                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               April 2, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
TOMMY GRALEY,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-1134 (BOR Appeal No. 2046822)
                   (Claim No. 2011008751)

WINCHESTER MINE, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Tommy Graley, appearing pro se, appeals the decision of the West Virginia
Workers’ Compensation Board of Review. Winchester Mine, LLC, appearing pro se filed a
timely response.

        This appeal arises from the Board of Review’s Final Order dated August 27, 2012, in
which the Board affirmed a December 23, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s November 23,
2010, decision holding the claim compensable for left knee sprain/strain and denying Mr.
Graley’s request to add the left shoulder strain as a compensable component. 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. Graley worked as a foreman/fire boss for Winchester Mine, LLC when he fell on
loose coal and twisted his left knee. The claim was held compensable for left knee strain/sprain.
Prasadarao B. Mukkamala, M.D., concluded that Mr. Graley’s left shoulder was not injured in
the course of or as a result of his employment on September 2, 2010. Jason M. Prigozen, M.D.,
opined that the symptomology and pathology are consistent with an acute injury as described by
Mr. Graley from a fall at his work and that he did not believe that the shoulder symptoms could
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be related to any sort of chronic or preexisting condition. David Felder, M.D., determined that
based on the findings he could not relate the left shoulder injury to Mr. Graley’s fall on
September 2, 2010. The claims administrator held the claim compensable for left knee
sprain/strain and denied compensability for the left shoulder strain.

        The Office of Judges affirmed the claims administrator’s decision and held that Mr.
Graley did not injure his left shoulder in the course of or as a result of his employment,
specifically in relation to the September 2, 2010, occupational injury. On appeal, Mr. Graley
disagrees and asserts that Dr. Prigozen’s report is persuasive and supports his left shoulder injury
occurring on September 2, 2010, and that his left shoulder injury should have been held
compensable. Winchester Mine, LLC maintains that the reliable, credible, and probative
evidence fails to establish a causal connection between the development of Mr. Graley’s left
shoulder pain occurring in late September of 2010 and his left knee injury occurring on
September 2, 2010.

         The Office of Judges concluded that the preponderance of the evidence shows that Mr.
Graley did not injure his left shoulder in the course of or as a result of his employment. Mr.
Graley suffered a left knee injury on September 2, 2010, and there is no mention of the left
shoulder injury until September 27, 2010. Dr. Felder concluded that he could not link Mr.
Graley’s left shoulder findings to a fall that occurred five weeks earlier. Dr. Mukkamala opined
on December 30, 2010, that neither Mr. Graley’s left shoulder nor his right shoulder was injured
in the course of and as a result of his employment. The Office of Judges determined that there
was no medical evidence persuasively linking Mr. Graley’s left shoulder injury to his left knee
injury other than Mr. Graley reporting to his physicians that his left shoulder was injured when
his left knee buckled. The Office of Judges concluded that Mr. Graley failed to meet his burden
of proof to show that his left shoulder injury occurred in the course of and as a result of his
employment. The Office of Judges held that Mr. Graley did not injure his left shoulder in the
course of or as a result of his employment in relation to the September 2, 2010, occupational
injury. The Board of Review reached the same reasoned conclusions in its decision of August 27,
2012. 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: April 2, 2014

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