reported her pain had
improved. However, she still had some tenderness in the right hip and mildly decreased range of
motion. Dr. Gerbo again recommended a right hip MRI. Ms. Doyler returned to Dr. Goozdich on
June 6, 2017, and reported that she was making steady improvement. She was scheduled to return
to work the following day.

        Ms. Doyler stated in a June 9, 2017, letter, that she is given thirty minutes for lunch per
day. She is not paid for her lunch time; however, she is required to carry a phone and pager during
that time and can be called away from lunch at any moment. At the time she was injured, Ms.
Doyler stated that she was carrying a phone and pager. She noted that she is not allowed to leave
the premises for lunch.

        In a June 9, 2017, treatment note, Dr. Gerbo noted that Ms. Doyler reported that her right
hip had begun to feel like it was going to lock or pop during her work day. She had mildly
decreased range of motion in the right hip. Dr. Gerbo again diagnosed right hip contusion and
sprain. On July 3, 2017, Ms. Doyler reported increased hip pain while she was on vacation. An
MRI was performed on June 23, 2017, and Dr. Gerbo interpreted the findings as showing mild
degenerative arthrosis, a tear of the post-superior acetabular labrum, and possible acetabular
retroversion. Dr. Gerbo diagnosed right hip sprain, contusion, and femoroacetabular impingement.
He recommended physical therapy.

        On July 12, 2017, Ms. Doyler began treating with Matthew Dietz, M.D. She reported that
her right hip was locking, catching, clicking, and popping. She also had right hip weakness, and a
feeling as if it would give way. Dr. Dietz reviewed the MRI and stated that it showed a CAM lesion
on the anterior neck of the right femur. He found that the labrum showed a little fraying. Dr. Dietz
diagnosed right hip pain likely due to femoral acetabular impingement. On October 2, 2017, Dr.
Dietz noted that Ms. Doyler was unable to get physical therapy for financial reasons. An x-ray
showed significant CAM lesions on the femoral neck on both sides. Dr. Dietz referred her for a
possible right hip arthroscopy.

       Derik Geist, M.D., performed a right hip evaluation on November 10, 2017. Ms. Doyler
reported that her pain had improved but she still had discomfort. Dr. Geist read the right hip MRI
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as showing a small CAM lesion with no labral tear or chondromalacia. He opined that the right
hip pain was not originating from the right hip joint. Instead, Ms. Doyler had musculature and
neuropathic sources of her pain. Dr. Geist recommended physical therapy and medication for
neuropathic pain. His diagnoses were unspecified psoas tendonitis and right hip/thigh contusions.
On December 8, 2017, Dr. Geist noted that two weeks after a steroid injection in the right hip, Ms.
Doyler had significant improvement. Dr. Geist again opined that her pain was not emanating from
the right hip joint. Instead, he believed she had pelvic muscle imbalance and psoas issues. He
recommended focused physical therapy. On January 19, 2018, Ms. Doyler reported that she was
having difficulty using stairs and was experiencing a snapping sensation in her right leg. She was
in physical therapy. Dr. Geist believed the pain was due to psoas tendonitis.

        Ms. Doyler testified in a deposition on May 21, 2018, that at the time she was injured, she
was on her unpaid lunch break. However, she was required to carry her pager and phone during
that time and could have been called away at any moment. Further, Ms. Doyle stated that she was
not permitted to leave the campus during her lunch period and even running out to her car required
obtaining permission from a supervisor. Ms. Doyler testified that when she fell, she hit the ground
very hard. She was absent from work for four weeks and then return to full time duty on June 7,
2017. Ms. Doyler stated that she still experiences intermittent right hip, groin, buttocks, and low
back symptoms.

         The Office of Judges reversed the claims administrator’s rejection of the claim and held
the claim compensable for right hip contusion and right hip sprain in its September 6, 2018, Order.
It found that Ms. Doyler was within her zone of employment and under the control of the employer
at the time of her injury. Though she was on an unpaid lunch break at the time of the injury, she
was on the employer’s premises, was not allowed to leave the property, and could be called back
to work at any time. The Office of Judges found that the medical evidence indicates Ms. Doyler
fell on her right hip and sustained a right hip contusion and sprain. The Office of Judges found that
treatment notes by Dr. Dietz and Dr. Geist indicate she has femoral acetabular impingement or
psoas tendonitis. The Office of Judges determined that it is unclear whether Ms. Doyler actually
has the conditions, and furthermore, the medical records do not state whether the conditions are
the result of the compensable injury. Therefore, the Office of Judges concluded that the claim
should be held compensable for right hip contusion and right hip sprain. 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. Pursuant to West Virginia Code § 23-4-1, employees who
receive injuries in the course of and as a result of their covered employment are entitled to benefits.
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). Though Ms. Doyler was
on an unpaid lunch break when she was injured, she was on the employer’s premises, was not
permitted to leave, and was required to return to work at any given time if needed. As she was
clearly still within her zone of employment, the claim was properly held compensable.

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         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 so clearly wrong based upon the evidentiary record that even when all
inferences are resolved in favor of the Board of Review’s findings, reasoning and conclusions,
there is insufficient support to sustain the decision. 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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