                                     STATE OF WEST VIRGINIA

                                  SUPREME COURT OF APPEALS
                                                                                                       FILED
                                                                                                  October 10, 2017
URS ENERGY AND CONSTRUCTION,                                                                   RORY L. PERRY II, CLERK
Employer Below, Petitioner                                                                   SUPREME COURT OF APPEALS
                                                                                                 OF WEST VIRGINIA


vs.)       No. 17-0063 (BOR Appeal No. 2051369)
                       (Claim No. 2015034124)

JODY MCCARTNEY,
Claimant Below, Respondent


                                     MEMORANDUM DECISION
       Petitioner URS Energy and Construction, by Jeffrey B. Brannon, its attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review.1

        The issue on appeal is whether the injuries suffered by Mr. McCartney on February 2,
2015, are compensable. On August 20, 2015, the claims administrator issued an Order rejecting
the claim and determined that Mr. McCartney did not suffer a compensable work injury. On May
27, 2016, the Workers’ Compensation Office of Judges affirmed the claims administrator’s
rejection of the claim on the basis that it was not timely filed and on the basis that the claimant
did not establish that he sustained a work-related injury on February 2, 2015. This appeal arises
from the Board of Review’s Final Order dated December 26, 2016, in which the Board reversed
and vacated the May 27, 2016, Order of the Office of Judges. The Board found that the claim
was timely filed and remanded the case to the Office of Judges with instructions to consider
additional evidence and issue a ruling on the merits of the compensability 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.


1
    Mr. McCartney was represented by counsel during litigation, but not on appeal before this Court.
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        Mr. McCartney alleges that he suffered injuries while working for URS Energy and
Construction, when he slipped and fell on untreated ice on February 2, 2015. At the time of his
injury, he sought treatment at Preston Healthcare Services. Prior to his injury, Mr. McCartney
underwent x-rays on his right wrist on February 1, 2015, which showed no acute bony
abnormalities.

        Mr. McCartney was seen by Nick Zervos, M.D., on April 14, 2015. In his office note, Dr.
Zervos referenced an injury to Mr. McCartney’s right shoulder and wrist when he fell on black
ice in February. He also noted that Mr. McCartney had a recent MRI of both areas and x-rays
showed a right scapholunate ligament rupture and a right shoulder spinatus partial thickness tear
with posterior labral cyst off the labral tear. Dr. Zervos conducted shoulder surgery on April 22,
2015.

       On June 29, 2015, the claims administrator issued a Deferred Compensability Decision
and explained, “After a review of your accident report we cannot determine your claim to be
compensable until receipt of full medical records from the treating physicians and facilities are
obtained. Once evidence is submitted a review for compensability can be made. If no evidence is
received within 60 days your claim will be denied.” In response to the claims administrator’s
decision, Mr. McCartney returned a signed medical release authorization form.

       By Order dated August 20, 2015, the claims administrator denied Mr. McCartney’s
application for benefits and determined there was no evidence that the alleged injuries had been
sustained in the course of and resulting from his employment. Mr. McCartney protested the
claims administrator’s decision.

        On May 27, 2016, the Office of Judges affirmed the claims administrator’s Order, which
denied the claim for two reasons. The Office of Judges found that Mr. McCartney failed to
establish that he sustained an injury in the course of and as a result from his employment. The
Office of Judges also concluded that the claim was barred by the applicable statute of limitations
because an Employees and Physicians Report Form (WC-1) had not been filed by Mr.
McCartney. The Office of Judges concluded that the evidence of record does not sufficiently
show that Mr. McCartney’s medical conditions originated from an injury that occurred on
February 2, 2015. Mr. McCartney appealed to the Board of Review.

        In a letter dated September 21, 2016, the Board of Review notified Mr. McCartney that
the Board was unable to accept new evidence except in support of a Motion to Remand. Mr.
McCartney had submitted a September 15, 2016, report from Robin Goodwin, FNP-BC, of
Preston Healthcare Services. Because the Board can only accept new evidence in support of a
motion to remand, the Board considered Mr. McCartney’s new evidence as a Motion to Remand
the claim to the Office of Judges for the submission of additional evidence.

       On December 22, 2016, the Board of Review reversed the Decision of the Office of
Judges and found that Mr. McCartney’s claim was timely filed. The Board remanded the claim
with instructions to consider additional evidence and issue a ruling on the merits of the
compensability of the claim. The Office of Judges was specifically instructed to issue a new time
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frame order to allow additional evidence and consider the September 15, 2016, report from
Preston Healthcare Services.

        In her September 16, 2016, report, Ms. Goodwin confirmed that Mr. McCartney was seen
by Preston Healthcare Services in February of 2015, for an injury that occurred at work. Ms.
Goodwin explained that the provider that saw Mr. McCartney for his initial visit did not
document that it was a workers’ compensation claim. The report documents that Mr. McCartney
had slipped and fallen on company property on ice while carrying an arm load of supplies on
February 2, 2015. Given the submission of Mr. McCartney’s new evidence, which was accepted
by the Board of Review in consideration of a motion to remand, we agree with the decision of
the Board of Review. From the beginning of the claim, Mr. McCartney has asserted that he
suffered an injury on a work-related basis on February 2, 2015, and sought medical treatment for
his injuries. The Board of Review did not err in remanding the claim for a full and complete
development of the facts in this case.

        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 10, 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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