“one of the essential purposes of the Workmen’s Compensation Act as conceived by the Legislature…is to provide a simple and expeditious method of resolving the question of disputed claims arising from injuries occurring in the workplace.”
How later courts described this case
- “one of the essential purposes of the Workmen’s Compensation Act as conceived by the Legislature…is to provide a simple and expeditious method of resolving the question of disputed claims arising from injuries occurring in the workplace.”
Written by the judges who cited it.
The opinion
IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
QUANTA SERVICES, INC. May 1, 2023
Employer Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 22-ICA-244 (JCN: 2021018967)
ZACHARY BOLLING
Claimant Below, Respondent
MEMORANDUM DECISION
Petitioner Quanta Services, Inc. (“Quanta Services”) appeals the order of the
Worker’s Compensation Board of Review (“Board”) dated October 3, 2022, that reversed
the claim administrator’s order dated May 19, 2021. Respondent Zachary Bolling filed a
timely response.1 Quanta Services did not file a reply. The issue on appeal is whether the
Board erred in reversing the claim administrator, holding the claim compensable for
electrical shock and sequelae of electrical shock, and remanding the claim back to the claim
administrator to address temporary total disability (“TTD”) and other benefits.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ briefs and oral argument, the record on appeal,
and the applicable law, this Court finds no substantial question of law and no prejudicial
error. For these reasons, a memorandum decision affirming the Board’s order is
appropriate under Rule 21 of the Rules of Appellate Procedure.2
On March 10, 2021, Mr. Bolling, a groundman for Quanta Services, was working
with a crew repairing an electrical transmission line tower. The crew was in the process of
lowering the electrical transmission (“power”) line from the tower so that it could
eventually be disconnected. One worker was in the bucket of the truck at the top of the
tower, while Mr. Bolling and three other workers were on the ground at the bottom of the
tower. The power line was grounded to the tower structure and was tested for voltage which
gave a reading of zero volts. The ground wire to the tower was not long enough for the
1
Petitioner is represented by Daniel G. Murdock, Esq. Respondent is represented
by Kelly Elswick-Hall, Esq.
2
The Court acknowledges that this matter was presented for oral argument on
February 28, 2023, pursuant to Rule 19 of the Rules of Appellate Procedure.
1
power line to be lowered all the way to the ground, so a new ground wire was attached
from the power line to a new grounding rod driven into the ground, and the ground to the
structure was removed. There is a dispute about the depth the grounding rod was driven
into the ground.
Mr. Bolling and the three other workers below, including his immediate foreman,
Freddie Ray Boggs, took hold of the power line and were maneuvering it into position in
order to attach a grip to the power line to anchor the line to a bulldozer. According to Mr.
Boggs, Mr. Bolling was the closest worker to the grounding rod and was holding both the
power line and a rigging cable with a large grip attached to it, which was connected to a
steel choker on the nearby dozer. Mr. Bolling was the only crewmember who was holding
both the power line and the rigging cable. According to Mr. Boggs, and Jason Bryant, a
crewmember, one of the crew told Mr. Bolling to let go of the power line, but he could not;
he tensed up and collapsed on the ground.
Mr. Bolling lost consciousness and was not breathing. One of his co-workers began
CPR while Mr. Boggs ran to the truck and got the automated external defibrillator
(“AED”), which is kept on these worksites due to the risk of electric shock and cardiac
arrest. The AED was placed on Mr. Bolling’s chest and detected that he needed a shock,
so a shock was deployed. Mr. Bolling began to take very shallow breaths and gasps of air
but remained unconscious. Mr. Bolling was then transported by helicopter to Charleston
Area Medical Center (“CAMC”).
Later that day, Mr. Boggs returned to the site to secure the power line the crew was
working on. When he grabbed the power line that was still attached to the grounding rod,
Mr. Boggs was shocked. The power line was then tested and showed 600 volts of power,
even though it was still connected to the same grounding rod.3 After this incident, the crew
moved the grounding rod to the base of the structure, which was determined to be a lower
impedance path to the ground, and the crew was able to get a 0v reading on the conductor
at that time and prior to the start of work the next day.
The next day, on March 11, 2021, an incident investigation report was completed
by AEP Transmission, indicating that Mr. Bolling and his work crew were tasked with
moving a 345kv conductor which had been de-energized and grounded. There were three
crew members, two were holding onto the conductor while a third was tasked with
installing a grip. Approximately thirty seconds into assisting with the catching of the
3
Mr. Boggs told the AEP representative on site, Josh Fisher, that someone needed
to call the hospital and inform medical personnel that Mr. Bolling may have been shocked.
However, nobody called the hospital to inform them, and it was not until sometime after
multiple diagnostic tests were completed, trying to identify the root cause of Mr. Bolling’s
episode, that it was revealed he might have been shocked.
