                                STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS
                                                                                     FILED
MELISSA WEBB,                                                                        July 20, 2018
Claimant Below, Petitioner                                                    EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

vs.)      No. 18-0188 (BOR Appeal No. 2052207)
                      (Claim No. 2017023833)

CRACKER BARREL OLD COUNTRY STORE, INC.,
Employer Below, Respondent


                                MEMORANDUM DECISION
      Petitioner Melissa Webb, by Reginald D. Henry, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review.1

       The issue on appeal is compensability. The claims administrator rejected the claim on
June 7, 2017. The Office of Judges affirmed the decision in its September 12, 2017, Order. The
Order was affirmed by the Board of Review on February 23, 2018. 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.

       Ms. Webb, a cashier and merchandise stocker, alleges that she injured her lower back in
the course of her employment on March 24, 2017, while unloading boxes and stocking shelves.
Ms. Webb has a long history of lower back problems. A lumbar MRI taken on February 9, 2008,
showed mild multilevel degenerative facet arthropathy without significant degenerative disc
disease or stenosis. In April of 2009, Ms. Webb was treated at Liberty Hospital in Missouri for
low back pain that radiated into the right leg. The diagnosis was acute sciatica. On November 6,


1
    A response was not filed on behalf of Cracker Barrel Old Country Store, Inc.
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2009, it was noted that Ms. Webb had undergone an MRI of the lumbar spine, which showed a
bulging disc at L4-5 and facet joint degeneration at L5-S1.

        Treatment notes from JayHawk Primary Care/Creekwood Family Care from October of
2009 through April of 2010 indicate Ms. Webb was treated multiple times for low back pain,
sciatica, and radiculopathy into the right leg. An MRI was performed on November 3, 2009, and
showed a slight disc bulge at L4-5. Finally, a report of injury from the Missouri Department of
Labor indicates Ms. Webb injured her lower back at work on July 26, 2015, while lifting boxes.

        Ms. Webb first sought treatment for the alleged injury in the instant claim on March 28,
2017. A treatment note from Beckley ARH Hospital indicates Ms. Webb reported low back pain
on the right side radiating to mid-back. She stated that the pain began on Friday after unloading a
truck at work alone and being on a ladder stocking lamps. A CT scan showed minor bulges from
L4 to S1 but no acute findings. She was diagnosed with acute low back pain and given an
injection and medications.

        Ms. Webb began treating with Syed Zahir, M.D., on March 31, 2017. His treatment note
indicates Ms. Webb injured her back on March 24, 2017, while carrying a lot of boxes. She had
limited range of motion on examination, pain in the back, and some numbness in the right lower
leg. Dr. Zahir diagnosed acute lumbosacral strain and possible herniated L4-5 and L5-S1 discs.
An MRI was recommended. On April 14, 2017, Ms. Webb reported back pain and pain in both
legs. On May 2, 2017, she stated that she had been having severe back pain. Dr. Zahir’s
impression was herniated L4-5 and L5-S1 discs with bilateral radiculitis. Dr. Zahir noted on May
23, 2017, that Ms. Webb still needed an MRI as well as referral to a neurosurgeon. On June 13,
2017, Ms. Webb was still reporting a lot of back pain, radiation into both legs, and limitation in
range of motion. Dr. Zahir noted on June 29, 2017, that the MRI showed evidence of a disc
herniation at L5-S1, bulging at L4-5, and hypertrophy. He recommended referral to a
neurosurgeon.

        Claim notes were taken by Janet Turner, for the claims administrator, on April 12, 2017.
They indicate Ms. Webb was unloading a truck on March 24, 2017. It was a three person truck
but one person did not show up that day and the other worked slowly. Ms. Webb alleged that she
reported the injury to Dean Cook two hours before her shift the following day. She reported that
the pain is on the right side of the middle of her back from the waist up. She stated that she had
never injured that part of her back before. Ms. Webb alleged that she reported her injury to four
different managers and Sheila told her to go home and rest.

