West Virginia Record

Wednesday, October 23, 2019

Coal miner wins Workers' Comp for wrist injury

By Nathan Bass | Jun 21, 2013

CHARLESTON – A coal mine worker will have his work-related wrist injury compensated after the state Supreme Court affirmed the overruling of the claims administrator by the Workers’ Compensation Board of Review.

The state High Court released its unanimous memorandum opinion on June 12.

Rex W. Whipkey was employed by Consolidated Coal Company when he injured his wrist laying down tracks for an underground mine on June 10, 2010. He alleged his wrist was injured when the sledgehammer he was using twisted when he was driving spikes into the rails.

After his wrist immediately swelled, he reported the injury to his supervisor. Whipkey was diagnosed with a sprained right wrist at Wheeling Hospital Emergency Room. A few days later he was examined by a Dr. Milton who noted that the x-rays of Whipkey’s wrist showed signs of an old fracture as well as some degenerative changes.

The Workers’ Compensation claims administrator denied Whipkey’s claim on June 30, 2010, based on Dr. Milton’s report. The Board of Judges reversed the claims administrator, on March 24, 2011, and the Board of Review affirmed the Board of Judges Order on Aug. 25, 2011.

The coal company then appealed to the state Supreme Court.

“The Office of Judges found, based on the diagnostic reports from Wheeling Hospital and Mr. Whipkey’s deposition, that a preponderance of the evidence weighed in favor of finding that Mr. Whipkey had received an injury during the course of his employment at Consolidation Coal Company,” the opinion states.

“The Office of Judges recognized that Mr. Whipkey had an old fracture of his right wrist, which had healed, but found that this did not contradict Mr. Whipkey’s demonstration that he had received a new injury. The Board of Review adopted the findings of the Office of Judges and affirmed its Order on August 25, 2011.

“We agree with the conclusions of the Board of Review. Mr. Whipkey has presented sufficient evidence to show that he has a new compensable injury and Consolidation Coal Company has not presented any evidence that contradicts this demonstration.

“Although the report of Dr. Milton shows that Mr. Whipkey had an old injury in his right wrist, this fact does not preclude Mr. Whipkey from being compensated for a new injury that he received in the course of his employment.

“For the foregoing reasons, we find that the decision of the Board of Review is not in clear violation of any constitutional or statutory provision, nor is it clearly the result of erroneous conclusions of law, nor is it based upon a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision of the Board of Review is affirmed.”

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