2
conductor, one crewmember (Mr. Bolling) began to show symptoms of a seizure. Later
that day, it was discovered that although the power line was supposedly grounded, there
was a measurable amount of induced voltage (500v-600v) on the grounded conductor
where the crew had been working. Nevertheless, although the report concluded that Mr.
Bolling could have been negatively affected by the presence of induced voltage on the
conductor, that it was unlikely, as there were at least two other crew members in contact
with the conductor a few feet away who were not affected.
From March 10, 2021, to March 16, 2021, Mr. Bolling was examined by numerous
medical personnel. During this time period, it was unclear what caused Mr. Bolling to
experience his episode on the date of injury, since it was believed that the power line was
grounded and Mr. Bolling could not have sustained an electric shock. Neither Mr. Bolling
nor his medical providers were aware that shortly after Mr. Bolling’s episode, it was
discovered that the power line was still energized and there was actual potential for an
electrical shock.4 Numerous doctors stated that they believed it was seizure like and could
have been caused by the medications he was taking at the time. Notably, on March 13,
2021, Mr. Bolling was seen by Carl Musser, Jr., M.D., a cardiac electrophysiologist. Dr.
Musser at that time stated that “[p]atient’s syncope very concerning for primary arrythmia
issue as I do not believe he was electrocuted.” Further, Dr. Musser’s assessment stated,
“[h]istory and symptoms are suggestive of possible seizure activity, especially given that
bystanders noticed that he was shaking and foaming at the mouth. Again, neither Mr.
Bolling nor his medical providers were aware of the real potential for an electric shock
until after Mr. Bolling returned to work in April 2021, when he was advised by a co-worker
that voltage had been discovered on the line hours after his episode. Once Dr. Musser
learned about that voltage on the line, he determined that Mr. Bolling had suffered an
electrical shock on the day of the incident.
By order dated May 19, 2021, the claim administrator denied Mr. Bolling’s claim
on the basis that he did not suffer an injury in the course of and resulting from his
employment. On October 27, 2021, Mrs. Bolling signed an affidavit, and on December 21,
2021, she was deposed. She stated, among other things, that after regaining consciousness,
Mr. Bolling indicated “that he was shocked and felt it go into his left finger and he had his
left elbow on the line.” Notably, Mrs. Bolling also stated that she continued to text Mr.
Bolling’s employer while he was hospitalized to keep them updated on his care and
prognosis, and at the request of Mr. Bolling’s medical providers to obtain details about the
accident to help with their diagnosis. Three days after the injury, she told them that they
were waiting on an MRI, and that doctors were concerned because they could not figure
out why a healthy twenty-five-year-old’s heart would just stop. Two days later, she again
4
Although electric shock and electrocution are often used synonymously, by both
lay people and physicians, electrocution is generally reserved for electric shocks resulting
in death.
3
texted Mr. Bolling’s employer to say that doctors had conducted multiple diagnostic tests
but could not find any answers. Because the doctors could not find any structural reasons
for the cardiac event, Mr. Bolling’s cardiologist, Dr. Musser, surgically implanted a cardiac
loop recorder to capture any future cardiac events in hopes of determining the source of
Mr. Bolling’s episode. Mrs. Bolling informed the employer that this surgery was going to
take place, and specifically mentioned that the doctors kept asking if they were sure there
was no possibility that Mr. Bolling was shocked, because that was the only explanation
that made sense.
In Dr. Musser’s affidavit, dated November 29, 2021, he explained that he was told
on the day of the event that Mr. Bolling could not have been electrocuted, so he performed
a significant amount of testing in an effort to determine the source of Mr. Bolling’s cardiac
and respiratory arrest. However, those tests revealed no structural explanation, so Dr.
Musser implanted the loop recorder, but it did not record any life-threatening arrhythmias
that could explain the event. Once Dr. Musser was informed that, in fact, there had been
600 volts on the power line, and given the lack of any structural abnormality or significant
medical history that might explain Mr. Bolling’s episode, Dr. Musser concluded that Mr.
Bolling sustained an electric shock on March 10, 2021, causing his cardiac and respiratory
event.
Chuan Fang Jin, M.D., reviewed Mr. Bolling’s medical records at the request of
Quanta Services. In her June 6, 2022, report, Dr. Jin noted, among other things, that cardiac
injury due to electrocution would result in heart injury and would be indicated by cardiac
enzyme elevation and ventricular arrythmias that are not present in this case. Dr. Jin also
noted that Vyvanse and Phentermine are both stimulants that can cause seizures, and if
taken with Lexapro can increase serotonin levels, which can increase seizure activity. Thus,
Dr. Jin concluded that the most likely etiology of Mr. Bolling’s event on March 10, 2021,
was a seizure that caused cardiac arrythmia/arrest.
