                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
BRENDA L. COURTNEY,                                                            December 20, 2013
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 12-0423 (BOR Appeal No. 2046491)
                   (Claim No. 2011001312)

FAMILY DOLLAR STORES OF WV, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION

       Petitioner Brenda L. Courtney, by Lawrence E. Sherman Jr., her attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. Family Dollar Stores of
WV, Inc., by H. Toney Stroud, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated March 8, 2012, in
which the Board affirmed a September 16, 2011, Order of the Workers’ Compensation Office of
Judges in holding lumbago back pain compensable; however, the Board of Review reversed the
ruling of the Office of Judges finding lumbosacral intervertebral disc and displacement of lumbar
intervertebral disc without myelopathy compensable. In its Order, the Office of Judges reversed
the claims administrator’s May 25, 2010, Order rejecting Ms. Courtney’s requested
compensability for lumbago back pain, lumbosacral intervertebral disc, and displacement of
lumbar intervertebral disc without myelopathy. 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 upon a material
misstatement or mischaracterization 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. Courtney was a manger for Family Dollar Stores of WV, Inc. when she sustained an
injury to her lower right back while pushing a gondola on April 27, 2010. Dr. Duffy diagnosed

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Ms. Courtney with lumbago back pain radiating into her right leg on May 17, 2010. The claims
administrator rejected Ms. Courtney’s claim on May 25, 2010.
        The Office of Judges held that based upon the preponderance of the evidence, Ms.
Courtney has shown that on April 27, 2010, she sustained a compensable injury in the course of
and as a result of her employment. The Board of Review affirmed the compensability of
lumbago back pain, but held lumbosacral intervertebral disc and displacement of lumbar
intervertebral disc without myelopathy were not compensable components.

        The Board of Review found no medical evidence to establish that the disc herniation was
related to Ms. Courtney’s compensable injury. Ms. Courtney disagrees and asserts that the
reliable and probative evidence shows that she sustained an injury during the course of and as a
result of her employment, thus is entitled to an award of compensability for lumbago back pain,
lumbosacral intervertebral disc, and displacement of lumbar intervertebral disc without
myelopathy. Family Dollar Stores of WV, Inc. maintains that this claim should be rejected, and
that there is no justification to add disc herniation as a compensable component.

        On May 25, 2010, Dr. Duffy opined that Ms. Courtney had sustained an occupational
injury from overuse of her low back. Dr. Caruso diagnosed Ms. Courtney with degeneration of
the lumbar or lumbosacral intervertebral disc, displacement of lumbar intervertebral disc without
myelopathy, and lumbago back pain. The Office of Judges found Ms. Courtney’s and Dr.
Duffy’s evidence, that she felt pain in her back while moving a gondola at work on April 27,
2010, to be credible and reliable.

        The Board of Review erred in relying on Dr. Duffy’s initial diagnosis of low back pain
on Ms. Courtney’s Workers’ Compensation application to reverse the compensability of
lumbosacral intervertebral disc, and displacement of lumbar intervertebral disc without
myelopathy. Subsequent to Dr. Duffy’s initial diagnosis of low back pain, Ms. Courtney’s MRI
on July 7, 2010, revealed right disc herniation, and Dr. Caruso diagnosed her with lumbago back
pain, lumbosacral intervertebral disc, and displacement of lumbar intervertebral disc without
myelopathy. We agree with the reasoning and conclusions of the Office of Judges and find
lumbago back pain, lumbosacral intervertebral disc, and displacement of lumbar intervertebral
disc without myelopathy as being compensable.

        For the foregoing reasons, we find that the decision of the Board of Review was clearly
the result of an erroneous conclusion of law. Therefore, the decision of the Board of Review is
reversed and the decision of the Office of Judges is reinstated, granting compensability for Ms.
Courtney’s lumbago back pain, lumbosacral intervertebral disc, and displacement of lumbar
intervertebral disc without myelopathy.

                                                                       Reversed and Reinstated.


ISSUED: December 20, 2013

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




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