                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
HASKEL BOYTEK,                                                                 September 12, 2013
                                                                             RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                 SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

vs.)   No. 11-1730 (BOR Appeal No. 2045908)
                   (Claim No. 2010101821)

WEST VIRGINIA DIVISION OF ENVIRONMENTAL PROTECTION,
Employer Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Haskel Boytek, by Wendle Cook, his attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. West Virginia Division of Environmental
Protection, by H. Toney Stroud, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated November 22, 2011, in
which the Board affirmed an April 14, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 12, 2009,
decision denying Mr. Boytek’s application for workers’ compensation benefits. 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. Boytek works as a mine inspector for the West Virginia Division of Environmental
Protection. He alleges that as a result of his employment he has suffered an injury to his back. On
August 12, 2009, the claims administrator denied Mr. Boytek’s application for workers’
compensation benefits, because there was no information indicating that the back condition
resulted from an injury which occurred in the course of and resulting from Mr. Boytek’s
employment.

        In affirming the claims administrator’s decision, the Office of Judges held that there was
insufficient evidence to show that Mr. Boytek’s back condition was caused by either cumulative
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trauma or an isolated fortuitous event and trauma on May 17, 2009. On appeal, Mr. Boytek
argues that he suffered both a new injury and an aggravation of a prior condition that arose out of
his employment when he slipped and fell climbing up and down mountainous terrain on June 17,
2009. The West Virginia Division of Environmental Protection maintains that there was no
work-related injury, but rather Mr. Boytek was off work for complication of diabetes, and
decided to file a workers’ compensation claim when a radiological report showed degenerative
changes with a herniation.

         The Office of Judges held that the evidence does not support Mr. Boytek’s allegations
that he suffered a cumulative trauma causing the compensable injury, or that there was an
isolated fortuitous event and trauma on May 17, 2009, causing the compensable injury. It noted
that it is unclear from Mr. Boytek’s testimony and report of injury as to whether he alleges a
cumulative trauma or an actual date of injury being May 17, 2009. It is also of note that Mr.
Boytek argues June 17, 2009, as a date of injury in his petition for appeal yet he testified as the
date of injury being on or around May 17, 2009. The Office of Judges noted that diagnostic
testing indicates multilevel degenerative changes in his spine, and that no medical evidence
shows there has been a cumulative effect of non-injurious falls over the years. Thus, the Office
of Judges found that the claims administrator was correct to deny the application for workers’
compensation benefits. The Board of Review reached the same reasoned conclusions in its
decision of November 22, 2011. 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 12, 2013

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

DISSENTING:
Justice Menis E. Ketchum




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