Dodson v. WORKERS'COMPENSATION DIV.

• Citation: 558 S.E.2d 635,210 W.Va. 636
• Decision Date: 08 November 2001
• Docket Number: No. 29264.,29264.
• Court: Supreme Court of West Virginia
• Parties: Robert I. DODSON, Plaintiff Below, Appellant v. WORKERS' COMPENSATION DIVISION and Brown & Root, Defendants Below, Appellees.

558 S.E.2d 635

210 W.Va. 636

Robert I. DODSON, Plaintiff Below, Appellant v. WORKERS' COMPENSATION DIVISION and Brown & Root, Defendants Below, Appellees.

No. 29264.

Supreme Court of Appeals of West Virginia.

Submitted October 3, 2001.

Decided November 8, 2001.

Dissenting Opinion of Justice Maynard December 11, 2001.

Concurring Opinion of Justice Starcher December 13, 2001.

Don M. Stacy, Reginald D. Henry, Law Office of Don M. Stacy, Beckley, for Appellant.

Sandra L. Evans, Charleston, for Appellee, Workers' Compensation Division.

Barney Frazier, Kay, Casto & Chaney, Charleston, for Appellee, Brown & Root. ALBRIGHT, Justice.

In this appeal from the decision of the Workers' Compensation Appeal Board (hereinafter "WCAB") certified on May 31, 2000, the claimant below, Robert I. Dodson (hereinafter "Appellant"), argues that his claim for benefits was improperly denied. The WCAB's decision reversed the ruling of the Office of Judges dated September 13, 1999, which concurred with the Workers' Compensation Division decision of October 16, 1998, finding that Appellant sustained a compensable back injury while employed by Brown & Root, Inc. (hereinafter "B & R").¹ Appellant contends that the WCAB erred in finding that the administrative law judge was clearly wrong in concluding that Appellant sustained a back injury in the course and as a result of his employment. For the reasons stated below, we reverse the WCAB order.

I. Factual and Procedural Background

Appellant's claim for workers' compensation benefits, dated August 25, 1998, stated that he had pain in his lower back with throbbing and numbness in his legs as a result of an injury he sustained on July 31, 1998, "when doing [a] physical test for pre-employment" at the offices of B & R. The application also related that Appellant stopped working on August 14, 1998, due to the injury. B & R protested the application for benefits primarily on the ground that Appellant was not an employee at the time of the purported injury because he was not on B & R's payroll until August 3, 1998.

Events leading up to the alleged injury are revealed in the record. During a deposition on March 29, 1999, Appellant explained that some time during the month of July in 1998, he contacted B & R and asked a human resources personnel assistant, Ms. Mary Kays, about job openings for electricians. Appellant maintains that Ms. Kays asked him to report to B & R's personnel office on July 31, 1998, and advised him he had to complete a safety orientation program² before that date. Because he had worked for B & R before,³ Appellant said he knew that the purpose of the July 31, 1998, appointment was to fill out the necessary paperwork, as well as to complete a drug screening test, safety comprehension test and a physical agility test.⁴

Appellant's low back injury allegedly occurred on July 31, 1998, while performing the agility test which Ms. Kays administered. Appellant testified that one component of the agility test required a person to bend forward and pull on a bar suspended on a chain. He explained that he hurt his back the first time he tried to pull on the bar because the bar was below his knees which placed his back at a "steep angle" when he pulled on it. According to Appellant, he asked Ms. Kays to reposition the bar after the first attempt, but she encouraged him to try two more times before she acceded to his request. Appellant maintained that after the adjustment his back was in a more straightened position, which enabled him to complete the pull successfully. Appellant admitted that he did not tell Ms. Kays during or after the agility test that he experienced back pain.

Ms. Kays' testimony during a June 1, 1999, telephone deposition challenged Appellant's explanation of what transpired during the agility test. She said that she made the bar adjustment before Appellant even attempted the lift. She also confirmed that Appellant did not express, by words or behavior, that he had been injured during the test.

Immediately following the testing with Ms. Kays, Appellant was sent to Dr. Arvind Viradia, whose specialty is internal medicine, for a complete physical examination. During Dr. Viradia's testimony it was established that he had performed physical examinations for B & R for eight years. The reports and testimony of the doctor indicated that he saw no evidence of a back injury during the course of the physical examination,⁵ nor had Appellant told the doctor that he had injured his back during the agility test. In his report to B & R dated July 31, 1998, Dr. Viradia checked the box on the form which stated that Appellant was qualified to "be assigned to any work consistent with skills and training; examination revealed no immediately significant medical problems."

