Pepsi-Cola Metropolitan Bottling Company, Inc. v. Mohamed A. Gohar

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
PEPSI-COLA METROPOLITAN BOTTLING COMPANY, INC., September 26, 2023
Employer Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 23-ICA-245 (JCN: 2022018259)

MOHAMED A. GOHAR,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Pepsi-Cola Metropolitan Bottling Company, Inc., (“Pepsi”) appeals the
May 8, 2023, order of the Workers’ Compensation Board of Review (“Board”).
Respondent Mohamed A. Gohar filed a response. 1 Pepsi did not file a reply. The issue on
appeal is whether the Board erred in reversing the claim administrator’s order, which
rejected the claim.

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 no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

On March 7, 2022, Mr. Gohar injured his left shoulder, arm, and left side of his
neck, while employed as a merchandiser by Pepsi. On March 21, 2022, Mr. Gohar
completed an Employees’ and Physicians’ Report of Occupational Injury. Mr. Gohar
reported that he was lifting and stacking empty pallets at a grocery store when he sustained
an injury to his left shoulder, left arm, and left side of the neck. Brandy Huffman, PA-C,
completed the physician’s section of the form and indicated that Mr. Gohar was first treated
for the occupational injury on March 9, 2022. Ms. Huffman diagnosed him with a cervical
disc disorder resulting in severe radicular pain and symptoms which occurred on March 7,
2022. Suspecting a possible disc herniation, Ms. Huffman took Mr. Gohar off work until
April 15, 2022. An x-ray report dated March 9, 2022, indicated that Mr. Gohar had a
clinical history of neck pain, upper extremity pain, and numbness for a few months. Ms.
Huffman indicated that Mr. Gohar had been “on NSAIDs for months.” She opined that the

1
Pepsi is represented by Jeffrey B. Brannon, Esq. Mr. Gohar is represented by
Gregory S. Prudich, Esq.

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imaging revealed no displaced or depressed fractures, and the discs were of normal
thickness, but a few osteophytes were noted and were most pronounced at C6-C7.

Mr. Gohar returned to see Ms. Huffman on March 14, 2022, and March 22, 2022.
Ms. Huffman diagnosed Mr. Gohar with cervicalgia with radicular symptoms and noted
his limited cervical and left arm range of motion. Ms. Huffman indicated that a left shoulder
x-ray revealed tendinitis. Ms. Huffman stated that Mr. Gohar had some left shoulder pain
for months before the event on March 7, 2022, but the pain was not severe until after the
injury.

On March 25, 2022, Mr. Gohar underwent an MRI of his cervical spine, revealing
a straightening of cervical lordosis, which could be positional or from muscle spasm, and
bulging disc at C4-C5, C5-C6, and C6-C7. Between March 25, 2022, and June 30, 2022,
Mr. Gohar underwent physical therapy.

The claim administrator issued an order dated April 4, 2022, rejecting the claim on
the basis that it determined Mr. Gohar did not suffer a compensable work injury. No basis
for this determination was provided. Mr. Gohar protested the denial of his claim. Mr. Gohar
was seen by Ms. Huffman on April 27, 2022, and May 18, 2022. Ms. Huffman noted that
he had not returned to work. Ms. Huffman also noted that Mr. Gohar was seen by a
neurosurgeon and was not a candidate for surgery.

On June 16, 2022, Mr. Gohar was deposed. He testified that on March 7, 2022, he
was stacking pallets, weighing thirty to forty pounds, when he felt a hot rush come from
behind his left ear through his left side, left shoulder, and upper arm. Mr. Gohar stated that
he completed his shift because he believed that he had just pulled a muscle. He testified
that the next day he felt numbness from his left elbow to his fingers with pain under his
armpit on the left side going through the front of his shoulder to the back. Mr. Gohar denied
experiencing any similar symptoms previously. When asked to explain a medical report
that indicated he had suffered similar issues for months prior to the injury, Mr. Gohar stated
that Ms. Huffman must have misunderstood what he told her. Mr. Gohar testified that he
did not recall telling Ms. Huffman that his symptoms began months prior and denied taking
NSAIDs for months.