        A report of injury was completed on April 25, 2017, in which Ms. Webb indicated she
was injured on March 24, 2017, while unloading merchandise from a truck, stacking boxes, and
lifting boxes while on a ladder. Treatment was initially sought at Beckley ARH Hospital on
March 28, 2017. The physician’s section was completed on April 25, 2017, and the diagnosis
was listed as occupationally related low back strain. The claims administrator rejected the claim
on June 7, 2017.


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        A lumbar MRI was performed on June 19, 2017, and showed minimal spurring and mild
facet arthropathy at L2-3; mild ligamentum flavum hypertrophy and facet arthropathy at L3-4;
minimal disc bulging, facet arthropathy, ligamentum flavum hypertrophy, and mild canal
stenosis at L4-5; and a shallow central disc protrusion and facet arthropathy, at L5-S1. Dr. Zahir
opined in a June 27, 2017, treatment note that Ms. Webb was totally disabled. He stated that she
needs to be seen by a neurosurgeon and, based on the MRI findings, may require surgery.

        Ms. Webb testified in a deposition on July 14, 2017, that on the day she was injured, she
worked for nine hours unloading a truck and stocking shelves. There were supposed to be three
people unloading that day but one called off and the other only helped for a few hours. The
boxes weighed between ten and forty pounds. Ms. Webb stated that she had no back pain prior to
coming to work that day and that she had not been taking any pain medication for her back from
October of 2016 until the alleged injury on March 24, 2017. She alleged that the injury was
caused by stocking heavy lamps on a shelf that required her to climb a ladder and lift the lamp
over her head. On the third lamp, she experienced severe, sharp pain in her back. She called off
of work the following day because she was in too much pain. Ms. Webb stated that two days
after the injury, she reported to work and told Melissa Edwards, general manager, that she had
injured her back and wanted to file a claim but no information was provided to her.

        Ms. Webb testified that she has been seeing Dr. Zahir for the injury since March 31,
2017. She denied ever having experienced low back pain, such as it is now, prior to the alleged
March 24, 2017, injury. She asserted that she never received communications from the employer
or claims administrator. Ms. Webb testified that she had never had an MRI of her back until Dr.
Zahir ordered one on June 19, 2017. She denied any previous back injuries, though she did admit
to being treated for sciatica in the past. Ms. Webb alleged that she told Dean Cook, the restaurant
manager, that she hurt her back the day that it happened. She told him again the next morning
and on March 26, 2017, she asserted that she reported the injury to Melissa Edwards. She also
reported the injury to two other retail managers who were in the store that day during inventory.
Ms. Webb explained that she did not seek medical treatment until March 28, 2017, because she
thought her back would improve with rest.

        Kelvin Dean Cook, associate manager, reported in a statement that Ms. Webb never
informed him that she injured her back on March 24, 2017, while unloading boxes. He stated that
if he had been informed that she injured herself on the job, he would have made her fill out an
incident report as company policy mandates.

        Sheila Milam, district manager, stated in two affidavits that Ms. Webb informed her on
March 26, 2017, that she would not return to work that evening because she was too tired from
processing merchandise on March 24, 2017. Ms. Milam stated that she would find someone to
replace Ms. Webb if she was too tired to work and Ms. Webb offered to come back to work if
Ms. Milam could not find a replacement. Ms. Milam asserted that Ms. Webb never informed her
that she injured her back on March 24, 2017, or that she was in pain. If Ms. Webb had reported
an injury, Ms. Milam stated that she would have had her complete an incident report, as is
company policy. Ms. Milam also stated that the lamps Ms. Webb was stocking on March 24,
2017, weighed five pounds and could be lifted with one hand.
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       Melissa Edwards, manager, also completed a statement in which she said that Ms. Webb
never informed her that she injured her back while stocking on March 24, 2017. At no time did
she have a meeting with Ms. Webb in her office where she was informed that an injury had
occurred. Ms. Webb told Ms. Edwards that she could not work on March 26, 2017, because she
was too tired. Ms. Edwards stated that if Ms. Webb had reported an injury, an incident report
would have been completed.

