                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
KEVIN GUMP,                                                                   September 10, 2013
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 11-1588 (BOR Appeal No. 2045942)
                   (Claim No. 2011010199)

GRAHAM-SIMON PLUMBING COMPANY, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Kevin Gump, by Robert L. Stultz, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Graham-Simon Plumbing Company,
LLC, by Lisa W. Hunter, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated October 26, 2011, in
which the Board reversed an April 6, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s November 12,
2010, Order denying the claim. The Court has carefully reviewed the records, written arguments,
and appendices contained in the briefs, and the case is mature for consideration.

       This Court has considered the parties’ briefs and the record on appeal. 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.

        On August 11, 2010, Mr. Gump was working as a plumber for Graham-Simon Plumbing
Company, LLC when he experienced left hip pain that radiated into his left leg. On August 15,
2010, at United Hospital Center, Mr. Gump was diagnosed with pain related to sciatica on the
left side. On his application for benefits, Mr. Gump stated “not sure” in response to the question
of how the accident happened. Dr. Anna Scott, who signed the application for benefits, indicated
that Mr. Gump’s injury was a non-occupational injury. The claims administrator denied
compensability for the claim.

      The Office of Judges reversed the claims administrator’s Order and held the claim
compensable. The Office of Judges found that the evidence showed that more likely than not,
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Mr. Gump experienced a compensable injury on August 11, 2010. The Office of Judges stated
that during the course of litigation further evidence had been produced to establish by a
preponderance of the evidence that Mr. Gump’s claim was compensable. The Office of Judges
found that Mr. Gump’s sworn testimony regarding his injury of August 11, 2010, outweighed the
seven year old complaints of a similar nature in the three earlier compensable claims.

        The Board of Review reversed the Office of Judges Order and reinstated the claims
administrator’s Order of November 12, 2010. The Board of Review found the Office of Judges’
final Order’s analysis and conclusions were clearly wrong in view of the reliable, probative and
substantial evidence on the whole record. The Board of Review noted that Mr. Gump signed an
application for benefits after writing “not sure” in response to questions about how the injury
occurred. Dr. Scott completed the physician’s portion of the claim application where he indicated
a non-occupational condition of the hip related to sciatica, listed the type of injury as nerve pain,
and found that there was no indication on the claim of an aggravation of a prior injury. The
Board of Review further noted that no isolated fortuitous event is noted in the medical records on
the date of the alleged injury and that Mr. Gump previously had sciatica pain. The Board of
Review found that the preponderance of the evidence did not establish that Mr. Gump sustained
an injury in the course of and resulting from his employment. We agree with the reasoning and
conclusions of the Board of Review.

        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.


                                                                                          Affirmed.

ISSUED: September 10, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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