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 STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

BILLIE L. WHITT,

Claimant Below, Petitioner

vs.) No. 20-0732 (BOR Appeal No. 2055265)

(Claim No. 2019024513)

 

US TRINITY ENERGY SERVICES, LLC, 

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Billie L. Whitt, by Counsel Lori J. Withrow, appeals the decision of the West 

Virginia Workers’ Compensation Board of Review (“Board of Review”). US Trinity Energy 

Services, LLC, by Counsel Daniel G. Murdock, filed a timely response.

The issue on appeal is the compensable conditions in the claim. The claims administrator 

held the claim compensable for left ankle, low back, and neck sprains/strains on June 17, 2019.

The Workers’ Compensation Office of Judges (“Office of Judges”) modified the decision in its 

March 6, 2020, Order and added the bilateral shoulders to the claim. The Order was reversed by 

the Board of Review on August 24, 2020, and the claims administrator’s decision was reinstated. 

The Court has carefully reviewed the records, written arguments, and appendices contained 

in the briefs, and the case is mature for consideration. 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 no 

substantial question of law and no prejudicial error. For these reasons, a memorandum decision is 

appropriate under Rule 21 of the Rules of Appellate Procedure. 

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

appeals has been set out under W. Va. Code § 23-5-15, in relevant part, as follows:

(b) In reviewing a decision of the board of review, the supreme court of 

appeals shall consider the record provided by the board and give deference to the 

board’s findings, reasoning and conclusions.

. . . .

FILED

February 25, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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(d) If the decision of the board effectively represents a reversal of a prior 

ruling of either the commission or the Office of Judges that was entered on the same 

issue in the same claim, the decision of the board may be reversed or modified by 

the Supreme Court of Appeals only if the decision is in clear violation of 

constitutional or statutory provisions, is clearly the result of erroneous conclusions 

of law, or is so clearly wrong based upon the evidentiary record that even when all 

inferences are resolved in favor of the board’s findings, reasoning and conclusions, 

there is insufficient support to sustain the decision. The court may not conduct a de 

novo re-weighing of the evidentiary record.

See Hammons v. W. Va. Off. of Ins. Comm’r, 235 W. Va. 577, 582-83, 775 S.E.2d 458, 463-64 

(2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission, 

230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions 

of law arising in the context of decisions issued by the Board. See also Davies v. W. Va. Off. of 

Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011). 

Ms. Whitt, a welder assistant, completed an Employees and Physicians’ Report of Injury 

on May 18, 2019, indicating she injured her left ankle, back, and left wrist when she fell at work 

that day. The physicians’ section was completed at Raleigh General Hospital. Treatment notes 

from Raleigh General Hospital that day indicate Ms. Whitt sought treatment for a work-related fall

and was diagnosed with ankle strain and back pain. 

Ms. Whitt was treated at New River Health on May 20, 2019, for a fall at work in which 

she struck her shoulders, back, and neck on the ground. Ms. Whitt reported pain in her upper back, 

neck, lower back, and left foot. She was diagnosed with left ankle, lumbar, and neck sprains. On 

May 28, 2019, Ms. Whitt sought treatment from A. Mirza, M.D. Ms. Whitt reported that she was 

unable to walk or return to work. Dr. Mirza noted that Ms. Whitt may have to be pushed to return 

to work. The diagnoses were pain in the foot, neck, and low back. 

A May 28, 2019, treatment note from New River Health indicates Ms. Whitt underwent a 

cervical x-ray on May 20, 2019, which showed no fracture but did reveal degenerative disc disease. 

An ankle x-ray showed no acute injury. Ms. Whitt stated that she was unable to return to work. 

She was given a work excuse until June 14, 2019. The claim was held compensable for the left 

ankle, low back, and neck on May 31, 2019. No specific conditions were listed. 

