Christina West v. Hybrid Fleet, Inc.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
CHRISTINA WEST, February 15, 2023
Claimant Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS

vs.) No. 22-ICA-128 (BOR Appeal No. 2057934) OF WEST VIRGINIA

(JCN: 2021015622)

HYBRID FLEET, INC.,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Christina West appeals the August 26, 2022, order of the Workers’
Compensation Board of Review (“Board”). Respondent Hybrid Fleet, Inc. filed a timely
response. 1 Petitioner did not file a reply. The issue on appeal is whether the Board erred in
reversing the January 28, 2022, order of the Workers’ Compensation Office of Judges
(“OOJ”) which reversed the claim administrator’s decision and held the claim
compensable.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds that there is error in the Board’s decision but no substantial
question of law. This case satisfies the “limited circumstances” requirement of Rule 21(d)
of the Rules of Appellate Procedure for reversal in a memorandum decision. For the
reasons set forth below, the Board’s decision is reversed, and this case is remanded to the
Board for further proceedings consistent with this decision.

Ms. West was a delivery truck driver for Hybrid Fleet, a subcontractor for FedEx,
on December 3, 2020, when she was injured while working. She was in the back of her
delivery truck when a heavy box fell off one of the shelves. When Ms. West began to pick
up the box, she tripped and fell, landing directly on the corner of the box, driving it into
her abdomen. As this happened, she felt an immediate burning sensation in her abdomen.
Ms. West states that she finished her shift that day because Hybrid Fleet had a policy
against abandoning the delivery route without completing it, and then she sought medical

Petitioner is represented by J. Thomas Greene, Jr., Esq. and T. Colin Greene, Esq.
1

Respondent is represented by David P. Cook, Jr., Esq.

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attention early the following morning at Stonewall Jackson Memorial Hospital’s
emergency department.

At the hospital, Ms. West reported abdominal pain and that she had “ripped” her
hernia at work the day prior. A CT scan without contrast was performed and found no acute
process in the abdomen or pelvis. Ms. West was diagnosed with a ventral hernia and
referred to general surgeon, Jeffrey Madden, M.D., with whom she had a prior relationship.
Dr. Madden had performed surgery on Ms. West on February 14, 2019, to repair a small
recurrent hernia that developed in 2017 during pregnancy. Dr. Madden used mesh to
perform the 2019 repair, and afterwards Ms. West was released to return to work, full duty. 2
After the December 3, 2020, injury, Dr. Madden’s earliest available appointment date was
January 27, 2021, but Ms. West planned to see him earlier if he had a cancellation.

In the meantime, Ms. West saw her primary care physician, Ruthanne Watkins,
D.O., on December 7, 2020. Dr. Watkins noted that Ms. West reported post-injury
symptoms of diarrhea and periumbilical abdominal pain radiating into her back. Dr.
Watkins examined Ms. West, noted “no obvious hernia,” and assessed abdominal pain,
diarrhea, and ventral hernia. She took Ms. West off work until she could be seen by a
surgeon and restricted her from all lifting.

An employees’ and physicians’ report of injury was completed stating that Ms. West
suffered an occupational injury on December 3, 2020, with a diagnosis of ventral hernia
which aggravated a prior hernia repair. An employers’ report of injury was completed on
December 7, 2020, which described a different injury than Ms. West reported to her
medical providers. It stated that Ms. West had “ripped open a hernia while lifting a heavy
box on December 3, 2020.”

On January 8, 2021, the claim administrator denied Ms. West’s application for
benefits on the basis that medical evidence did not support her claim that an acute physical
injury had occurred and it appeared she had a preexisting condition that caused her current
condition. Ms. West protested that decision.

Ms. West returned to Dr. Watkins on January 19, 2021, complaining of abdominal
pain. Upon examination, Dr. Watkins found tenderness at the mid-abdomen and a small,
soft bulge at just left of the umbilicus, but “could not appreciate true hernia.” Ms. West
saw her surgeon, Dr. Madden, on January 27, 2021, and reported she had fallen and landed

2
According to the record, Ms. West’s abdomen was asymptomatic prior to the
December 3, 2020, fall. Her last documented abdominal treatment was on March 13, 2019,
more than a year before the December 3, 2020, injury and on that date, her abdomen was
described as nontender and without a hernia. Ms. West also testified that her abdomen was
asymptomatic prior to December 3, 2020.

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on a box at work and had abdominal pain since that date. Dr. Madden noted that her
abdomen was not distended but he found tenderness in her periumbilical region and
diagnosed abdominal pain. He ordered a CT with contrast and asked her to return after it
was completed for a follow-up visit.

