                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             January 29, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
PAUL S. METZ JR.,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 11-1418	 (BOR Appeal No. 2045697)
                   (Claim No. 2010101951)

DEBARR TRUCKING COMPANY, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Paul S. Metz Jr., by George Zivkovich, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. DeBarr Trucking Company, Inc., by
Matthew L. Williams, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated October 3, 2011, in
which the Board reversed a March 10, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s August 12, 2009,
decision denying compensability for Mr. Metz’s back injury, because it was not received in the
course of his employment. 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. Metz was employed by DeBarr Trucking Company as a truck driver. Mr. Metz
alleges that on August 3, 2009, he received an injury to his lower back when the truck he was
driving hit a pothole, shaking his entire truck. Mr. Mertz did not report the injury to Debarr
Trucking Company but the following day, Mr. Metz went to Dr. Herrmann, complaining of
lower back pain. Dr. Herrmann’s treatment notes indicated that Mr. Metz suffered from chronic
intermittent low back pain and left lumbar radiculopathy. Dr. Herrmann further indicated that
Mr. Metz’s condition was the result of an aggravation of prior back problems. The claims
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administrator denied Mr. Metz’s claim on August 12, 2009, stating that the injury was not
received in the course of and resulting from his employment. The Office of Judges reversed the
claims administrator’s decision on March 10, 2011, concluding that Mr. Metz had a new injury
and found that the claim was compensable for a lumbar strain injury. But the Board of Review
reversed the Office of Judges’ Order on October 3, 2011, leading to this appeal.

       The Office of Judges concluded that a preponderance of the evidence weighed in favor of
finding that Mr. Metz had suffered a new injury, on August 2, 2009, in the course of his
employment at DeBarr Trucking Company, which caused a lumbar strain. The Office of Judges
found that Mr. Metz had a chronic and recurring history of lower back pain. The Office of
Judges found that Mr. Metz suffered from a lumbar strain with radiculopathy in December of
2001. The Office of Judges found that Mr. Metz’s chronic back problems required two surgeries.
The Office of Judges also found that Dr. Byler, requested that Mr. Metz be excused from work
for medical reasons immediately prior to Mr. Metz’s alleged August 3, 2009, injury. But the
Office of Judges was persuaded by Mr. Metz’s testimony.

       The Board of Review concluded that the Office of Judges was clearly wrong in view of
the preponderance of the evidence on record. The Board of Review found that Mr. Metz did not
demonstrate that he received a new injury on August 3, 2009. The Board of Review was
persuaded by the treatment notes of Dr. Herrmann, on August 4, 2009, which makes no reference
to a new injury but explicitly attributes Mr. Metz’s symptoms to an aggravation of a prior injury.
The Board of Review found that the evidence in the record did not establish that Mr. Metz’s
condition was causally related to a personal injury received in the course of and resulting from
his employment at DeBarr Trucking Company.

        We agree with the conclusions of the Board of Review. Mr. Metz has not demonstrated
that he suffered a new injury to his lumbar spine on August 3, 2009. The treatment notes of Dr.
Herrmann do not causally link Mr. Metz’s symptoms to the alleged August 3, 2009, incident and
Mr. Metz’s own testimony is insufficient, in light of his chronic history of lower back pain, to
establish that he suffered an injury in the course of his employment. West Virginia Code § 23-4­
1(a) (2008).

        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: January 29, 2014

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

Justice Allen H. Loughry II





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