In a June 11, 2019, treatment note, Dr. Mirza noted that Ms. Whitt reported pain in her 

back, neck, shoulders, and left ankle. Dr. Mirza advised physical therapy and stated that Ms. Whitt

did not need to see her again for further treatment. A second Employees’ and Physicians’ Report 

of Injury was completed on June 16, 2019, and indicates Ms. Whitt injured her left ankle, 

shoulders, back, and neck when she fell at work. The physicians’ section states that Ms. Whitt

injured her left calcaneus and that it was likely the injury aggravated a prior injury. 
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Ms. Whitt presented to Beckley ARH Hospital Emergency Room on June 16, 2019, with 

left foot and ankle pain. She stated that her pain was severe and worsened by walking and standing. 

Ms. Whitt reported that she was released to return to work but was unable to do so due to pain. A 

CT scan of the foot showed a cystic lesion on the calcaneum which could be due to osteoid 

osteoma. The claims administrator held the claim compensable for left ankle, low back, and neck 

sprains/strains on June 17, 2019.

On June 18, 2019, Ms. Whitt returned to Dr. Mirza for left foot, low back, and neck pain. 

It was noted that the claim was held compensable for lumbar strain. Ms. Whitt was taken off of 

work for an additional two weeks. Ms. Whitt again sought treatment from Beckley ARH Hospital 

Emergency Room on June 30, 2019, and was diagnosed with ankle sprain/strain. It was noted that 

Ms. Whitt reported severe pain in her ankle, swelling, and difficulty bending her toes. Ms. Whitt

was supposed to return to work the following day but felt she was unable to do so. She was given 

two days off of work and instructed to follow up with her physician. 

A. E. Landis, M.D., performed evaluation on July 11, 2019, in which it was noted that Ms. 

Whitt requested a change of physicians from Dr. Mirza to Dr. Landis. Dr. Landis recommended 

an additional four weeks of physical therapy and stated Ms. Whitt could return to light duty work 

if it was available. Ms. Whitt returned on July 23, 2019, and Dr. Landis recommended four more 

weeks of physical therapy followed by work conditioning/hardening. 

A July 30, 2019, bone scan was performed at Beckley ARH and showed no active bone 

lesion in the left ankle. It was noted that Ms. Whitt should be checked for Osgood-Schlatter’s 

disease and that she may have degenerative facet arthritis in her lumbar spine. Ms. Whitt 

underwent physical therapy on July 31, 2019, and reported that her neck, back, and shoulder pain 

were not improving. Additional physical therapy was recommended. 

A left ankle MRI was performed on July 31, 2019, and showed a mass consistent with a 

cystic lesion. There was no evidence of acute traumatic injury, and no abnormal signals of the 

muscles or tendons were found. Ms. Whitt returned to Dr. Landis on August 20, 2019, and 

continued physical therapy was recommended. Dr. Landis stated that he was releasing Ms. Whitt

from his care, and he recommended an Independent Medical Evaluation. 

On September 10, 2019, David Soulsby, M.D., performed an Independent Medical 

Evaluation in which he opined that Ms. Whitt required no further treatment for the compensable 

injury. Dr. Soulsby stated that Ms. Whitt’s continued neck and back pain were the result of 

degenerative disc disease. The continued left ankle symptoms were the result of the cystic 

formation in the ankle that is unrelated to the compensable injury. Dr. Soulsby concluded that Ms. 

Whitt’s compensable injuries had resolved. 

The Office of Judges modified the June 17, 2019, claims administrator decision and added 

bilateral shoulders as a compensable component of the claim in its March 6, 2020, Order. It found 

that Ms. Whitt initially stated that she injured her left ankle, back, and left wrist when she fell on 

May 18, 2019. Two days later, she reported that she hit her shoulders, back, and neck on the ground 

when she fell. When she saw Dr. Mirza on June 11, 2019, Ms. Whitt reported that she still had 
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pain in her shoulders. The Office of Judges noted that the June 16, 2019, Report of Injury indicates 

Ms. Whitt sustained injuries to her left ankle, back, neck, and shoulders. In June 17, 2019, physical 

therapy treatment notes, Ms. Whitt reported that she injured her shoulders when she fell at work. 