After completing the physical, Appellant returned to Ms. Kays' office on July 31, 1998, and Ms. Kays told him to report to work August 3, 1998. A memo dated August 26, 1998, authored by Ms. Kays to Mike King, B & R's health safety environmental coordinator, stated "Mr. Dodson was hired on July 31, 1998, as an electrician, reporting to UCC-South Charleston on August 3, 1998." Appellant was placed on B & R's payroll on August 3, 1998, and he spent the remainder of the week in an orientation class which was attended by one other trainee, Steve Collias.

Appellant testified that during that week in August, 1998, his low back felt uncomfortable sitting through the orientation, and he remarked about the discomfort to Mr. Collias. Mr. Collias filed a written statement with B & R dated August 24, 1998, saying that during the orientation classes Appellant had mentioned to him that "when he did his strength test in the Dunbar office he had hurt his back while doing one of the tests." Mr. Collias reiterated this information during a deposition held on June 1, 1999. The orientation instructor, Jimmy Johnston, was also deposed on June 1, 1999, and he testified that Appellant never told him that he injured his back and that Appellant exhibited no back problems while in the class.

The week following the orientation, August 10 through August 14, Appellant was sent by B & R to work on electrical jobs in the field. Appellant testified that on August 12 and 13, he and a coworker were assigned to a job which involved driving ten-foot-long rods into the ground with a jackhammer which weighed approximately ninety pounds. Appellant operated the jackhammer during the two-day period because he was not certified to operate the bucket lift which was needed to raise the person operating the jackhammer to a height above the rods. Additionally, Appellant lifted and carried the jackhammer about 150 feet between the bucket lift and the tool room where the jackhammers were stored. Appellant testified that lifting the jackhammer caused increased back pain, but he continued to finish out the work week which ended on Friday, August 14, 1998. Appellant testified that while driving home on that Friday, he felt a sharp pain in his groin area, and when he got out of bed the next morning he had throbbing pain at the top of his legs with a burning sensation going down the inside of his legs. On Sunday, August 16, Appellant's brother was killed in a car accident, and B & R granted Appellant's request to take the week off from work. Appellant said that the pain in his back and legs worsened during the week he was off.

It was not until he returned to work on August 24, 1998, that Appellant first reported his injury of July 31, 1998, to B & R's safety office by filing a written statement regarding the incident. While conceding that he did not comply with B & R's policy to report any on-the-job injury immediately, Appellant explained in his testimony that he did not think that the soreness and pain in his back was something that would last and said,

I didn't want to complain because, basically, from what I've seen from Brown & Root in my past experience from working with them, it seems like to me guys that complain are the guys that go down the road first, and I'm just trying to keep a job with them basically at that time.

Appellant also testified that he had not previously injured his back in any way. The B & R Medical Questionnaire which Appellant completed before he participated in the agility test likewise indicated that he had no prior injury to his back.

After he filed the August 24, 1998, written injury statement, Appellant was taken by B & R's health safety environmental coordinator to see Dr. Viradia. Dr. Viradia testified that he found no restrictions in Appellant's range of motion, but during palpitation of the lower back he detected tenderness and muscle spasm. He diagnosed Appellant with acute lumbar sprain, supplied Appellant with muscle relaxers and anti-inflammatory medication and ordered a modified work schedule for two weeks. Appellant went to see Dr. Vincent E. Wardlow, a chiropractor, on August 25, 1998, the same day that Appellant completed his workers' compensation claim form. Dr. Wardlow diagnosed Appellant's condition as lumbosacral sprain, sacroiliac sprain and lumbosacral neuritis. The attending physician's portion of the claim form was completed by Dr. Wardlow, who indicated that Appellant's low back injury was the result of completing a pre-employment strength test and that the disability suffered by Appellant was the direct result of this injury.

On October 16, 1998, the Workers' Compensation Division (hereinafter "the Division") held Appellant's claim compensable and awarded temporary total disability benefits from August 25, 1998, through October 1, 1998. At the request of the Division, Appellant was examined by Dr. A.E. Landis, an orthopaedic surgeon. Dr. Landis submitted a report dated December 1, 1998, wherein he related his impression that Appellant sustained a strain/sprain type injury to the lower back in a work-related incident. His report also referenced an October 23, 1998, MRI of Appellant's lumbar...