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IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

DEWAYNE ROBERTS,

Claimant Below, Petitioner

vs.) No. 22-ICA-51 (JCN: 2020024252)

(BOR: 2057900)

DANIEL WATSON MASONRY, LLC,

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Dewayne Roberts appeals the July 25, 2022, order of the Workers’ 

Compensation Board of Review (“Board”). Respondent Daniel Watson Masonry, LLC 

filed a timely response.1 Petitioner did not file a reply brief. The issue on appeal is whether 

the Board erred in affirming the January 13, 2022, order of the Workers Compensation 

Office of Judges (“OOJ”) which affirmed the claim administrator’s August 12, 2020, order 

holding the claim compensable for lumbar sprain, but finding that Mr. Roberts’ preexisting 

chronic back pain, lumbago, sciatica, spinal stenosis, and any/all degenerative conditions 

associated with chronic back pain were not compensable.2

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-

11-4 (2022). After considering the parties’ briefs, the record on appeal, and the applicable 

law, this Court finds no substantial question of law and no prejudicial error. For these 

1 Petitioner is represented by Wendle D. Cook, Esq. Respondent is represented by 

Jeffrey B. Brannon, Esq.

2 Mr. Roberts’ brief alleges only that the OOJ erred in affirming the claim 

administrator’s order and makes no allegations of error concerning the Board or its order 

of affirmance. Mr. Roberts’ brief is also not in compliance with the requirements of West 

Virginia Rule of Appellate Procedure 10(c) pertaining to organization of the brief and 

citation to the appendix record. The Supreme Court of Appeals of West Virginia has 

observed that Rule 10 is designed to “help lawyers file clear, concise, and organized 

briefs.” Metro Tristate, Inc. v. Pub. Serv. Comm’n of W. Va., 245 W. Va. 495, 502, 859 

S.E.2d 438, 445 (2021). The Court will liberally construe briefs in determining issues 

presented for review pursuant to State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 

621 (1996), however counsel is reminded that “a lawyer has a duty to plead and prove his 

case in accordance with established court rules.” State, Dep’t of Health v. Robert Morris 

N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833 (1995).

FILED

November 18, 2022

EDYTHE NASH GAISER, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
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reasons, a memorandum decision affirming the lower tribunal’s order is appropriate under 

Rule 21 of the Rules of Appellate Procedure.

Mr. Roberts, a stone mason, alleges he hurt his lower back, right hip, and right leg 

on November 21, 2019, while carrying a bag of mortar weighing around 75-100 pounds 

over his shoulder, as he was working for Daniel Watson Masonry laying stone at a job site 

in Martinsburg, West Virginia. A load of large boulders was on the ground where he was 

working. Near the end of Mr. Roberts’ shift, as he stepped on one of the boulders, it rotated, 

causing him to slip and twist his back. He experienced immediate pain and had difficulty 

using his right leg. He was unable to drive that evening, so a co-worker drove him to his 

home in Madison, West Virginia.

The next day Mr. Roberts presented at Boone Memorial Hospital’s emergency 

department and reported acute pain in his right lower back going down his right leg and 

into his knee. He stated he had been having the same symptoms for the past four weeks, 

and that he had been at the same ER two weeks prior and had x-rays and was given 

corticosteroids, but that his symptoms had not improved. Mr. Roberts reported that he lifts 

heavy objects as part of his job and has chronic back problems, which had been much worse 

in the past three weeks. He had continued to work but was having difficulty doing his job. 

He described his pain as throbbing and an eight out of ten on the pain scale. He did not 

mention the injury of November 21, 2019. CT scans were performed, and he was diagnosed 

with lumbago with sciatica on the right side and spinal stenosis in the lumbosacral region 

and given a referral to neurology and for an MRI. Mr. Roberts was ordered not to return to 

work for three weeks, or until December 16, 2019. 

On the physician portion of the workers’ compensation application form, Mr. 

Roberts’ physician indicated that Mr. Roberts sustained an occupational injury to his back, 

specifically lumbago, sciatica, and spinal stenosis, and that he aggravated a prior injury. 

Mr. Roberts underwent an MRI on December 5, 2019, and was seen by a neurosurgeon 

who observed that he was suffering from right sided radiculopathy subsequent to disc 

bulging and disc herniation in his lumbar spine. Mr. Roberts received a transforaminal 

epidural steroid injection on January 3, 2020, to treat those issues.3

On August 12, 2020, the claim administrator issued an order approving Mr. Roberts’

application for benefits. The claim was held compensable for a lumbar sprain and Mr. 