Ms. Whitt testified in a September 12, 2019, deposition that when she fell, she struck both of her 

shoulders on the ground. The Office of Judges found her testimony to be reliable and supported 

by the evidence of record. 

The Board of Review reversed the Office of Judges’ Order and reinstated the claims 

administrator’s decision on August 24, 2020. It found that though Ms. Whitt reported some 

shoulder pain, a physician has not provided a diagnosis for the bilateral shoulders. The Board of 

Review noted that the West Virginia Supreme Court of Appeals has held on numerous occasions 

that pain is a symptom, not a diagnosis. The Board of Review therefore concluded that the bilateral 

shoulders cannot be added to the claim without a specific diagnosis. 

After review, we agree with the reasoning and conclusions of the Board of Review. For an 

injury to be compensable it must be a personal injury that was received in the course of 

employment, and it must have resulted from that employment. Barnett v. State Workmen’s Comp. 

Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970). Though Ms. Whitt reported some symptoms in 

her bilateral shoulders, no physician has made a specific diagnosis in regard to the shoulders other 

than pain. This Court has consistently held that pain is a symptom, not a diagnosis. 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), 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 a claim as they are symptoms, not diagnoses). Because there has been no 

diagnosis made for the shoulders, they cannot be added to the claim. 

 Affirmed.

ISSUED: February 25, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison 

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice Alan D. Moats, sitting by temporary assignment. 

DISSENTING:

Justice William R. Wooton 
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WOOTON, Justice, dissenting:

I dissent to the majority’s affirmance in this case, which, like the Board of Review, 

disregards the Office of Judge’s decision to add bilateral shoulders as a compensable component 

to petitioner Billie L. Whitt’s claim after considering all of the evidence. I find the Board of 

Review’s reversal to be contrary to the evidence and the law and therefore respectfully dissent. 

The issue is whether petitioner’s shoulders were injured as a result of her falling down a 

skid pile while working as a welder assistant. Compensability for purposes of workers’ 

compensation is determined by three elements that must coexist: 1) a personal injury; 2) received 

in the course of employment; and 3) resulting from that employment. Syl. Pt. 1, Barnett v. State 

Workmen’s Compensation Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970); accord Jordan v. 

State Workmen’s Compensation Comm’r, 156 W. Va. 159, 163, 191 S.E.21d 497, 500 (1972). 

Here, the records establishes that petitioner initially stated that she injured her left ankle, 

back, and left wrist when she fell on May 18, 2019. However, two days later she reported that she 

hit her shoulders, back, and neck on the ground when she fell. When she saw Dr. A. Mirza, her 

treating physician, on June 11, 2019, petitioner reported that she still had pain in her shoulders. In 

its decision, the Office of Judges noted that the June 16, 2019, second Employees’ and Physicians’ 

Report of Injury indicates that petitioner sustained injuries to her left ankle, back, neck, and 

shoulders. In a physical therapy evaluation dated June 17, 2019, petitioner reported that she 

injured her shoulders when she fell at work. Further, it was noted that “[a]ctive movement of 

shoulders was restricted by her tone and pain . . . .” A treatment goal was to increase and restore 

the range of motion in the shoulders. Petitioner also testified in a deposition that her fall impacted 

several body parts, including her shoulders, and that she stated that she continues to have shoulder

problems. 

Succinctly stated, the evidence and law supported the decision of the Office of Judges to 

add bilateral shoulders as a compensable component of petitioner’s claim because she proved that 

she suffered an injury to her shoulders during the course of and as a result of her employment. 

See id. The majority and the Board of Review erred in their decisions to the contrary. 

Based on the foregoing, I respectfully dissent.