In a deposition taken on November 29, 2022, Ms. Huffman testified that her medical
records showed that Mr. Gohar was seen for neck and shoulder pain in February and March
of 2019. Medical records, she noted, showed that Mr. Gohar reported episodes of shoulder
or neck pain through October 2021. However, he was not seen again until March 2022.
Ms. Huffman testified that the “hot rush” Mr. Gohar said he felt in his left shoulder/arm on
the date of the injury suggested to her that he suffered an acute injury. On July 12, 2022,
Jonathan Luchs, M.D., performed an age of injury analysis and concluded that the MRI of
the cervical spine revealed chronic degenerative disc disease and other chronic conditions.

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On May 8, 2023, the Board issued an order reversing the claim administrator’s order
which rejected this claim. The Board found that Mr. Gohar had established that he
sustained a discrete new injury rather than an aggravation of his preexisting injuries. Pepsi
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
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

Duff v. Kanawha Cnty. Comm’n, 247 W. Va. 550, 555, 882 S.E.2d 916, 921 (Ct. App.
2022).

On appeal, Pepsi argues that the evidence establishes that Mr. Gohar was
symptomatic for several months prior to the injury and complained of similar symptoms
after the alleged injury. Pepsi further argues that Mr. Gohar did not suffer a discrete new
injury as required under Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857 (2016);
but instead, that his symptoms are related to a preexisting condition. We disagree.

In Gill, the Supreme Court of Appeals of West Virginia held:

“[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.

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In Moore v. ICG Tygart Valley, LLC, 247 W. Va. 292, 879 S.E.2d 779 (2022), the
Supreme Court clarified its position, holding, “[a] claimant’s disability will be presumed
to have resulted from the compensable injury if: (1) before the injury, the claimant’s
preexisting disease or condition was asymptomatic, and (2) following the injury, the
symptoms of the disabling disease or condition appeared and continuously manifested
themselves afterwards.” Moore at __, 879 S.E.2d at 781, syl. pt. 5.

Here, the Board acknowledged evidence of prior symptoms and it performed an
analysis under Gill, Moore, and Blackhawk Mining, LLC v. Argabright, No. 22-ICA-262,
__ W. Va. __, __, __S.E.2d __, __, 2023 WL 3167476 (Ct. App. May 1, 2023). As a result
of its analysis, the Board determined that Mr. Gohar experienced a discrete new injury and
“new symptoms which appeared and continuously manifested” as a result of the work
injury on March 7, 2022. A causal relationship was found between Mr. Gohar’s activity of
moving pallets at work and the injury. However, the Board remanded the claim to the claim
administrator for additional development regarding the compensable diagnosis in the
claim.

Upon review, we conclude that the Board was not clearly wrong in finding that Mr.
Gohar suffered a discrete new injury. Further, the Board was not clearly wrong in holding
the claim compensable and remanding the claim back to the claim administrator for a
determination of compensable conditions and temporary total disability.

Our review is deferential to the Board. West Virginia Code § 23-5-12a(b) sets forth
the same standard of review as was previously required of the Board when it reviewed
decisions by the Office of Judges per West Virginia Code § 23-5-12 before the 2021
statutory amendments became effective. In considering West Virginia Code § 23-5-12, the
Supreme Court of Appeals of West Virginia stated that the Board was required to accord
deference to the decisions by the Office of Judges. See Conley v. Workers’ Comp. Div.,
199 W. Va. 196, 203, 483 S.E.2d 542, 549 (1997).

Further, we defer to the Board’s determinations of credibility. See Martin v.
Randolph Cnty. Bd. of Educ., 195 W. Va. 297, 306, 465 S.E.2d 399, 408 (1995) (“We
cannot overlook the role that credibility places in factual determinations, a matter reserved
exclusively for the trier of fact. We must defer to the ALJ’s credibility determinations and
inferences from the evidence . . . .”).

Accordingly, we affirm the Board’s May 8, 2023, order.

Affirmed.

ISSUED: September 26, 2023

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CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen

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