Arch Coal, Inc. v. Lemon
| Decision Date | 30 May 2018 |
| Docket Number | No. 17-0152,17-0152 |
| Citation | 814 S.E.2d 667 |
| Court | West Virginia Supreme Court |
| Parties | ARCH COAL, INC., Employer Below, Petitioner v. JIMMIE LEMON, Claimant Below, Respondent |
Jeffrey M. Carder, Esq., Jeffrey B. Brannon, Esq., Cipriani & Werner, P.C., Charleston, West Virginia, Counsel for Petitioner Arch Coal, Inc.
Reginald D. Henry, Esq., Rodney A. Skeens, Esq., Beckley, West Virginia, Counsel for Respondent Jimmie Lemon
This workers' compensation claim concerns a low back injury the claimant, Jimmie Lemon, maintains occurred in the course of and resulting from his employment with Arch Coal, Inc. The Office of Judges found the claim compensable and designated Lemon’s compensable condition as a herniated disc at L4-5. The decision of the Office of Judges was affirmed by the Workers' Compensation Board of Review. On appeal, however, this Court concluded that Lemon’s injury was not work-related. Consequently, in a Memorandum Decision filed in December 2017 this Court reversed the Board of Review and remanded the case with directions that the claim be rejected.1
On March 16, 2018, this Court granted Lemon’s petition for rehearing, and on May 15, 2018, argument on the petition was heard.2 Upon reconsideration, this Court upholds the prior administrative finding that, based on the preponderance of the evidence, Lemon’s injury was work-related. Therefore, the December 2017 Memorandum Decision is withdrawn, the decision of the Board of Review is affirmed, and this case is remanded with directions to reinstate the decisions of the Office of Judges and the Board of Review that Lemon’s claim is compensable, with his designated compensable condition as a herniated disc at L4-5.
Lemon was a general laborer who worked underground at a mine site operated by Arch Coal. Workers' compensation records show prior claims regarding his back. One of those claims resulted in an MRI of Lemon’s lumbar spine conducted on March 1, 2009, which revealed "mild concentric bulging" of Lemon’s L4-5 and L5-S1 intervertebral discs, with "[n]o lumbar intervertebral disk herniation or spinal stenosis identified." Referring to the MRI, Dr. Patel, an orthopaedic spine surgeon, indicated that surgery was not warranted at that time.
According to Lemon, the injury regarding the present claim occurred later on April 6, 2016. Lemon states that he was driving a shuttle car on a rough section of underground terrain when the car hit a large hole, causing a jarring or impact injury to his low back. Lemon told his foreman that he had hurt himself and needed to go home early and that he would see a doctor the next morning.
On April 7, 2016, Lemon saw Dr. Kominsky, a chiropractic physician, who determined that Lemon had a lumbar disc protrusion with nerve root compression. Dr. Kominsky recommended that Lemon undergo an MRI scan. Later that day, Lemon reported to General Mine Foreman Ronald Price and stated that the doctor told him to take it easy at work. According to Price, Lemon was moving slow with a noticeable limp and stated that his back was killing him. However, Lemon said he did not know how he hurt his back. Price did not let Lemon work underground that day and told Lemon to report back after his next doctor appointment.
An MRI of Lemon’s lumbar spine was conducted on April 13, 2016, which revealed the following: Later, on April 13, 2016, Lemon reported to the mine site and, referring to the MRI, stated that he wanted to fill out an accident report.
According to the April 13, 2016, statements of Foreman Price and Mine Manager Kenneth Evans, Lemon indicated that his back problem was due to wear and tear over the years. Thus, Lemon could not determine when the present injury occurred. Price noted, however, that Lemon recalled that when "running a shuttle car his back was hurting so bad he couldn't hardly breathe and had a shift foreman bring him out early." An April 13, 2016, statement of Assistant General Mine Foreman Donnie Crum related that Lemon said that his back problem was due to a previous injury when he was young and that on April 1, 2016, (prior to the alleged injury of April 6, 2016,) Lemon stated that he did not hurt his back while on the job.
On April 20, 2016, Lemon completed the Employees' and Physicians' Report of Occupational Injury or Disease. Lemon stated in the Report that the injury occurred on April 6, 2016, and was caused when the vehicle he was operating hit a hole in the rough terrain on his employer’s premises. Dr. Kominsky completed the physician’s portion of the Report and, designating Lemon’s injury as occupational, stated: "MRI indicates a new injury at L4-5 with nerve root compression / DJD at L5-S1."3
The Claim Administrator denied the claim on April 29, 2016, on the basis that Lemon’s injury was not work-related. Thereafter, additional medical reports were obtained regarding the nature of Lemon’s low back injury.
