STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED JOHN DYE, 

March 30, 2017 Claimant Below, Petitioner RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

vs.) No. 16-0273 (BOR Appeal No. 2050763) 

(Claim No. 2014011698) 

ARCELORMITTAL USA XMB, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner John Dye, by Linda Garrett, his attorney, appeals the decision of the West 

Virginia Workers’ Compensation Board of Review. 

This appeal arises from the Board of Review’s Final Order dated February 19, 2016, in 

which the Board affirmed an August 4, 2015, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 1, 2014, 

decision which denied the addition of L5-S1 disc herniation to the claim. The Court has carefully 

reviewed the records, written arguments, and appendices contained in the briefs, and the case is 

mature for consideration. 

This Court has considered the parties’ briefs and the record on appeal. 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 that the Board of Review’s decision is based upon erroneous 

conclusions of law. This case satisfies the “limited circumstances” requirement of Rule 21(d) of 

the Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an 

opinion. 

Mr. Dye, a mine inspector, was injured on October 10, 2013, while pushing a box. The 

employee’s report of injury indicates he injured his lower back while pushing a metal box the 

day before. The diagnosis was listed as lower back strain and it was indicated that Mr. Dye 

aggravated a prior injury/disease of bulging discs in the lower back. 

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Mr. Dye sustained a prior lower back injury on March 14, 2013, while moving a miner 

cat head. An MRI taken on April 6, 2013, showed an L5-S1 paracentral disc protrusion and 

degenerative disc disease. He was treated for the injury by Jeffrey Greenberg, M.D., who placed 

Mr. Dye on light duty work for a few months while he underwent therapy. He returned to full 

duty work on June 3, 2013. 

Following the October 10, 2013, injury, Mr. Dye began experiencing increased lower 

back pain. An MRI taken on November 11, 2013, revealed a left paracentral disc protrusion at 

L5-S1, markedly impinging on the left lateral recess and descending S1 nerve root. Treatment 

notes from Dr. Greenberg indicate Mr. Dye was seen on November 15, 2013. He was walking 

with a limp and had difficulty sitting for any period of time. Dr. Greenberg recommended a 

lumbar epidural injection and released Mr. Dye to return to light duty. The lumbar injections 

were approved by the claims administrator on November 27, 2013. On December 12, 2013, Dr. 

Greenberg noted that Mr. Dye had a focal disc rupture at L5-S1 and that pain medication was not 

working. He was in intense pain so Dr. Greenberg recommended a microlumbar discectomy and 

referred Mr. Dye to John Orphanos, M.D. On November 27, 2013, the claim was held 

compensable for aggravation of a pre-existing disc protrusion at L5-S1 on the left. 

Dr. Orphanos saw Mr. Dye on January 9, 2014. At that time, he reported severe back pain 

that radiated into the left leg. Dr. Orphanos diagnosed displacement of lumbar intervertebral disc 

and low back and left leg pain likely secondary to the herniated disc. He recommended a 

discectomy with decompression which he performed on March 7, 2014. On May 20, 2014, Mr. 

Dye’s symptoms had improved but he still has back pain. He was referred to physical therapy. 

On April 17, 2014, he requested to return to full duty work and Dr. Orphanos agreed. 

In an addendum report dated March 20, 2014, Joseph Grady, M.D., noted that the 

compensable condition in the claim is lumbar sprain. He stated that he had reviewed Mr. Dye’s 

treatment notes and opined that the L5-S1 disc herniation was a pre-existing condition, as seen 

on the April 6, 2013, MRI, for a previous back injury. Dr. Grady stated Mr. Dye’s symptoms 

increased as a result of the pre-existing condition and opined that he suffered an aggravation of a 

pre-existing disc herniation at L5-S1. Based on his report, the claims administrator denied the 

addition of L5-S1 disc herniation to the claim on October 1, 2014. 

The Office of Judges affirmed the claims administrator’s decision in its August 4, 2015, 

Order. It stated that the claims administrator’s November 27, 2013, compensability Order 

correctly characterized the October 10, 2013, injury as causing an aggravation of a pre-existing 

disc protrusion at L5-S1 on the left. The Office of Judges held that the compensable injury did 

not cause the herniated disc. Mr. Dye was first diagnosed with a herniated L5-S1 disc on April 6, 

2013, months before the October 10, 2013, injury at issue. However, the Office of Judges did 

conclude that aggravations of pre-existing conditions are compensable and found Mr. Dye was 

entitled to treatment due to said aggravations. The Board of Review adopted the findings of fact 

and conclusions of law of the Office of Judges and affirmed its Order on February 19, 2016. 

After review, we have determined that this case should be remanded to the Office of 

Judges for consideration of this Court’s recent decision in Gill v. City of Charleston, 236 W.Va. 

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737, 783 S.E.2d 857 (2016). In the rejection of Mr. Gill’s request to add diagnoses resulting from 

his prior back injuries to his claim, we held that: 

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 discreet new injury, 

that new injury may be found compensable. 

Id. at 738, 783 S.E.2d at 858, syl. pt. 3. As this case deals with an aggravation of Mr. Dye’s preexisting injury, it must be determined if Gill applies. 

For the foregoing reasons, we find that the decision of the Board of Review is based upon 

erroneous conclusions of law. Therefore, the decision of the Board of Review is reversed and 

remanded with instructions to consider the case in light of this Court’s decision in Gill. 

Reversed and Remanded. 

ISSUED: March 30, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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