        Prasadarao Mukkamala, M.D., performed an independent medical evaluation on July 20,
2017, in which he diagnosed low back pain. He opined that there was no credible medical
evidence showing that Ms. Webb injured her back on March 24, 2017. He stated that there was
no isolated fortuitous event and that loading and unloading boxes is a normal work activity for
her. Dr. Mukkamala opined that if Ms. Webb did sustain an injury that day, it would have been
nothing more than a lumbar sprain, which should have resolved in four weeks. The fact that she
still complains of pain, with no objective physical findings in support, indicates that she did not
sustain a work-related injury. Dr. Mukkamala also noted extreme symptom magnification. He
stated that there was no need for further treatment and Ms. Webb should be capable of returning
to work. The MRI findings were noted to be degenerative, preexisting, and not causally related to
the March 24, 2017, incident. He opined that the differences between the November 3, 2009,
MRI and the June 19, 2017, MRI are merely the result of the natural aging process.

        Ms. Webb testified in a hearing held before the Office of Judges on August 15, 2017,
regarding the April 12, 2017, recorded statement she made to the claims administrator that was
then converted to a typed statement. She stated that the claims administrator left out parts of her
statement. She alleged that the lamps she was carrying on the date of the alleged injury were very
heavy and had a concrete base. She had to carry them up a ladder and lift them onto a ten foot
tall metal shelf. On cross examination, Ms. Webb stated that she had been treated for sciatica in
the past with pain medication and injections. She was not aware that she had also been diagnosed
with lumbar radiculopathy. Ms. Webb denied recalling that she had been treated with narcotic
pain medication from 2009 through 2010. She also denied telling a physician in 2009 that she
fell six years prior and had occasional flair-ups of back pain since. She stated that she had not
been treated for sciatica since 2010.

         The Office of Judges affirmed the claims administrator’s rejection of the claim in its
September 12, 2017, Order. It found inconsistencies in Ms. Webb’s reporting of her injury. She
first testified that she felt pain while coming down a ladder and then stated that it was caused by
lifting six lamps. She also asserted that she reported the injury to her supervisors immediately;
however, none of the supervisors corroborated her story. Ms. Edwards and Ms. Milam both
stated that Ms. Webb told them she could not come to work for her next shift because she was
too tired from unloading boxes. They both said that she never mentioned back pain or an injury.

       The Office of Judges further found that Ms. Webb testified she suffered from sciatica
with no injury. However, records from Liberty Hospital show that she was treated for low back
pain with gradual onset that had been persistent for several days. A coccyx fracture seven years
prior was also documented. The Office of Judges noted that Ms. Webb underwent a lumbar MRI
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in 2008 and was seen by a pain management specialist in 2009, who noted that the MRI showed
a bulging L4-5 disc and facet joint degeneration from L4-S1. On the intake form for physical
therapy, it was noted that Ms. Webb was injured when she fell on concrete six years prior and
that she needed treatment for flair ups of back pain. In October of 2009, she began treating with
Creekwood Family Care for sciatica and low back pain. In April of 2010, she reported that she
injured her back while moving furniture and requested pain medication. Finally, Ms. Webb
sustained a low back injury in July of 2015 while lifting a box. Though she denied this injury, the
name, address, and date of birth on the Missouri Department of Labor’s report of injury are the
same as hers.

        The Office of Judges next found that Ms. Webb did not seek immediate medical
treatment for the alleged injury on March 24, 2017, even though she testified that she was in
significant pain. She failed to file an incident report with the employer and did not sign a report
of injury until April 19, 2017. The Office of Judges therefore concluded that there is reason to
question that an injury occurred. It based its decision partly on the fact that there were
inconsistencies in Ms. Webb’s reporting of the events that happened that day and partly on the
fact that “she had a history of back problems that she was less than forthcoming to report.” The
Office of Judges concluded that it was more likely than not that Ms. Webb did not sustain a
compensable injury on March 24, 2017. The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its Order on February 23, 2018.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Ms. Webb denied having prior low back problems, but the
evidence of record shows that she had prior low back injuries and sought treatment for her lower
back on more than one occasion. Further, her version of events was contradicted by the
statements of Mr. Cook, Ms. Milam, and Ms. Edwards, who all asserted that Ms. Webb did not
report a work related injury.

        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: July 20, 2018

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

Justice Loughry, Allen H., II suspended and therefore not participating.
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