                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS
                                                                                      FILED
                                                                                  November 7, 2017
JEREMY YOUNG,                                                                  EDYTHE NASH GAISER, CLERK
Claimant Below, Petitioner                                                     SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA


vs.)   No. 17-0291 (BOR Appeal No. 2051574)
                   (Claim Nos. 2015033842 & 2015034467)

CITY OF BECKLEY,
Employer Below, Respondent

                              MEMORANDUM DECISION
        Jeremy Young was working as a police officer for the City of Beckley when he alleges he
injured his left shoulder on two separate occasions; once while falling on wet tile and once while
shooting his firearm, both during the course of his employment. We are asked to decide whether
this injury was properly found to be non-compensable. We are guided by West Virginia Code §
23-4-1 (2008), which provides that an injury is compensable if it was a personal injury received
in the course of and resulting from employment. After a thorough review of the evidence, we
find that Mr. Young did not sustain a compensable injury in the course of his employment. We
also find, after consideration of the parties’ briefs and evidentiary record, that the decisional
process would not be significantly benefitted by oral argument. We find no substantial question
of law or prejudicial error. Therefore, a memorandum decision is appropriate under Rule 21 of
the Rules of Appellate Procedure.

        Mr. Young alleges that he first injured his left shoulder in the course of his employment
on April 23, 2015, when he slipped and fell on a wet floor. He further alleges that he injured his
shoulder on May 6, 2015, while doing his weapon qualification while on duty. Treatment notes
from Veterans Administration Beckley Medical Center (“Beckley VA”) on May 6, 2015,
indicate Mr. Young was seen for left shoulder and bilateral wrist pain from a fall ten days prior.
X-rays were negative for fractures or breaks. He was diagnosed with sprains in the upper
extremities. A left shoulder MRI showed a small inferior labral tear. X-rays of the left wrist,
right wrist, and left elbow were negative.

         A month later, Mr. Young returned to Beckley VA for left shoulder pain. At that point, he
stated that he was running at his place of work in April, when he stepped on a wet floor, causing
him to slip and fall on his left side. On examination, the left shoulder was tender and range of
motion produced pain. He was diagnosed with left shoulder strain with possible inferior labral
tear. In a report of injury, Mr. Young stated that he injured his left shoulder, left elbow, and both
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wrists on April 23, 2015, when he was entering the school while it was raining. He slipped and
fell on the tile floor. The diagnosis was listed as occupational shoulder strain with possible labral
tear and a wrist injury. A second report of injury indicates Mr. Young injured his shoulder on
May 6, 2015, and stopped working due to that injury one month later. The description of how the
injury occurred was illegible.

        Stephen Jones performed an investigation into Mr. Young’s alleged injuries. Mr. Jones
noted that these injuries were not reported until after a job performance discussion was had with
Mr. Young in which it was suggested he may be reassigned to road patrol. Mr. Jones spoke with
the principal of the school where Mr. Young was working as a resource officer. Principal Pauley
told Mr. Jones that he stands every morning in the area in which Mr. Young alleges he fell and
he never witnessed such an accident. Principal Pauley said that he was not made aware of an
injury until several days later on May 5, 2015, when Mr. Young’s supervisor came to the school
to speak with Mr. Young. Principal Pauley stated that the conversation was not pleasant and
allegedly related to some undesirable work habits. He recalled Mr. Young stating that if he could
not be the resource officer, he would go on medical leave. On May 6, 2015, Mr. Young told
Principal Pauley that he injured his left shoulder at the shooting range. Principal Pauley
reiterated that he did not witness him fall in the hallway and that he did not believe such an
injury occurred.

        Mr. Jones also described a meeting with J.R. Corey, the range officer for the Beckley
Police Department. Mr. Corey was present for the firearms qualifications on May 6, 2015. Mr.
Corey stated that Mr. Young passed his qualifications and never mentioned that his shooting arm
was not well. He did not report an injury at that time. Mr. Jones also met with Chief of Police,
Lonnie Christian. Chief Christian stated that Mr. Young was transferred to routine road patrol in
June of 2015, called in sick for the first week he was scheduled on road patrol, and has since
submitted workers’ compensation claims to include injuries in both April and May. He did not
report the injuries until after he was reassigned. Beckley Police Department conducted an
internal inquiry. Mr. Jones stated that Mr. Young was unable to perform light duty due to his
inability to use a typewriter without pain, but he was observed on video pushing and pulling on
mud-stuck four-wheelers. Finally, Mr. Jones reported a conversation with Mr. Young, where Mr.
Young told him he injured himself in April when he slipped and fell. He stated that several
weeks later he was at a gun range and injured his shoulder. Mr. Young acknowledged that since
the alleged injury he has been able to ride his motorcycle, cut grass, weedeat, and ride his all-
terrain vehicle.

        Yogesh Chand, M.D., was asked to evaluate Mr. Young and stated that he was unsure
which injury to the left shoulder caused the labral tear. He believed that the tear occurred in April
and was then aggravated in May. In light of that, the problem with the left shoulder was
determined to be related to the May injury. The wrist, hands, and elbows were found to be
related to the April injury.

        Mr. Corey stated in an affidavit that he saw Mr. Young arrive and leave for firearm
qualifications. Mr. Young did not mention a shoulder injury, nor did Mr. Corey observe any
physical signs that he was injured. However, after Mr. Young did not perform well, he
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mentioned to another officer that his performance was related to an alleged shoulder injury. Mr.
Corey stated that he believed Mr. Young mentioned the alleged injury to excuse his below
average performance. He said that nothing about his behavior before or during qualifications
suggested he was injured.

