                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               May 24, 2016
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
QUAD/GRAPHICS, INC.,                                                          OF WEST VIRGINIA

Employer Below, Petitioner

vs.)   No. 15-0624	 (BOR Appeal No. 2050036)
                   (Claim No. 2015001462)

IVAN A. MORAD,

Claimant Below, Respondent



                             MEMORANDUM DECISION
      Petitioner Quad/Graphics, Inc., by Jeffrey Brannon, its attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Ivan A. Morad, by Christopher
Wallace, his attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated May 28, 2015, in which
the Board reversed a November 24, 2014, Order of the Workers’ Compensation Office of
Judges. The Board held Mr. Morad’s claim for workers’ compensation benefits compensable for
a lumbar sprain/strain. Additionally, the Board remanded the claim to the claims administrator
for further development of the evidentiary record concerning the issue of whether a herniated
lumbar disc should also be added as a compensable component of Mr. Morad’s claim. In its
Order, the Office of Judges affirmed the claims administrator’s July 29, 2014, decision rejecting
Mr. Morad’s claim. 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. Morad alleges that he injured his lower back on July 6, 2014, while attempting to
move a manually operated crane with his hands. Following the alleged injury, Mr. Morad was
transported via ambulance to the emergency department of University Healthcare’s Berkley
Medical Center where he was evaluated by Ronald Best, D.O. Dr. Best noted that Mr. Morad
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was complaining of right-sided back pain that began while he was operating a crane in the course
of his employment approximately one hour prior to his arrival in the emergency department. A
CT scan of Mr. Morad’s lumbar spine was performed and revealed high-grade canal stenosis
secondary to a large disc protrusion at L4-5. Dr. Best diagnosed Mr. Morad with spinal stenosis
and degenerative disc disease. Additionally, an Employee’s and Physician’s Report of Injury was
completed on July 6, 2014. The physician’s portion of the form indicates that Mr. Morad
sustained a lumbar strain and a disc herniation as a result of an occupational injury.

        On July 9, 2014, Mr. Morad sought treatment with Roberta Whetzel, FNP-BC, in
Quad/Graphics’s onsite healthcare facility. Ms. Whetzel indicated that Mr. Morad sustained a
work-related injury on July 6, 2014, while he was simultaneously engaged in pulling and
twisting motions. She diagnosed Mr. Morad with a herniated lumbar disc and a lumbar strain,
and opined that the mechanism of injury is consistent with a herniated nucleus pulposus.
Additionally, Ms. Whetzel opined that she is reasonably certain that Mr. Morad’s injury occurred
in the course of and resulting from his employment. However, on July 29, 2014, the claims
administrator rejected Mr. Morad’s application for workers’ compensation benefits.

        On October 22, 2014, April Gum, Quad/Graphics’s safety leader, authored an affidavit.
Ms. Gum stated that she is aware that Mr. Morad reported sustaining a work-related injury on
July 6, 2014, and further stated that Mr. Morad alleges that he was injured when a crane he was
operating malfunctioned. She then stated that the crane in question was inspected by two
maintenance workers immediately following the alleged injury, and the crane was found to be
fully functional.

        On October 23, 2014, Jonathan Luchs, M.D., performed an “age of injury” analysis
utilizing the results of the lumbar CT scan performed on July 6, 2014. Dr. Luchs opined that the
CT scan revealed multilevel degenerative disc disease with facet arthropathy and thickening of
the ligamentum flavum which is most prominent at L3-5, resulting in central canal stenosis. He
further opined that all of the findings revealed via the lumbar CT scan are chronic in nature.

       Finally, Dick Decker, P.E., authored an undated report detailing the findings of a safety
evaluation he performed on October 22, 2014. Mr. Decker stated that he tested the manually
operated crane used by Mr. Morad on July 6, 2014, and opined that it is highly unlikely that an
able-bodied worker could injure his back performing the tasks he evaluated in a work area free of
obstructions.

        In its Order affirming the July 29, 2014, claims administrator’s decision, the Office of
Judges held that Mr. Morad did not sustain a compensable injury. In its Order dated May 28,
2015, the Board of Review reversed the Office of Judges’ Order, held Mr. Morad’s claim for
workers’ compensation benefits compensable for a lumbar sprain/strain, and remanded the claim
to the claims administrator with instructions to further develop the evidentiary record in order to
determine whether or not a herniated lumbar disc should be added as a compensable component
of the claim. On appeal, Quad/Graphics, Inc., asserts that the evidence of record fails to establish
that Mr. Morad sustained an injury in the course of and resulting from his employment.

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         The Office of Judges found that Dr. Luchs’s “age of injury” analysis, in which he opined
that Mr. Morad’s condition is chronic in nature, is the most persuasive evidence of record.
Additionally, the Office of Judges looked to Mr. Decker’s safety evaluation in which he opined
that it is highly unlikely that Mr. Morad injured himself while using the manually operated crane.
Finally, the Office of Judges found that Mr. Morad’s allegation that he injured himself as a result
of an equipment malfunction is unpersuasive.

        The Board of Review concluded that the Office of Judges’ analysis and conclusions are
clearly wrong in view of the entirety of the evidentiary record, and further determined that the
substantial rights of Mr. Morad have been prejudiced. In its Order, the Board of Review relied
upon Dr. Best’s treatment notes in which he indicated that Mr. Morad sustained an occupational
injury. Additionally, the Board of Review relied upon the treatment notes from Quad/Graphics’s
onsite healthcare facility in which Ms. Whetzel opined that she is reasonably certain that Mr.
Morad’s current condition was caused by a work-related injury. Finally, the Board of Review
found that the record does not contain any evidence indicating that there were any witnesses to
the incident who dispute Mr. Morad’s contention that he injured his back while operating a
crane. The Board of Review then concluded that the evidence of record demonstrates that Mr.
Morad sustained a lumbar strain in the course of and resulting from his employment on July 6,
2014. However, the Board of Review noted that Mr. Morad requested that his claim be held
compensable for both a lumbar strain and a herniated lumbar disc. The Board of Review then
concluded that additional evidence is need to determine whether a herniated lumbar disc should
be added as a compensable diagnosis and remanded the claim to the claims administrator for
further development of the record concerning the compensability of the diagnosis of a herniated
lumbar disc. We agree with the reasoning and conclusions of the Board of Review.

        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: May 24, 2016

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

DISSENTING:
Justice Brent D. Benjamin



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