On October 3, 2022, the Board reversed the claim administrator and found that the
preponderance of evidence established that Mr. Bolling sustained an electrical shock in the
course of and resulting from his employment. The Board, as the trier of fact in this matter,
determined that Dr. Musser, a cardiac electrophysiologist, was clearly the most qualified
to address the etiology of Mr. Bolling’s heart distress, and thus it adopted Dr. Musser’s
opinion that Mr. Bolling had most likely experienced and electric shock in the course of
and resulting from his employment. The Board ordered the claim be held compensable for
electrical shock and its sequelae and remanded the claim to the claim administrator to
address TTD and other benefits. It is from that order that Quanta Services now appeals.
Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:
4
The Intermediate Court of Appeals may affirm the order or decision of the
Worker’s Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Worker’s Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:
(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence on
the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion
On appeal, Quanta Services argues that the Board’s order is premised entirely on
the speculative and plainly unreliable opinion of Dr. Musser, is arbitrary and capricious in
its weighing of the evidence, and blatantly disregards the evidence, which it argues
establishes that Mr. Bolling did not sustain a workplace injury. Thus, Quanta Services
argues that the Board’s order is noncompliant with the requirements of West Virginia Code
§ 23-4-1g, which requires that decisions be made upon a preponderance of the evidence
standard and discards the rule of liberality in the adjudication of workers’ compensation
disputes.5
Specifically, Quanta Services argues that the medical evidence of record fails to
establish any indication of electrical injury, and the scientific evidence establishes that Mr.
5
West Virginia Code § 23-4-1g (2003), provides in pertinent part that:
[R]esolution of any issue raised administering this chapter shall be
based on a weighing of all evidence pertaining to the issue and a finding that
a preponderance of the evidence supports the chosen manner of resolution.
The process of weighing evidence shall include, but not be limited to, an
assessment of the relevance, credibility, materiality and reliability that the
evidence possesses in the context of the issue presented. Under no
circumstances will an issue be resolved by allowing certain evidence to be
dispositive simply because it is reliable and is most favorable to a party’s
interests or position. If, after weighing all of the evidence regarding an issue
which a claimant has an interest, there is a finding that an equal amount of
evidentiary weight exists favoring conflicting matters for resolution, the
resolution that is most consistent with the claimant’s position will be
adopted.
5
Bolling could not have sustained an electrical injury under the circumstances present on
March 10, 2021. First, Quanta Services argues the Board failed to provide any meaningful
analysis of the evidence that Mr. Bolling was taking Phentermine, Lexapro and Vyvanse,
as well as occasional medical marijuana use at the time he collapsed. Second, Quanta
Services argues that the Board failed to address the issue of the lack of entry and exit
wounds, which it asserts would be present if Mr. Bolling had been electrocuted. Lastly,
Quanta Services argues that the scientific evidence of record from AEP and John Averett,
clearly establishes that Mr. Bolling could not have received an electric shock on March 10,
2021.
Quanta Services’ argument about the combination of medications Mr. Bolling was
taking at the time of injury is without merit. Upon Mr. Bolling’s arrival to the emergency
room it was unclear whether he was still taking Phentermine, Lexapro, and Vyvanse.6
However, Mrs. Bolling’s affidavit is clear that he was no longer taking Phentermine at the
time of the work-related injury.7 Further, once Dr. Musser became aware of the voltage
remaining on the line after Mr. Boggs returned to the site and was himself shocked, Dr.
Musser opined that, based on Mr. Bolling’s medical history and the various diagnostic tests
conducted which effectively ruled out various other potential causes for Mr. Bolling’s
episode, Mr. Bolling had sustained an electric shock.
Additionally, Quanta Services’ argument about the lack of apparent entry/exit
wounds from electrical shock is not dispositive. In fact, Dr. Musser, as the Board found,
was the most qualified physician of record and knew Mr. Bolling’s physical injury and lack
of entry/exit wounds, and yet Dr. Musser opined that an electrical shock took place. The
Board was not clearly wrong finding Dr. Musser to be the most qualified physician.
Moreover, it is generally known that electrical burn entry and exit wounds are not always
evident. A prime example is Mr. Boggs receiving an electrical shock later on the day of the
incident, from the same line Mr. Bolling was holding on to, and Mr. Boggs did not have
entry/exit wounds. Whether an individual has electrical burn entry and exit wounds can be
different for each person and dependent on a variety of factors, including but not limited
to, type of current (amperage), voltage, duration of exposure, and body resistance. 8
6
Phentermine is for weight loss. Lexapro is an anxiety medication and Vyvanse is
for attention deficit hyperactivity disorder (ADHD).
7
Mrs. Bolling asserted, “[a]fter he was released from the hospital, we contacted the
clinic where he went for weight loss in the past and found out that, in reality, he had not
been recently prescribed any weight loss medication.”
