Gracious Dining LLC v. Lopez - Workers' Compensation Appeal

1 I N THE I NTERMEDIATE C OURT OF A PPEALS OF W EST V IRGINIA GRACIOUS DINING, LLC, Employer Below, Peti tioner v.) No. 25- ICA -33 6 (JCN: 2024009187) MIRIAM LOPEZ, Claimant Below, Res pondent MEMORANDUM D ECISION Petitioner Graciou s Dining, LL C, (“ Gracious ”) appeal s the July 17, 2025, order of the Workers’ Compens ation Board of Rev iew (“Board”). Respond ent Miriam Lopez filed a response. 1 Gracious did not reply. The issue on ap peal is w hether the Board erre d in reversing the claim administrator ’s order, wh ich rejected the claim. This Court has jurisdiction over this ap peal p ursuant to West Virginia Code § 51 - 11-4 (2024). After co nsidering the parties’ arguments, t he record on appeal, and th e applicable law, this Court finds no substantial question of law and no prejudici al error. For these reas ons, a memorandum decision affir ming the Board’s order is ap propriate under Rule 21 of the Rules of Appellate Procedure. On November 11, 202 3, Ms. Lop ez presente d to the emergenc y room (“ER”) at United Hospital Center with complaints of a head injury and pain in her right wrist and left ankle after tripping an d falling at work. Ms. Lopez reported that s he tripped and fell forward, strikin g her head and briefly losing consciousn ess. She noted that her ankle and wrist pain were pres ent prior to her fall at work. He r past medic al history included a diagnosis of cerebral palsy, diabet es, and spasticity. A CT scan of Ms. Lopez’s brai n revealed no acute intracranial process, and x -rays of her right wrist and left ankle revealed no bony abnormalities. The assessment wa s fall, head injury, and c oncussion. Ms. Lopez filed a n Employees’ and P hysicians’ Report of Occupatio nal Injury or Disease dated November 12, 2023, indicating that while she was an employee of Gracious she was outside taking an order whe n she tripp ed and fell, hitting her head on the paveme nt. She alleged injuries to her head and right wrist. The physician’s s ection of th is claim 1 Gracious is represente d by Jane Ann Pancake, Esq., and Jef frey B. Brannon, Esq. Ms. Lopez is repres ented by J. Th omas Greene, Jr., Esq., and T. Coli n Greene, Esq. FILED February 27, 2026 ASHLEY N. DEE M, CHIEF DEPUTY C LERK INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

2 application was completed by a medical provider at United Health Center on November 12, 2023. Th e provide r indicated tha t Ms. Lopez had sustained an occupational injury resulting in a concussion. On November 13, 2023, Ms. Lopez was seen at the WVU Medicine ER for neurologic symptoms following a fall. Ms. Lopez’s mother stated that Ms. Lopez experienced an u nwitnessed syncopal event earlier in the day, and s he was found lyin g on the floor on her back, as if she h ad fallen fro m a standing pos ition. Ms. Lo pez’s mother also noted that Ms. Lopez had r ecently suffered a head injury at wo rk. It was note d that Ms. Lopez lost consciousness after the fall an d her co-worker s, who witnessed the event, reported that she was difficult to arouse following the fall, but she eventually regaine d consciousness. Ms. Lo pez reportedly attempted to continue working but had an unsteady gait and slowed speech, so her parents were c alled to come and pick her up, and she was treated in the ER. Ms. Lopez’s mother stated that she developed worsening headaches with photophobia, visual di sturbances, flashes of bright color, and di minished mental acu ity following t he fall at work. A CT scan of Ms. Lopez’s brain was perf ormed and co mpare d to a prior CT scan. The new scan showed no abnormalities and Ms. Lopez was a ssessed with a concussion. Ms. Lopez rec eived treatment from Ellis Fr azier, M.D., fr om Ma rch 27, 2015, through April 10, 2024. In a letter from Dr. Frazier dated November 13, 2023, it was noted that Ms. Lopez had rec ently suffered a work -related fall resulting in a closed head injury. Dr. Frazier indicated that Ms. Lopez devel oped an obvious altere d mental status and suspected cognitive ch anges following the fall. Ms. Lopez’s injury had required repeat emergency room evaluations, and Dr. Frazi er anticipated that Ms. Lopez would likely require a neurologica l specialty evaluat ion along with further testin g. Dr. Frazier opined that Ms. Lopez’s prolo nged recovery period w ould make it difficult for her to keep up with her educational st udies and testing obligation s. He planned to re-ev aluate Ms. Lopez in four to six weeks. Dr. Frazier autho red ad ditional le tters d ated N ovember 21, 2023, and December 26, 2023. He stated that Ms. Lopez had sustained a closed head injury with a resultant period of brief unconscio usness after a f all at work. He found that M s. Lop ez had developed an obvious altered mental status and cogniti ve changes following the recent injury and would likely require evalua tion by a neurological s pecialist. Dr. Frazier e xtended Ms. Lopez ’s work excuse through J anuary 27, 2024, and scheduled Ms. Lopez for follow up in five t o six weeks. The claim adminis trator issued a n order dat ed Decembe r 14, 2 023, rejecting t he claim based upon t he f ollowing findings: 1) Ms. Lopez was si mply walking an d her foot twisted; 2) there was nothing faulty with the sidewalk to cause the inci dent; and 3) walking is not considered a n injury under workers’ compensation. Ms. Lopez protested this orde r.