Ms. West underwent the CT with contrast on March 9, 2021. It was interpreted to
show a mild eventration of the midline abdominal wall at the umbilicus, but no definite
discrete hernia. Dr. Madden saw Ms. West on March 10, 2021, and agreed there was a mild
eventration, but he did not find it was significant. His continued diagnosis was “abdominal
pain, unspecified abdominal location.” He made dietary recommendations and advised her
to see a gastroenterologist if her symptoms persisted or return to his care if her symptoms
worsened.

Ms. West was deposed on March 29, 2021. She recounted the history of the incident
that led to her injury on December 3, 2020, and the medical care she received thereafter.
She testified that she was waiting to be seen by a gastroenterologist for ongoing issues she
had with bloating and swelling whenever she ate, and that she had not been released yet by
Dr. Madden to return to work.

By order dated January 28, 2022, the OOJ reversed the claim administrator’s order,
and ordered the claim be held compensable for abdominal pain, unspecified abdominal
location. The OOJ found that the evidence indicated that Ms. West more likely than not
did fall in her truck, hit her abdomen, and sustain an injury, and the employer did not rebut
that evidence. However, the evidence did not support the contention that Ms. West suffered
a hernia, or that she had a recurrent hernia. The OOJ found that, at most, she suffered some
abdominal pain as a result of the injury. The OOJ acknowledged that typically in workers’
compensation cases in West Virginia, pain is not considered to be a compensable diagnosis.
However, in the present case, the hernia diagnosis was eliminated by Dr. Madden’s medical
reports and the CT scans of December 4, 2020, and March 9, 2021. Dr. Madden
consistently diagnosed Ms. West with abdominal pain, unspecified abdominal location, in
his reports of January 27, 2021, and March 10, 2021, and the OOJ found that his diagnosis
was much more reliable than that of Dr. Watkins or the ER physician who diagnosed
ventral hernia on December 4, 2020. Consequently, the OOJ found that the only possible
diagnosis for Ms. West’s workplace injury was abdominal pain, unspecified abdominal
location, and as such, it was held compensable. Hybrid Fleet appealed this decision.

By order dated August 26, 2022, the Board reversed the decision of the OOJ. In its
order, the Board noted that Ms. West had been diagnosed with abdominal pain prior to the
date of injury in this claim, and described her history of abdominal pain in 2017 and 2018
related to her recurrent umbilical hernia. The Board then observed that the Supreme Court
of Appeals of West Virginia has previously held that pain is a symptom, not a diagnosis,
thus the Board found that the claim cannot be held compensable for abdominal pain. The
Board’s order concluded that although Ms. West may have tripped in her delivery truck

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and hit the corner of a box with her stomach, “the evidence fails to identify a diagnosis
appropriate for compensability.” The Board therefore concluded that Ms. West failed to
establish that she sustained an injury in the course of and resulting from her employment
on December 3, 2020. It is from the Board’s order that Ms. West now appeals.

Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:

The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:
(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

Duff v. Kanawha Cnty. Comm’n, No. 22-ICA-10, __ W. Va. __, __, __ S.E.2d __, __, 2022
WL 17546598, at *4 (Ct. App. Dec. 9, 2022).

On appeal, Ms. West argues that the OOJ’s decision was appropriate from both
medical and legal perspectives. After reviewing and weighing the evidence, the OOJ found
that Ms. West’s description of her injury was unrebutted by her employer, 3 that she
received appropriate medical attention as a result of her injury, and that she was
consistently diagnosed with abdominal pain by her surgeon although the hernia diagnosis
was eventually ruled out. Moreover, even the Board appears to concede the mechanism of
injury in its order where it states that Ms. West, “may indeed have tripped while she was
in her delivery truck and hit the corner of a box with her stomach[.]” Ms. West argues that
her burden to establish compensability is to put forth sufficient evidence to make a
reasonable person conclude that the injury occurred while performing the duties of

3
On appeal, Hybrid Fleet argues that the evidence shows that Ms. West did not
suffer an acute physical injury, citing allegedly conflicting statements made by Ms. West
in text messages sent on December 4, 2020, to multiple co-workers regarding her injury.
The OOJ, as the factfinder below, was not persuaded by this evidence and concluded that
the mechanism of injury was unrebutted by Hybrid Fleet.

