Airgas v. Lowe - Workers' Compensation Appeal

1 I N THE I NTERMEDIATE C OURT OF A PPEALS OF W EST V IRGINIA AIRGAS MID AME RICA, Employer Below, Peti tioner v.) No. 25- ICA -354 (JCN: 2024020344) JOSHUA LOWE, Claimant B elow, Res pondent ME MORANDUM D ECISION Petitioner Airgas Mid America (“Airgas”) appeals the August 5, 2025, order of the Workers’ Compensation Board of Review (“Board”). Respon dent Joshua Lowe timely filed a response. 1 Airgas did not file a reply. Th e issue on appeal is whe ther the Board erred in reversing the claim a dministrator’s order, which denied the claim. This Court has jurisdiction over thi s appeal p ursuant to West Virginia Code § 51 - 11-4 (2022). After co nsidering the parties’ arguments, the record on appeal, and the applicable law, this C ourt finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affir ming the Board’s o rder is ap propriate under Rule 21 of the Rules of Appellate Procedure. Mr. Lowe, a route driver, signed an Emp loyees’ and Physician s’ Report of Occupational Injury o n May 14, 2024. Mr. Lowe stated that he injure d his head and back when he t ripped on a broken walkway. The physician’s portion of the form was completed by Meredith Ma son, M.D., who indicated that Mr. Lowe sustained a concussion, left wall strain, and cervical spine strain as a result of an occupational injury. Dr. Mason listed the body parts injured as th e head, neck, and left chest wall. By order dated July 30, 2024, the claim administrator de nied Mr. Lowe’s claim. The claim administrator stated that pursuant to West Virginia Code § 23-4-2 (2023), Mr. Lowe was not entitled to rec eive benefits for a self - inflicted injury. 2 The claim administrator 1 Airgas is represented by Jeffrey B. Brannon, Esq. Mr. Lowe is repr esented by G. Patrick Jacobs, Esq. 2 West Virginia Code § 23 -4-2 provides, in part: Notwithstanding anything contained in this chapter, no empl oyee or dependent of any employee i s entitled to receive any s um und er the FILED February 27, 2026 ASHLEY N. DEE M, CHIEF DEPUTY C LERK INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

2 indicated that this decision was based o n a video of the accident, the Employees’ and Physicians’ Report of Occupational In jury, and the medical records from Marietta Memorial Hospital. Mr. Lowe protested th is order to the Board. On November 11, 2024, Mr. Lo we gave a deposition regarding his claim and testified that he was employed by A irgas as a route driver for ab out six years prior to the injury. On the date of the injury, Mr. Lowe testified that he clocked into work at approximately 5:0 0 a.m., built his trip log for the day and loaded bottles onto pallets that went on top of his truck. Mr. Low e indicated that his job duties i ncluded delivering produ ct, including propane, argon, medical oxygen, industrial oxygen, and acetylene, from the Airgas location in Davisville to other locations. It normally took around forty-five minutes to load the truck, w hich involved heavy li fting. After loading the truck, Mr. Lowe realized he forgot his wallet in his personal vehicle, about four hundred feet from where h e had been worki ng, and he would not have been able to leave the premises without his wallet. When he walke d around the building after retrieving his wallet, Mr. Lowe testifie d that his foot slipped on a piece of bro ken concrete, and he fell. Mr. Lowe recalled that he was in a hurry because employees who loaded and unloade d their trucks in under two hours ever y day q ualified for a bon us at the end of the mo nth. T here had bee n gas line work at the facilit y the previous ye ar, and the employer did not fix the resulting holes on the property. Mr. Lo we indicated that his fo ot landed in one of the ho les, and he lost his bal ance and fell. When as ked how many steps he took after tripping, Mr. Lowe indicated that he was unsure, but that he remembered stumbling. Further, Mr. Lowe recalled that th e steel storage racks, five to six feet fro m where he tripped broke his fall. Mr. Lowe did not have any issu es with h is knee s or dizziness that caused hi s fall. Mr. Lowe estimated that he had only taken this route from his truck to the parking garage only one or two times previously but stated that he drove through the area every day. Mr. Lowe testified that he was completely sober on the date of this incident, and there was no basi s for denyi ng the claim based on i ntoxication. Mr. Lowe stated that he hit the left side of his head and his left shoulder, an d that he injured his back. On the day of the injury, Mr. Lowe went to the Belp re Ohio Emergency Room for treat ment. The f ollowing day, he was seen at Me dExpress in Parker sburg, West Virginia. Airgas subm itted a report dated Febr uary 2 5, 2025, from Daniel Palac, Ph.D., managing scientist at E xponent, regarding human factors issues in Mr. Lowe’s claim. Dr. Palac reviewe d the v ideo surveil lance from May 14, 2024, photos of Mr. Lowe’ s workplace, and Mr. Lowe’s deposition testimony. Dr. Palac concluded that the incident on provisions of this chapter on account of an y perso nal in jury... to any employe e caused by a s elf- inflicted injury.. . .