        Principal Pauley also completed an affidavit with a transcript of his conversation with
Mr. Jones attached. The principal stated that he did not believe Mr. Young fell at the school in
April. Mr. Young contacted him three weeks later and told him that he was injured while at the
shooting range. His supervisor came to the school and reprimanded Mr. Young for poor
performance. Later that day, Mr. Young told Principal Pauley that if he could not work at the
school, he would go out on medical leave. Mr. Young texted Principal Pauley the next day and
said he injured his shoulder at the shooting range and would not be at work. Principal Pauley said
that every morning he and two teachers stand feet away from the area where Mr. Young
allegedly fell and none of them witnessed the fall.

        Clark McCormick testified in a deposition on that he is a corporal with the Beckley
Police Department. He stated that Mr. Young stood beside him when they did the weapon
qualifications. Mr. Young did not shoot well and told Mr. McCormick that his shoulder was
hurting. However, Mr. McCormick admitted that he saw no signs of injury. Mr. Young testified
in a deposition that he had no symptoms in his left shoulder, elbow, or wrist prior to the April
injury. He stated that it was raining that day and he was hurriedly moving inside the school when
he slipped on a tile and fell. After the injury he performed the rest of his duties that day because
he thought he just stoved his arm. He believed that he told his supervisor, Lieutenant McPeak, of
the alleged April injury prior to the occurrence of the May injury. He stated that at the gun range
on May 6, 2015, he was shooting with his arms extended when he felt a pop in his shoulder
along with tingling, aching, and burning. After he finished shooting he told Mr. McCormick that
he hurt his shoulder. He stated that he went from the gun range directly to Beckley VA. He
stopped working in June. Mr. Young admitted that he took a six hour motorcycle trip to North
Carolina after he stopped working. He also discussed a video of him and some other men trying
to get a four-wheeler out of some mud. He said that he could not perform his job duties because
he could not defend himself, cannot shoot as well now, and cannot do paperwork for more than
ten minutes without his wrists hurting and locking up.

        The claims administrator denied the applications for benefits for both the first and second
injuries. The Office of Judges affirmed the decisions. For the April alleged injury at the school,
the Office of Judges found that the employer submitted enough persuasive evidence to rebut Mr.
Young’s allegation that he sustained a compensable injury in April. For example, Mr. Young
alleged that he slipped on a wet floor because it was raining that day; however, the employer
submitted a weather report that showed no rain on that day. Further, Principal Pauley asserted
that Mr. Young sent him a text message on May 6, 2015, stating his shoulder was injured on the
gun range and he made no mention of an injury at the school. Principal Pauley also stated that
prior to Mr. Young reporting an injury, his supervisor came to the school to discuss his poor job
performance and reassignment to road patrol. He stated that Mr. Young told him at that time that
if he were reassigned, he would go out on medical leave. Finally, he asserted that he and several
teachers stand in the area where he allegedly fell and he never witnessed a fall. The Office of
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Judges further found that Mr. Young’s activities after he stopped working were inconsistent with
an individual who was unable to perform light work, including typing. Mr. Young testified that
he rode his motorcycle on a six hour trip to North Carolina, and he also admitted to all-terrain
vehicles activities, including helping to get a four wheeler unstuck from mud.

        For the May alleged injury at the gun range, the Office of Judges determined that a
preponderance of the evidence does indicate Mr. Young has a labral tear in his left shoulder. He
alleges that he raised his gun to fire and felt a pop in his shoulder. The injury report alleges that
he sustained a new left shoulder injury. In support, Mr. Young submitted the testimony of Mr.
McCormick; however, an affidavit by Mr. Corey, the gun range officer, stated that he did not
witness an injury, nor was he told of one. The Office of Judges concluded that the mechanism of
injury is inconsistent with a person sustaining a labral tear. Mr. Young’s testimony also suggests
he did not sustain a new injury in May. He stated that he visited the hospital on that day because
he had fallen previously and his shoulder was still hurting so he thought he may have seriously
injured it. The Office of Judges held that the claimant did not sustain a new injury in May. In
summary, the Office of Judges found that a preponderance of the evidence indicates Mr. Young
did not sustain a compensable injury in either April or May. The Board of Review adopted the
findings of fact and conclusions of law of the Office of Judges and affirmed its Order.

        On appeal before this Court, Mr. Young argues that he proved by a preponderance of the
evidence that he was injured on two separate occasions. He asserts that he sustained a labral tear
of the left shoulder and there is no other explanation in the record other than the injuries in April
and May. He further argues that though he did not report his April slip and fall injury to Principal
Pauley, the principal is not his boss and he would have no reason to inform him of an injury. The
City of Beckley argues that the evidence shows Mr. Young did not sustain injuries in either April
or May. It further asserts that the evidence shows he had a problematic shoulder prior to the
alleged injuries.

        After review of the evidentiary record and the parties’ arguments, we agree with the
reasoning and conclusions of the Office of Judges as affirmed by the Board of Review. A
preponderance of the evidence indicates that Mr. Young did not fall at the school on April 23,
2015. There were no witnesses to the injury, he did not report the injury to anyone, and there are
inconsistencies in his version of the events and the evidence of record. A preponderance of the
evidence also indicates he was not injured on May 6, 2015, as the act of lifting a fire arm is not
consistent with sustaining a labral tear. We therefore 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.




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                                        Affirmed.

ISSUED: November 7, 2017


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




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