8
“Electrical burn entry and exit wounds can vary between every individual and will
not always be apparent. See Daniel P. Runde, Electrical Injuries, MSD Manual
Professional Version (Sept. 2022), Electrical Injuries - Injuries; Poisoning - MSD Manual
Professional Edition (msdmanuals.com); see also Christina Beutler, Electrocution:
6
Lastly, the AEP investigation and Quanta Services expert, John Averett, both had
doubts in their opinions about whether or not Mr. Bolling had sustained an electric shock.
On the one hand, the AEP report concluded that Mr. Bolling could have been negatively
affected by the presence of induced voltage on the conductor, although, it was unlikely, as
there were at least two other crew members in contact with the conductor a few feet away
who were not affected.9 Mr. Averett also stated, “[b]ecause this same scenario [a charge
on the line] could not be replicated the following morning [it] raises a question in my mind
of whether or not there was a detectable voltage on the line at the time of the incident.”
(Emphasis added). At a minimum, this suggests that both AEP and the engineering expert
were equivocal about the electric shock potential at the time of Mr. Bolling’s episode. Thus,
the Board was not clearly wrong in determining that a preponderance of the evidence
establishes that Mr. Bolling sustained an electric shock in the course of and resulting from
his employment.
Upon review, we find no error in the Board’s order dated October 3, 2022. The
record contains no evidence that Mr. Bolling had any prior history of heart issues. Further,
once Dr. Musser eventually became aware that there was still voltage on the line later on
the day of the incident, he concluded Mr. Bolling had sustained an electric shock. In Dr.
Musser’s affidavit, dated November 29, 2021, he explained that he was told on the day of
the event that Mr. Bolling could not have sustained an electric shock, so he performed a
significant amount of testing in an effort to determine the source of Mr. Bolling’s
cardiac/respiratory compromise. However, those tests revealed no structural explanation,
so Dr. Musser surgically implanted a loop recorder, but it did not record any life-
threatening arrhythmias that could explain the event. Once Dr. Musser was informed that
there had been 600 volts on the line hours after the incident, and the lack of other structural
abnormality or significant medical history, Dr. Musser made a differential diagnosis and
concluded that Mr. Bolling sustained an electric shock causing his cardiac and respiratory
event on March 10, 2021.
This Court notes the need for employers in workers’ compensation claims to provide
medical providers and claimants or their families with information about which they are
aware concerning the cause and circumstances resulting in an injury, particularly when
such information may be relevant to diagnosis and treatment. In the case sub judice, it
Prehospital Care of Electrical Burns (March 29, 2018), Electrocution: Prehospital Care of
Electrical Burns - EMT Training Base.
9
Notably, the report also states “[c]ontractor employees have suggested that
underlying medical conditions may have caused” Mr. Bolling to collapse on the job site,
but also notes a lack of information about the type and condition of [the employees]
respective hand protection.
7
appears that Quanta Services failed to timely provide information to Mr. Bolling’s family,
or his medical providers related to Mr. Bogg’s electrical shock. They only learned this
information when Mr. Bolling returned to work in April and was informed by a co-worker
that Mr. Boggs had been shocked by the same power line later on the day of the incident.
Consequently, Mr. Bolling arguably underwent additional diagnostic testing resulting in
added costs, delayed diagnosis and treatment, and delay in his return to work, which are
inconsistent with the purpose and goals of the workers’ compensation act, which include:
1) receipt of proper and timely medical treatment; 2) return to work at earliest possible
time; and 3) prompt, fair compensation to the injured worker. Hammons v. West Virginia
Office of Ins. Com’r, 235 W. Va. 577, 585-588, 775 S.E.2d 458, 466-469 (2015) (“one of
the essential purposes of the Workmen’s Compensation Act as conceived by the
Legislature…is to provide a simple and expeditious method of resolving the question of
disputed claims arising from injuries occurring in the workplace.”) (Citation omitted); see
W. Va. Code §§ 23-4-3a (2005), 23-4-7b (2008), and 23-5-13 (2021).
The irony of the situation in this case is that as a result of Quanta Services failure to
provide the Bolling’s and/or Mr. Bolling’s medical providers with complete, updated
information, Dr. Musser conducted a more exhaustive investigation, including extensive
testing, having multiple consults, and even implanting a cardiac monitor in an effort to
identify the cause of Mr. Bolling’s cardiac event. Dr. Musser effectively ruled out all other
possible causes, leaving electrical shock during employment as the only reasonable cause
of Mr. Bolling’s cardiac event, providing further evidentiary support for the Board’s
decision.
Accordingly, we affirm the Board’s order dated October 3, 2022.
Affirmed.
ISSUED: May 1, 2023
CONCURRED IN BY:
Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen
8