Dr. Kominsky referred Lemon to Dr. Orphanos, M.D., of Neurological Associates, Inc., who performed a discectomy on Lemon’s low back on June 24, 2016, following a pre-operative diagnosis of "right L4-5 far lateral disc herniation." Later, Dr. Soulsby, M.D., of Orthoclinic, PC, completed a Record Review and Opinion of Lemon’s condition. Dr. Soulsby indicated that Lemon’s injury was not traumatic in origin. Rather, Lemon’s low back condition was the consequence of progressive, pre-existing degenerative disc disease. Finally, an Age of Injury Analysis and MRI Comparison were conducted by Dr. Luchs, M.D., of Diagnostic Dating Specialists, LLC. Dr. Luchs compared the March 1, 2009, MRI with the post-injury April 13, 2016, MRI and concluded that Lemon’s condition was due to a progression of degenerative disc disease with chronic disc herniation at L4-5.4
Following an evidentiary hearing, the Administrative Law Judge of the Office of Judges entered a decision on August 18, 2016, which reversed the decision of the Claim Administrator and found the claim compensable. The Administrative Law Judge found Lemon’s compensable condition to be a herniated disc at L4-5, which had required surgery.
The Administrative Law Judge noted that some evaluating physicians concluded that Lemon’s condition was due to degenerative changes rather than a work-related injury. However, the Administrative Law Judge emphasized that, after the alleged injury, the April 13, 2016, MRI established that, in addition to the degenerative changes, Lemon exhibited a right lateral disc herniation and disc bulge at L4-5 "causing right foraminal [passage] encroachment and nerve root sheath impingement." According to the Administrative Law Judge, the disc herniation "could certainly explain the claimant’s assertions of severe low back pain running down the right leg."
On January 20 2017, the Workers' Compensation Board of Review adopted the findings and conclusions of the Administrative Law Judge and affirmed the Office of Judges' August 18, 2016, decision. Arch Coal’s motion for reconsideration was denied.
Arch Coal filed an appeal in this Court from the January 20, 2017, decision of the Board of Review.
On December 19, 2017, this Court issued a Memorandum Decision in which we determined that the evidence showed that Lemon did not sustain a work-related injury on April 6, 2016. Consequently, this Court reversed the Board of Review and directed that the Claim Administrator’s April 29, 2016, rejection of the claim be reinstated.
Noting Lemon’s long history of back problems, this Court stated as follows:
[Lemon] previously had a disc bulge at L4-5, as seen on the March 2009 MRI. The April 2016 MRI showed that disc had herniated. Though Dr. Orphanos noted that Mr. Lemon was injured at work, Dr. Soulsby opined in his record review that he found no evidence of any significant injury on the date in question and stated that Mr. Lemon’s symptoms are the result of his preexisting back conditions. Dr. Luchs, who performed both a comparison and an aging analysis report, determined that the herniated disc is the result of the typical progression of degenerative disc disease and interval development of what appears to be a chronic disc herniation at L4-5.
Lemon filed a petition for rehearing from the Memorandum Decision, asserting that this Court failed to afford proper deference to the findings of the Administrative Law Judge and Board of Review. In March 2018, this Court granted a rehearing in the case.5
This Court’s standard of review in workers' compensation cases is provided by statute. W.Va. Code , 23-5-15(b) [2005], states that deference shall be given to the Board of Review’s "findings, reasoning and conclusions." In the current matter, by affirming the Office of Judges, the Board of Review effectively reversed the denial of the claim by the Claim Administrator. Thus, subsection (d) of the statute is applicable which provides a detailed basis for reviewing the Board of Review’s decision:
(d) If the decision of the Board effectively represents a reversal of a prior ruling of either the commission or the Office of Judges that was entered on the same issue in the same claim, the decision of the board may be reversed or modified by the Supreme Court of Appeals only if the decision is in clear violation of constitutional or statutory provisions, is clearly the result of erroneous conclusions of law, or is so clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor of the board’s findings, reasoning and conclusions, there is insufficient support to sustain the decision. The court may not conduct a de novo re-weighing of the...
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