                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS                                    FILED
                                                                                     October 26, 2016

LORENZO J. DECARIA,                                                               RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
Claimant Below, Petitioner                                                          OF WEST VIRGINIA



vs.)   No. 15-1232 (BOR Appeal No. 2050538)
                   (Claim No. 2015004283)

WEIRTON MEDICAL CENTER, INC.,
Employer Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Lorenzo J. Decaria, by Michael A. Adams, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Weirton Medical Center, Inc., by
Peter R. Rich, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated November 23, 2015, in
which the Board affirmed a May 14, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 12,
2014, decision rejecting 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.

         Mr. Decaria was allegedly injured on July 7, 2014, when he was lifting a patient. Mr.
Decaria went to Weirton Medical Center on August 2, 2014, claiming he was suffering from
back pain as a result of lifting a patient three weeks prior. Mr. Decaria reported this injury for the
first time to his supervisor, Susan Redish, on August 6, 2014. Natalie Beatty, Weirton Medical
Center’s Employee Health Nurse, was notified the following day, and an incident/accident
investigation form was created. Mr. Decaria could not remember the exact date the injury
occurred. He also could not remember in which patient room the incident occurred or with whom
he was working at the time.
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       On September 12, 2014, the claims administrator rejected the claim, stating that Mr.
Decaria failed to prove that he sustained an injury in the course of and resulting from his
employment. The claims administrator further stated that there were sufficient inconsistencies
and contradictions to conclude that Mr. Decaria was not injured in the course of and resulting
from his employment. This conclusion was based on several medical records showing Mr.
Decaria’s extensive history with back injuries and his several inconsistent and vague statements
about what occurred. Mr. Decaria appealed to the Office of Judges.

        Denise M. Moodie, a registered nurse at Weirton Medical Center, prepared an affidavit
for Mr. Decaria stating that she was the one with whom he was working on the night of the
injury. Ms. Moodie stated that they were attempting to move a 300 pound patient who was on a
ventilator when Mr. Decaria winced and grabbed his back, stating that he had severe pain. Upon
further investigation, Ms. Beatty and Ms. Redish prepared affidavits for Weirton Medical Center.
Ms. Beatty and Ms. Redish both stated that Mr. Decaria had not attempted to notify anyone of
the injury for an entire month after it allegedly occurred. Weirton Medical Center has a policy
that an employee must report an injury to a supervisor as soon as possible and to Employee
Health within twenty-four hours. Further, Ms. Redish searched the hospital records for the night
of the injury and was unable to find a patient matching Ms. Moodie’s description. The heaviest
patient of record only weighed 211 pounds and was not on a ventilator.

        Inexplicably, the affidavits of Ms. Moodie and Ms. Redish were left off the list of
evidence submitted by the employer. On March 20, 20151, the Office of Judges reversed the
September 12, 2014, claims administrator’s decision rejecting the claim. The Office of Judges
opined that Weirton Medical Center made certain arguments in its closing statements but failed
to include any evidence to corroborate those arguments. The Office of Judges found that the
claim was compensable, citing Ms. Moodie’s affidavit as ultimately being persuasive.

        On March 24, 2015, Weirton Medical Center moved for reconsideration as the affidavits
of Ms. Beatty and Ms. Redish had not been considered. The Office of Judges granted the motion
on May 6, 2015, and the claim returned to litigation. On May 14, 2015, the Office of Judges
vacated its previous Order and affirmed the September 12, 2014, decision of the claims
administrator. The Office of Judges stated that while the affidavit of Ms. Moodie was persuasive,
its evidentiary weight was overcome by the affidavits of Ms. Beatty and Ms. Redish. Ms. Redish
conducted an investigation that showed that no patient matching Ms. Moodie’s description was
on the floor on the night of the alleged injury. When the Office of Judges issued its first order,
the affidavits had not been in evidence and thus were not considered. At that time, Weirton
Medical Center’s closing statement was merely an argument and not evidence. With the
inclusion of the affidavits, Weirton Medical Center’s argument had become more persuasive
than Mr. Decaria’s. The Office of Judges concluded that Mr. Decaria did not suffer a
compensable low back injury on July 7, 2014. The Board of Review adopted the findings of fact
and conclusions of law and affirmed its Order on November 23, 2015.


1
    The May 14, 2015, Office of Judges Order incorrectly lists this date as March 3, 2015.
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        On appeal, Mr. Decaria argues that the affidavits of Ms. Beatty and Ms. Redish should
not be considered because they were not included in a list of evidence submitted by Weirton
Medical Center that was sent out as a courtesy by the Office of Judges. This argument is
unpersuasive. The affidavits were timely submitted and were inexplicably left off the list. It is
within the discretion of the Office of Judges to review the evidence submitted.

       We agree with the reasoning and conclusions of the Office of Judges as affirmed by the
Board of Review. On appeal, Mr. Decaria failed to submit reliable evidence that shows he
suffered an injury that occurred in the course of and as a result of his employment. The affidavits
of Ms. Beatty and Ms. Redish show that Mr. Decaria’s story has many inconsistencies. He failed
to report the injury for an entire month, and an investigation of the hospital records fail to show
there was a patient matching the description given.

        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: October 26, 2016

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




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