Nibert v. Globe Specialty Metals, Inc., 091319 WVSC, 18-0805

Docket Nº:18-0805
Party Name:JERRY NIBERT, Claimant Below, Petitioner v. GLOBE SPECIALTY METALS, INC., Employer Below, Respondent
Judge Panel:CONCURRED IN BY: Chief Justice Elizabeth D. Walker Justice Margaret L. Workman Justice Tim Armstead Justice Evan H. Jenkins Justice John A. Hutchison
Case Date:September 13, 2019
Court:Supreme Court of Appeals of West Virginia

JERRY NIBERT, Claimant Below, Petitioner


GLOBE SPECIALTY METALS, INC., Employer Below, Respondent

No. 18-0805

Supreme Court of Appeals of West Virginia

September 13, 2019

(BOR Appeal No. 2052723) (Claim No. 2016014360)


Petitioner Jerry Nibert, by Reginald D. Henry, his attorney, appeals the decision of the West Virginia Workers' Compensation Board of Review. Globe Specialty Metals, Inc., by Noah A. Barnes and Jeffrey B. Brannon, its attorneys, filed a timely response.

The issue on appeal is additional compensable conditions. The claims administrator denied the addition of lumbar spondylosis without myelopathy and lumbar radiculopathy to the claim on April 17, 2017. The Office of Judges affirmed the decision in its March 12, 2018, Order. The Order was affirmed by the Board of Review on August 20, 2018.

The Court has carefully reviewed the records, written arguments, and appendices contained in the briefs, and the case is mature for consideration. 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. Nibert, a welder, was injured in the course of his employment on November 17, 2015, while pushing a stationary welder. A November 20, 2015, treatment note from Montgomery General Hospital indicates Mr. Nibert was seen for back pain/injury that had been present for two to three weeks. Mr. Nibert reported that the pain radiates into his legs. He was diagnosed with sciatica. The Employees' and Physicians' Report of Injury was completed that day by Jonathan Hess, M.D. He diagnosed lumbosacral strain with radiculopathy. It was indicated that the injury aggravated a prior injury or disease.

A lumbar MRI was performed on December 4, 2015, and showed diffuse disc bulging at L3-4 with flattening of the thecal sac and probable nerve root impingement; diffuse disc bulging at L4-5...

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