3 May 14, 2024, was consistent with inattention by Mr. Lowe; failure of Mr. Lowe to attend to his work environme nt and travel path; and that the une ven pavem ent was conspicuou s and could have b een observed and navigated without incident by a reasonably alert and attentive individ ual. Further, Dr. Palac concluded that Mr. Lowe’ s sequence of steps following the tripping was not co nsistent wi th the literatur e regarding “fall recover y.” By order dated August 5, 2025, the B oard re versed the claim a dministrator’s order and held the claim compensable for a concussi on, left chest wall strain, and cervical spine strain. The Board foun d that Mr. Lowe es tablished that he suffered a compensable injury when he tripped and fel l at work on May 14, 2024. Airga s now appeals the Boar d’s order. Our standar d of re view is set forth in West Virginia Code § 23 -5-12a(b) (2022), in part, as follows: The Intermediate Cour t of Ap peals may affirm the order or decis ion of the Workers’ Compe nsation Board of Review or remand the case for further proceedings. It shall re verse, vacate, or mo dify the order or decision of the Workers ’ Compens ation Board of Review, if the substa ntial rights of the petitioner or petitioners have been prejudiced because the Board of Review’s findings are: (1) In violation of statutory provis ions; (2) In excess of the stat utory authority or jurisdiction of the Board of Review; (3) Made upon unlawf ul procedures; (4) Affected by other e rror of law; (5) Clearly wrong in view of the reliable, probative, and subs tantial evidence on the whole record; or (6) Arbitrary or caprici ous or characterized by abuse of discreti on or clearly unwarranted exercise of discretion. Syl. Pt. 2, Duff v. Kanawha Cnty. Comm’ n, 250 W. Va. 510, 905 S.E.2d 528 (2024). Airgas ar gues that the Board’s decision is clearly wrong because th e video of the incident and th e opinion of th e only exper t of record esta blish that M r. Lowe intentionally faked tripping and th rew himself into a wall. Further, Airgas argues that Mr. Lowe intentionally injured himself because he was not promoted at work. Airgas asserts that the Board’s decision was clearly wrong because Mr. L owe f ailed to carry his burde n to establish that he sustained an injury, and he failed to submit any reliable medic al evidence that he was injured. We disagree. Three elements m ust coexist in compensability cases: (1) a perso nal injury, (2) received in the co urse of employment, and (3) resulting from that employmen t. Barnett v. State Workmen’s Comp. Comm’r, 1 53 W. Va. 796, 172 S.E.2d 698 (1970). Further, t he

4 Supreme Court of Appeals of West Vir ginia has held that “ A ‘self - inflicted in jury,’ such as would bar recovery, is an intentionally -inflicted injury. It is not a negligently- inflicte d injury as the governing statutes specificall y establish a no- fault system of workers’ compensation.” Roberts v. Consolidation Coal Co., 208 W. Va. 218, 235, 539 S.E.2d 478, 495 (2000). Here, the Board found that the surveillance video shows Mr. Lowe walking, catching his foot on an uneven slab of concret e, falling forward into a rack of pallets, and then falling to the con crete, which corrob orates his de scription of the injury. Further, the Board conclud ed that even if Mr. Lowe had been inattentiv e or oth erwise negligent, his claim can not be denied as an intentiona lly i nflicted injury. 3 Although Airgas argues that there is no medical evidence to supp ort the compensability of Mr. Lowe’s claim, as noted by the Board, the physician’s portion of the Report of Occupational Injury form l ists the diagnoses of concussion, chest wall str ain, and a cervical spine strain. Based on t he foregoing, the Board found that Mr. Lowe established that he suffered a compensable injury when he trip ped and fell at work on May 14, 2024. Also, to the extent Airgas continues to asser t that Mr. Lowe’ s injury was due to his inattention, and “failure to attend to his environment and path,” as p osited by Dr. Palac, we reiterate that West Vir ginia Workers’ Compensation is a no -fault system. See Hood v. Lincare Holdings, Inc., 249 W. Va. 108, 112, 894 S.E. 2d 8 90, 894 (2023) (no ting that workers’ compensation is a no - fault syste m and when an e mployee is injured, “it does no t matter whether the e mployer or employee was at fault.”). Upon review, we c onclude that Airgas has not established that the Board’s decision is clearly wrong. As set forth by the Supreme Court of Appeals of West Virginia, “ [t]he ‘clearly wrong’ an d the ‘arbitrary and capricio us’ standards of rev iew are deferential ones which presume an agency’s ac tions are valid as long as the decision is supported by substantial e vidence or by a rational basis.” S yl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996). Wit h this defere ntial st andard of review in mind, we cannot c onclude that the Board was clea rly wrong in reversin g the claim admin istrator’s order and h olding the claim compensa ble for a concussion, lef t chest wall strai n, an d cervical spine strain. Accordingly, we affirm the Board’s Augu st 5, 2025, order. Affirmed. 3 Airgas’s argum ent tha t Mr. Lowe’s injury wa s intentio nal is border line bad fa ith, as nothing in Dr. Palec ’s report indicates t hat he believed the injur y to be self -inf licted.

5 ISSUED: February 27, 2026 CONCURRED IN B Y: Chief Judge Daniel W. Greear Judge Charles O. L orensen Judge S. Ryan White