Fred Kennedy v. Harman Branch Mining, Inc.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FRED KENNEDY, FILED
Claimant Below, Petitioner April 29, 2025
ASHLEY N. DEEM, CHIEF DEPUTY CLERK

v.) No. 24-ICA-366 (JCN: 2024006020) INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

HARMAN BRANCH MINING, INC.,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Fred Kennedy appeals the August 14, 2024, order of the Workers’
Compensation Board of Review (“Board”). Respondent Harman Branch Mining, Inc.
(“HBM”) filed a response.1 Mr. Kennedy did not reply. The issue on appeal is whether the
Board erred in affirming the claim administrator’s order, which rejected the claim.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). 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 for
further proceedings consistent with this decision.

On September 25, 2023, while employed by HBM, Mr. Kennedy alleges that he
injured his back while shoveling rock and mud. Mr. Kennedy was seen at Welch
Community Hospital on the same day for his lower back. Mr. Kennedy reported similar
episodes of low back pain in the past. A CT scan of Mr. Kennedy’s low back revealed
degeneration of the disc with associated narrowing, a broad-based disc bulge, anterior
vertebral endplate spurs, and facet joint arthropathy at L3-L4; a broad-based disc bulge
protrusion, ligamentum flavum hypertrophy, facet joint arthropathy, and spinal canal and
bilateral foramina stenosis at L4-L5; and facet joint arthropathy at L5-S1. Mr. Kennedy
was evaluated by James Salyers, M.D., who diagnosed him with severe degenerative disc
disease of the lumbar spine and an exacerbation of chronic lower back pain. Mr. Kennedy
was taken off work through October 2, 2023.

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Mr. Kennedy is represented by Reginald D. Henry, Esq., and Lori J. Withrow, Esq.
HBM is represented by Steven K. Wellman, Esq., and James W. Heslep, Esq.

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A Brickstreet First Report of Injury form dated September 25, 2023, indicates that
Mr. Kennedy reported that he developed low back pain while shoveling at work. A West
Virginia Office of Miner’s Health, Safety and Training Mine Accident and Injury Report
dated September 26, 2023, indicates that Mr. Kennedy developed pain in his lower back
while performing his regular work activity of shoveling.

Mr. Kennedy filed an Employees’ and Physicians’ Report of Occupational Injury or
Disease dated October 2, 2023. Mr. Kennedy reported that his back went out while
shoveling rock and mud. The physician’s section of the claim application was completed
by a medical provider at Welch Community Hospital on October 2, 2023. The provider
indicated that Mr. Kennedy had sustained an occupational injury resulting in back and left
leg pain, but the provider was unable to determine whether the September 25, 2023, work
incident had aggravated a prior injury or disease.2

On October 2, 2023, Mr. Kennedy was seen by David Eells, M.D., for an
occupational injury to his lower back. Mr. Kennedy reported an acute injury to his right
lower back while shoveling at work, occurring approximately one week prior. Mr. Kennedy
further reported that he had been off work since the day of the injury. Mr. Kennedy
complained of pain radiating down his left leg. Dr. Eells diagnosed Mr. Kennedy with back
pain and kept Mr. Kennedy off work through October 17, 2023. On October 16, 2023, Mr.
Kennedy followed up with Dr. Eells. Mr. Kennedy reported that he had experienced
episodes of back pain in the past; however, this was the worst pain he had experienced. Mr.
Kennedy reported radiating pain into both of his thighs. Dr. Eells diagnosed Mr. Kennedy
with back pain and kept Mr. Kennedy off work through October 24, 2023. On October 30,
2023, Dr. Eells recommended an MRI of the lumbar spine and possible physical therapy.
He also indicated that Mr. Kennedy was to remain off work through November 7, 2023.

Dr. Eells authored an Attending Physician’s Statement of Disability dated
November 7, 2023. Dr. Eells diagnosed Mr. Kennedy with dorsalgia related to a lifting
accident at work and he indicated that Mr. Kennedy had been unable to work since
September 25, 2023. On November 17, 2023, the claim administrator issued an order
rejecting the claim on the basis that the injury did not occur in the course of and resulting
from Mr. Kennedy’s employment. Mr. Kennedy protested this order.

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Prior to the instant claim, Mr. Kennedy was treated for lumbar strain/ pain in the
lower back in 2010 and 2015. Mr. Kennedy was diagnosed with lumbar spine degenerative
joint disease in 2015. Mr. Kennedy also filed a previous claim for an occupational injury
to his lumbar spine on October 14, 2021. The claim was rejected by claim administrator
order dated November 4, 2021. It is unclear from the record whether Mr. Kennedy
protested this order.
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On January 4, 2024, Mr. Kennedy was seen by Dr. Eells. Mr. Kennedy reported that
he continued to experience back pain radiating down his left lower extremity, and he
remained unable to work. Dr. Eells opined that a lumbar MRI was necessary to further
evaluate Mr. Kennedy’s condition. Mr. Kennedy reported that his medication did not seem
to be working. Dr. Eells’ diagnosis was back pain. A Disability Continuing Claim form,
signed by Dr. Eells on January 8, 2024, indicated that Mr. Kennedy was totally disabled
due to a diagnosis of back pain. Dr. Eells further indicated that Mr. Kennedy would be
unable to return to work for the next four to six months.