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employment. Here, Ms. West asserts that the OOJ correctly found that she provided
sufficient evidence to conclude that she sustained an injury that occurred as a result of her
work duties, finding that the evidence indicated that Ms. West more likely than not fell in
her truck and hit her abdomen on a box. The OOJ found that the diagnosis that resulted
from this isolated, fortuitous event was abdominal pain because the ventral hernia diagnosis
was eventually ruled out. Ms. West further argues that the Board improperly used the
remaining diagnosis of abdominal pain as a technicality to deny her claim. Although pain
is typically found to be a symptom, not a diagnosis, in this case abdominal pain is the sole
remaining diagnosis that Ms. West’s treating surgeon made as a result of her unrebutted
occupational injury. Ms. West asserts that the Board’s reversal solely on that basis is
contrary to the law, arguing that “[i]t is the policy of [the Workers’ Compensation law] to
prohibit the denial of just claims of injured … workers … on technicalities.” See W. Va.
Code § 23-5-13a (2022). In response, Hybrid Fleet argues in favor of the Board’s rulings,
including the determination that pain is not a compensable diagnosis, and asks this Court
to affirm the order issued by the Board.

Upon review, we find that the Board clearly erred in reversing the OOJ’s decision.
Pursuant to West Virginia Code § 23-4-1 (2021), employees who receive injuries in the
course of and as a result of their covered employment are entitled to benefits. See also, Syl.
Pt. 1, Barnett v. State Workmen’s Comp. Comm’r, 153 W. Va. 796, 796, 172 S.E.2d 698,
699 (1970). Ms. West established by a preponderance of the evidence that she suffered a
personal injury in the course of and as a result of her employment when she fell on the box
in the back of her truck. The Board’s finding to the contrary was based solely on an errant
diagnosis code and constitutes a denial based on a technicality, a clear contravention of
West Virginia Code § 23-5-13a. Moreover, it is an unreasonable result.

The record shows that Ms. West sought appropriate medical treatment to evaluate
the scope and degree of her work-related injury. It would be unjust to declare that Ms. West
established by a preponderance of the evidence that she suffered a work-related injury, but
that she is not entitled to the benefit of a medical evaluation to determine the extent of her
injuries. Because the initial diagnosis of ventral hernia was eventually ruled out, the claim
should have been remanded for a determination of an acceptable compensable condition
arising from Ms. West’s injury that was related to her abdominal pain, whether that might
be the “mild eventration of the midline abdominal wall at the umbilicus” that was seen on
the March 9, 2021, CT scan, or a simple contusion, or something else.

Accordingly, we conclude that based on the unrebutted evidence that Ms. West
received an injury in the course of and as a result of her employment, her claim is
compensable. Therefore, we reverse the Board’s August 26, 2022, order and remand this
case to the Board to take evidence from the parties regarding the appropriate compensable
condition.

Reversed and Remanded.

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ISSUED: February 15, 2023

CONCURRED IN BY:

Judge Thomas E. Scarr
Judge Charles O. Lorensen

DISSENTING:

Chief Judge Daniel W. Greear

Greear, C.J., dissenting:

The majority decision to remand the matter for the purpose of determining a
compensable diagnosis is unnecessary. Wherefore, I respectfully dissent.

I do so for three reasons that are explicitly clear in this matter. First, the West
Virginia Supreme Court of Appeals has repetitively upheld the denial of compensability
for diagnoses of pain. 1 Pain is a symptom, not a diagnosis, and therefore not compensable.

Second, what the majority suggests on remand has already been attempted in this
matter. Ms. West was initially diagnosed with a hernia. However, after undergoing a CT
scan and a follow-up with Dr. Madden, the diagnosis was ruled out. The absence in the
record of any other diagnosis led the West Virginia Workers’ Compensation Office of
Judges to determine that the best diagnosis is “abdominal pain, unspecified abdominal
location.” Despite the record, which shows an attempt to find a diagnosis has occurred, the
majority decision in this matter would allow petitioner to re-bait the hook and pray a fish
is caught.

Finally, the petitioner failed to meet her burden of proof. The standard of proof in
workers’ compensation claims is by the preponderance of the evidence. In this case, as in
all cases, the burden is placed on the petitioner to prove her case. After review of the record,

1
Whitt v. US Trinity Energy Serv., LLC, No. 20-0732, 2022 WL 577587 (W. Va.
Feb. 25, 2022) (memorandum decision) (finding no specific diagnosis in regard to shoulder
other than pain). See also Harpold v. City of Charleston, No. 18-0730, 2019 WL 1850196,
at *3 (W. Va. Apr. 25, 2019) (memorandum decision) (holding that left knee pain is
symptom, not diagnosis, and therefore cannot be added to claim); Radford v. Panther
Creek Mining, LLC, No. 18-0806, 2019 WL 4415245, at *3 (W. Va. Sep. 13,
2019) (memorandum decision) (holding that neck and shoulder pain cannot be added to
claim as they are symptoms, not diagnoses).

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it is apparent that the Board of Review was not clearly wrong in finding the petitioner did
not meet this standard. The majority decision chips away at that burden by giving petitioner
a “re-do” when petitioner failed to present sufficient evidence to prove her case below.

Wherefore, for the forgoing reasons, I respectfully dissent.

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