                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

MICHAEL FARMER,                                                                     FILED
Claimant Below, Petitioner                                                         January 25, 2018
                                                                             EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
vs.)   No. 17-0727 (BOR Appeal No. 2051865)
                   (Claim No. 2017012859)

DCI/ SHIRES, INC.,
Employer Below, Respondent

                              MEMORANDUM DECISION
      Petitioner Michael Farmer, by Reginald D. Henry, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. DCI/Shires, Inc., by Timothy E.
Huffman, its attorney, filed a timely response.

        The issue on appeal is compensability. The claims administrator rejected the claim on
November 29, 2016. The Office of Judges affirmed the decision in its March 9, 2017, Order. The
Order was affirmed by the Board of Review on July 27, 2017. 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. Farmer, a fleet mechanic, alleges that he was injured in the course of his
employment on November 9, 2016, while swinging a sledgehammer. Prior to that day, on
October 26, 2016, Mark Deel, safety manager for DCI/Shires, Inc., wrote a statement in which
he said that Mr. Farmer was limping. When asked about an injury, Mr. Farmer told Mr. Deel that
he worked around his house all weekend and his back and leg were hurting. Mr. Farmer then told
Mr. Deel that it was nothing work-related. On November 7, 2016, Linda Meredith, a secretary
for DCI/Shires, Inc., stated in an email that Mr. Farmer was taking a sick day. He did not call the
office or leave an email address. On November 11, 2016, Ms. Meredith stated in an email that
Mr. Farmer failed to report to work and did not call in to report his absence.
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        A treatment note from Bluefield Regional Medical Center dated November 15, 2016,
indicates Mr. Farmer underwent a CT scan of his abdomen and pelvis for pain. It showed a
prominent bladder wall. It also showed multilevel disc changes throughout the spine. An
emergency room nurse’s note from that day states that Mr. Farmer was treated for back sprain
and muscle spasm in the lumbar region. Mr. Farmer reported back pain since Wednesday and the
mechanism of injury was listed as turning. The Emergency Room Physician Document indicates
Ankur Fadia, M.D., examined Mr. Farmer. Dr. Fadia stated that Mr. Farmer had lower back pain
with “no known mechanism of injury”. Mr. Farmer later stated that the “problem was sustained
from unknown cause”. Mr. Farmer reported his symptoms began the day before. He stated that
he had previously experienced similar symptoms and was told at that time that he had a back
sprain. Dr. Fadia diagnosed lumbar region back sprain and lumbar region muscle spasm. Mr.
Farmer listed his private health insurance on medical forms.

       The employer’s first report of injury, completed by Joyce Shires, indicates Mr. Farmer
was a mechanic who injured his back while working on a backhoe bucket. He reported the injury
on November 16, 2016. Ms. Shires stated that Mr. Farmer had back issues and had previously
missed work. She questioned the injury because Mr. Farmer told coworkers he was hurt before
coming to work and he did not report a work-related injury until after he was fired.

         In a recorded conversation on November 17, 2016, between Mr. Farmer and Mary Rose
of BrickStreet Insurance, the claims administrator, Mr. Farmer stated that he injured his back on
November 9, 2016, between 4:00 and 5:30 in the employer’s garage. He stated that he was
working on a bucket which involved welding and using a ten pound sledgehammer. He stated
that at the time of this injury, he was working with a co-worker, Pat, who was aware of the injury
and advised him to sit down. Mr. Farmer alleged that he was off work for four or five days and
called in but he was told he did not need to call in. He then stated that he called in to an
answering service and did not actually speak to anyone. Mr. Farmer said that he did not complete
a report of injury and that the only person who knew of the injury was Pat. However, he then
stated that “they asked me to call in every morning”. Mr. Farmer did not seek medical treatment
until November 16, 2016, the Tuesday after the injury allegedly occurred. He alleged this was
because he could not move and on Tuesday, he could walk. He stated that Ms. Shires called him
on November 16, 2016, and fired him but just before she fired him, Mr. Farmer reported that he
was injured at work. He alleged that he reported a work-related injury on November 15, 2016, at
the hospital and completed a first report of injury form. He stated that his back bothered him for
two to three weeks prior to the alleged injury and some of his coworkers were aware. He stated
that he had moved pellets at home two months prior and his back started hurting three or four
weeks before the alleged injury on November 9, 2016. Mr. Farmer also admitted to having back
issues fifteen to twenty years prior.

        The claims administrator rejected the claim on November 29, 2016. Mr. Farmer again
sought treatment on November 30, 2016. An emergency room nurse documentation form
indicates Mr. Farmer returned due to back pain that radiated into his left leg. The onset was two
weeks prior. Treatment notes stated that he was diagnosed with back pain with sciatica on the
left and denied any similar episodes in the past. Treatment notes from Joshua Keene, D.C., from
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December of 2016 through January of 2017, indicate Mr. Farmer had lumbar and left leg pain.
He was sent for an MRI and then referred to a neurosurgeon. A lumbar MRI, interpreted by
Dennis Walker, D.O., showed multilevel spondylosis at L4-5 with extruded disc material at L5
resulting in severe narrowing of the right lateral and central canal. There was moderate
effacement of the right L5 nerve by disc material.

       The February 7, 2017, employee’s and physician’s report of injury indicates Mr. Farmer
injured his back while swinging a sledgehammer. The physician’s section, completed by
Bluefield Regional Medical Center, lists the diagnoses as back sprain with muscle spasm in the
lumbar region.