3 On July 17, 2025, the B oard reversed the claim administrat or’s order, which rejected the claim. The Board found that Ms. Lopez established by a prepo nderance of the evidence that she sustained a concussion in the cour se of and resulting from her empl oyment. Gracious now appeals t he Board’s order. Our standar d of re view is set fort h in West Vi rginia Cod e § 23 -5-12a (b) (2022), in part, as follows: The Inter mediate Cour t of Appeals may affirm the order or decision of the Workers’ Compe nsation Board of Review or remand the case for f urther proceedings. It shal l reverse, vacate, or mo dify the order or decision of the Workers ’ Compens ation Board of Review, if the substantial rig hts of the petitioner or petitioners have been prejudiced b ecause the Board of Review’s findings are: (1) In violation of statutory provis ions; (2) In excess of the stat utory author ity or juri sdiction of the Board of R eview; (3) Made upon unlawf ul procedures; (4) Affected by other e rror of law; (5) Clearl y wro ng in view of the reliable, pr obative, and subs tantial evidence on the whole record; or (6) Arbitrary or ca pricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. Syl. Pt. 2, Duff v. Kanawha Cnty. Comm’ n, 250 W. Va. 5 10, 905 S.E.2d 528 (20 24). On appeal, Gracious raises three assign ments of error, each arguing that the Board erred in finding that Ms. Lopez su stained a co mpensable i njury as a result of a fall at her workplace on November 11, 2023, and cited t o Ms. Lopez’s medica l records, which they contend establis h that Ms. Lopez had signific ant cognitive issues prior to the subject fall. Further, Gracious sugg ests that the medical records rel ied u pon by th e Board in reversing the denial are based on an incorrect history of Ms. Lopez’ s fall at wor k. Three elements must coexist in workers ’ compensation cases to establish compensability: (1) a personal injury, (2) re ceived in the course of employme nt, and (3) resulting fro m that employment. Ba rnett v. State Workmen’ s Comp. Comm’r, 15 3 W.Va. 796, 172 S.E.2d 6 98 (1970); San som v. Workers’ Comp. Comm’r, 176 W. Va. 545, 346 S.E.2d 63 (1986). Upon revie w, we c onclude that the Board w as not clearl y wron g i n finding t hat, based on a prepondera nce of the medical evi dence, Ms. Lopez fell and hit her head, thu s suffering a concus sion in the course of a nd resulting fro m her employment with Gracious.

4 The record reflects that Ms. Lopez was diagnosed by multiple med ical providers with a closed head injury/concussion following the underlying fall. The Boa rd particularly noted the opinio n of Dr. Fraz ier, who treated Ms. L opez on multiple occasions both before and after the underlying fall, and his determinati on that Ms. Lopez sustained a closed head injury as a result of the fall and that she had de veloped new symptoms after the fall. Given such evidence, we fi nd no error. As the SCAWV has set forth, “[t]he ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones which presume an agency’s actions are valid as long as the de cision is suppo rted by substantial evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 48 3 (1996). With this defere ntial standard of re view in mind, based on the foreg oing, we cann ot conclude that the Board wa s clearly wrong in revers ing the claim administr ator’s order rejecting th e claim. Accordingly, we affirm the Board’s July 17, 202 5, order. Affirmed. ISSUED: February 27, 2026 CONCURRED IN B Y: Chief Judge Daniel W. Greear Judge Charles O. L orensen Judge S. Ryan White