Mr. Kennedy was deposed on February 7, 2024, and he testified that on September
25, 2023, he developed severe low back pain while shoveling and moving rock and mud
onto a belt line at work. Mr. Kennedy described the pain as electricity running through his
back, his privates, and his legs. Mr. Kennedy testified that when he was injured, he fell to
the ground, was unable to get up, and barely able to ride out of the mine. Mr. Kennedy
stated that he had experienced low back pain prior to the September 25, 2023, work
incident, but the symptoms he experienced on that day were more severe. Specifically, Mr.
Kennedy explained that previously he had never experienced an electric shock sensation
like he did after this injury. Mr. Kennedy testified that Dr. Eells had not released him to
return to work, and further, he did not believe he was capable of returning to his pre-injury
employment.

On August 14, 2024, the Board affirmed the claim administrator’s order rejecting
the claim. The Board found that Mr. Kennedy failed to establish that he suffered a discrete
new injury in the course of and resulting from his employment. Mr. Kennedy now appeals
the Board’s order.

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

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(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

Syl. Pt. 2, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024).

Mr. Kennedy argues that the preponderance of the evidence establishes that he
sustained a back injury course of and resulting from his employment. Further, Mr. Kennedy
argues that simply because he has previously experienced back pain, he is not precluded
from establishing a workers’ compensation claim after sustaining a new injury. Finally,
Mr. Kennedy argues that the nature of the symptoms from this work injury was different
from the prior back issues, and it is unrefuted that he was completing his job duties until,
suddenly, he was on the ground and could not walk.

Three elements must coexist in workers’ compensation cases to establish
compensability: (1) a personal injury (2) received in the course of employment and (3)
resulting from that employment. Barnett v. State Workmen’s Comp. Comm’r, 153 W. Va.
796, 172 S.E.2d 698 (1970); Sansom v. Workers’ Comp. Comm’r, 176 W. Va. 545, 346
S.E.2d 63 (1986).

The Supreme Court of Appeals of West Virginia held, in Gill v. City of Charleston,
236 W. Va. 737, 783 S.E.2d 857 (2016):

A noncompensable preexisting injury may not be added as a compensable
component of a claim for workers’ compensation medical benefits merely
because it may have been aggravated by a compensable injury. To the extent
that the aggravation of a noncompensable preexisting injury results in a
[discrete] new injury, that new injury may be found compensable.

Id. at 738, 783 S.E.2d at 858, syl. pt. 3

The Supreme Court of Appeals has repeatedly held that pain is a symptom, not a
diagnosis, and cannot be added to a claim. See 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 a symptom, not a diagnosis, and therefore cannot be added to a claim).

Here, the Board determined that Mr. Kennedy failed to establish that he suffered a
discrete new injury. The Board noted that Dr. Salyers diagnosed Mr. Kennedy with an
exacerbation of chronic lower back pain and severe degenerative joint disease of the lumbar
spine, neither of which are appropriate diagnoses for an acute lumbar injury. Further, the
Board found that the objective diagnostic imaging and medical evidence of record
establishes that Mr. Kennedy’s degenerative joint disease was diagnosed and symptomatic
prior to the work incident of September 25, 2023.

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Upon review, we conclude that the Board was clearly wrong in finding that Mr.
Kennedy failed to establish that he suffered a compensable injury. We note that Mr.
Kennedy’s statements regarding his occupational injury and his symptoms prior to and
following the injury are unrefuted and, further, the Board did not question Mr. Kennedy’s
credibility. Furthermore, while Mr. Kennedy’s medical records do not contain an acute
injury diagnosis, the overwhelming evidence indicates he sustained a definite, isolated and
fortuitous injury in the course of and as a result of his employment.

In summary, we find that Mr. Kennedy’s statements and the medical evidence
establish that he suffered a discrete new injury on September 25, 2023, in the course of and
resulting from his employment with HBM. The Board is directed to remand this claim to
the claim administrator for it to accept evidence and issue an order regarding an appropriate
compensable condition(s) and whether Mr. Kennedy is entitled to temporary total disability
benefits.

Accordingly, we reverse the Board’s August 14, 2024, order, and remand to the
Board for further proceedings consistent with this order.

Reversed and Remanded.

ISSUED: April 29, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

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