         Mr. Farmer testified in a hearing before the Office of Judges on February 13, 2017. He
stated that he was working as a diesel mechanic on November 9, 2016, when he injured his back
while swinging a sledgehammer. Mr. Farmer asserted that he told his coworker, Pat, that he
injured himself. Mr. Farmer stated that he missed four days of work after the injury and called
into work each day to leave a voice message saying he would not be in. Mr. Farmer alleged that
he injured his mid/upper back between August and October of 2016. He also admitted to a prior
back injury three years prior but stated that the pain had resolved. Mr. Farmer testified that he
used the company cell phone to call in to work on the four days that he missed. On November
15, 2016, he said that he spoke to Ms. Shires and told her of his injury. He denied hurting his
back while moving a forty pound bag of wood pellets at his home. Mr. Farmer’s wife also
testified. She stated that Mr. Farmer came home on November 9, 2016, in a lot of pain. She said
that she did not hear him call in to work but he told her that he had. Mrs. Farmer also testified
that her husband hurt his back while moving wood pellets at home and that his back started
hurting three or four weeks before November 9, 2016.

        Ms. Shires also testified in the hearing. She stated that she is a part owner of the company
and serves as the vice president of administration, which includes human resources and safety.
During the week of November 7, 2016, through November 11, 2016, Ms. Shires received an
email from Linda Meredith stating that attempts to contact Mr. Farmer to determine why he was
not at work were unsuccessful. Ms. Shires stated that she left a message for Mr. Farmer on his
home phone but the message was never returned. Ms. Shires stated that the company had an
answering service and that there were phone difficulties periodically during that time; however,
messages were still left. Ms. Shires testified that Mr. Farmer finally answered his phone on
November 15, 2016, at which time she told him he was fired for failing to report to work. She
also said that he had not been performing his work duties as required and had been working more
hours than were approved. Ms. Shires stated that Mr. Farmer did not report a work-related injury
to her at that time and did not tell her he was going to the hospital. Ms. Shires further testified
that she received a note from safety manager, Mr. Deel, indicating he saw Mr. Farmer limping on
October 24, 2016, and Mr. Farmer explained that he injured his back while moving wood pellets
at his home. Ms. Shires stated that the company first learned of the alleged injury on November
16, 2016, when Mr. Farmer called to ask for his workers compensation number and said that he
had gone to the hospital. Ms. Shires spoke to Mr. Farmer’s coworker, Patrick Groseclose, who
stated that Mr. Farmer’s back hurt prior to coming to work because he’d hurt himself over the
weekend. Ms. Shires was unsure which part of Mr. Farmer’s back he was referring to.
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        The Office of Judges affirmed the claims administrator’s decision on March 9, 2017. It
found that it is undisputed that Mr. Farmer did not report the alleged injury on November 9,
2016, and did not report it to his employer until November 15, 2016, which was the day he was
fired and the day he first sought treatment for his lower back. The Office of Judges further found
that Mr. Farmer’s co-worker, Patrick Groseclose, told Ms. Shires that Mr. Farmer told him he
hurt himself over the weekend. The Office of Judges found evidence that Mr. Farmer injured his
back while moving wood pellets. Mr. Deel, safety manager, noticed Mr. Farmer limping on
October 24, 2016, and when he inquired about it, Mr. Farmer stated that he hurt his back
working around the house that weekend. Mr. Farmer denied moving wood pellets at home in his
testimony; however, toward the end of the hearing, his wife stated that he moved pellets at home
and his back started hurting three or four weeks before the alleged November 9, 2016, injury.
The Office of Judges found that this corroborated Mr. Deel’s account. The Office of Judges
concluded that the evidence shows that Mr. Farmer had back pain prior to November 9, 2016.

        The Office of Judges next determined that Mr. Farmer sought treatment for his back on
November 15, 2016. There were two separate treatment notes from that visit. The first, a nurses’
note, indicates Mr. Farmer reported back pain that began on Wednesday. The mechanism of
injury was listed as turning. This would be consistent with pain that started on November 9,
2016. However, there was no mention of a work-related injury. The second report from that day
indicates the “problem was sustained from an unknown cause” and that the symptoms began the
day before, November 14, 2016, which was inconsistent with the alleged injury on November 9,
2016. Further, Mr. Farmer did not report his alleged injury until the day he sought medical
treatment, November 15, 2016. That same day, prior to seeking treatment, he was terminated
from his position for failure to report to work. Though he alleged that he called and left messages
on the days he missed, the Office of Judges determined that the evidence indicates otherwise. In
a recorded phone conversation with the claims administrator, Mr. Farmer said that he was off of
work for four or five days and that he called in but was told that he did not need to call in. He
then stated that he called in to an answering service but never spoke to a person. Later, in his
statement, he said that the employer asked him to call in every morning. Ms. Shires, part owner
of the company, testified that the employer received no messages from Mr. Farmer during the
time he was not reporting to work. She also stated that they attempted to contact Mr. Farmer but
were unable to reach him.

        The Office of Judges ultimately concluded that Mr. Farmer injured his back outside of
work prior to November 9, 2016. Though it is possible his pain increased on that day, a
preponderance of the evidence shows that he did not sustain a work-related injury. Further, Mr.
Farmer missed two days of work before the alleged injury and it was noted on October 24, 2016,
that he reported injuring his back at home. Further, the medical evidence from November 15,
2016, does not indicate that a work-related injury occurred. Finally, Mr. Farmer did not report
the alleged injury until after his employment was terminated. The Board of Review adopted the
findings of fact and conclusions of law of the Office of Judges and affirmed its decision on July
27, 2017.


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       After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The evidence indicates Mr. Farmer injured his back outside of
work prior to November 9, 2016. Further, he did not report a work-related injury until after he
was terminated from his employment for failure to report to work.

        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 25, 2018

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




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