Roberts was granted temporary total disability (“TTD”) benefits for November 22, 2019,

to December 15, 2019, the dates that Mr. Roberts was ordered to remain off work by the 

ER physician. Mr. Roberts protested this order on the grounds that it did not include 

additional diagnoses and treatments he received, and also that his TTD benefits should 

have been extended. 

3 Mr. Roberts’ brief also alleges that he had surgery to repair his herniated disc, but 

no corroborating documents are included in his appendix record.
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A hearing was held before the OOJ on November 30, 2020. Mr. Roberts testified at 

the hearing that before the November 21, 2019, injury he did not have prior issues with his 

back other than some aches and pains and had never received medical treatment prior to 

those treatments related to this injury. An Age of Injury Analysis of Mr. Roberts’

December 5, 2019, MRI of the lumbar spine was prepared by Kenneth Fortgang, M.D., a 

board-certified radiologist, and submitted into the record. Dr. Fortgang’s report concluded 

that the MRI showed certain lumbar disc herniation, protrusion, and bulging, with 

desiccation, spondylosis, and facet arthropathic changes, which are all clear markers for 

chronicity. The findings were all considered chronic, and no acute abnormalities were 

identified. The OOJ affirmed the claim administrator’s order on the grounds that while the 

lumbar sprain was a compensable condition, the chronic back pain, lumbago, sciatica, and 

spinal stenosis were degenerative conditions that preexisted the occupational injury of 

November 21, 2019. The OOJ noted that any aggravation of a preexisting condition is not 

compensable pursuant to Gill v. City of Charleston, 236 W. Va. 737, 783 S.E.2d 857 

(2016). The Gill Court 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 syl. pt. 3. The OOJ found that, based on a preponderance of the evidence, it is more 

likely than not that Mr. Roberts did not sustain any discrete new injury other than a lumbar 

sprain on November 21, 2019, and that he did not present evidence of continued TTD for 

the compensable sprain beyond December 15, 2019. The Board affirmed the OOJ’s

decision and Mr. Roberts appeals herein.

The standard of review applicable to this Court’s consideration of workers’ 

compensation appeals has been set out under West Virginia Code § 23-5-12a(b) (2022), 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;
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(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.

On appeal, Mr. Roberts argues that the OOJ’s decision was clearly wrong and 

should be reversed because the uncontested and uncontradicted evidence shows that he

suffered a new and discrete injury when he sustained a herniated disc. Mr. Roberts argues 

that because he had never been diagnosed with or experienced the symptoms of a herniated 

disc before, it was a new injury.

However, upon review, this Court finds no error or abuse of discretion in the Board’s 

affirmance of the January 13, 2022, decision of the OOJ. Medical records were submitted 

which indicated that Mr. Roberts had a history of chronic back pain which was much worse 

in the three weeks prior to the November 21, 2019, incident. Medical records indicate that 

he sought treatment just a month prior to the November 21, 2019, incident for substantially 

similar symptoms and was prescribed corticosteroids. When Mr. Roberts presented for 

treatment on November 22, 2019, he did not mention the November 21, 2019, incident. 

His physician, on the workers’ compensation report of injury, noted that Mr. Roberts had 

preexisting back problems and that this injury had aggravated those issues. The MRI taken 

on December 5, 2019, showed no acute injuries but only chronic issues, including the disc 

herniation, disc protrusion, and mild disc bulging. That finding was supported by Dr. 

Fortgang’s age of injury analysis, which Mr. Roberts did not refute. Based on the 

foregoing, we find that Mr. Roberts has failed to demonstrate that the Board was clearly 

wrong in its affirmance of the OOJ’s January 13, 2022, decision to affirm the August 12, 

2020, order of the claim administrator.4

Accordingly, we affirm.

Affirmed.

ISSUED: November 18, 2022

4 Although the OOJ’s decision did not include an explicit analysis under Moore v. 

ICG Tygart Valley, Inc., No. 20-0028, -- W. Va. --, -- S.E.2d --, 2022 WL 1262269 (W. 

Va. Apr. 28, 2022), the record is clear that Mr. Roberts’ pre-existing condition was not 

asymptomatic before the November 21, 2019 incident, particularly in light of the fact that 

he complained of increased lower back pain and sought and received treatment within a 

month of the incident at issue. 
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CONCURRED IN BY:

Chief Judge Daniel W. Greear

Judge Thomas E. Scarr

Judge Charles O. Lorensen