                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                                May 7, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
JEFFERY W. HACKENBERG,                                                        OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0692	 (BOR Appeal No. 2049166)
                   (Claim No. 2014013378)

JAG COAL SERVICES, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Jeffery W. Hackenberg, by John Shumate Jr., his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. JAG Coal Services, LLC, by
Robert Busse, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated July 1, 2014, in which
the Board affirmed a January 29, 2014, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s October 10, 2013, decision
rejecting Mr. Hackenberg’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.

        On September 12, 2013, Mr. Hackenberg sought treatment in Raleigh General Hospital’s
emergency department for back pain arising from an alleged fall in the course of his employment
that occurred approximately one month prior and was diagnosed with a lumbosacral
sprain/strain. Also on September 12, 2013, Mr. Hackenberg filed a Report of Injury alleging that
he sustained injuries to his lower back, left hip, and left lower extremity on August 13, 2013,
when he slipped and fell in mud. On October 10, 2013, the claims administrator rejected his
application for workers’ compensation benefits.
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       Mr. Hackenberg testified at a hearing before the Office of Judges on December 20, 2013,
and stated that following the alleged incident, he immediately reported the incident via a two-
way radio. He further testified that he discussed the injury with two co-workers during a
scheduled break. Finally, he testified that he did not seek immediate medical care because he
hoped that the injury would resolve spontaneously, although he alleges that he experienced
ongoing pain. Aaron Stowers, co-owner of JAG Coal Services, also testified before the Office of
Judges on December 20, 2013. Mr. Stowers testified that the company was unaware of the
alleged injury until Mr. Hackenberg sought medical treatment on September 12, 2013.

        In its Order affirming the October 10, 2013, claims administrator’s decision, the Office of
Judges held that the preponderance of the evidence fails to establish that Mr. Hackenberg
sustained a compensable injury on August 13, 2013. The Board of Review affirmed the
reasoning and conclusions of the Office of Judges in its decision dated July 1, 2014. On appeal,
Mr. Hackenberg asserts that the evidence of record demonstrates that he sustained a lumbosacral
sprain in the course of his employment on August 13, 2013.

        The Office of Judges determined that based upon the evidence of record, Mr. Hackenberg
has failed to sustain his burden of proof. The Office of Judges noted that although Mr.
Hackenberg sought treatment from his family physician six days after the alleged date of injury,
he failed to mention either the alleged injury or his ongoing lower back pain. Further, the Office
of Judges found that despite Mr. Hackenberg’s testimony that he experienced ongoing
considerable pain as a result of the alleged injury, he made no attempt to notify JAG Coal
Services of the injury and continued to work his regularly scheduled shifts. Additionally, the
Office of Judges found that Mr. Hackenberg failed to offer a reasonable explanation regarding
why he failed to give JAG Coal Services proper notification of the alleged injury. Finally, the
Office of Judges concluded that Mr. Hackenberg’s failure to timely report the alleged injury and
failure to seek medical treatment during the month following the alleged injury have diluted his
allegation that he sustained an injury in the course of his employment on August 13, 2013. We
agree with the reasoning and conclusions of the Office of Judges as affirmed by 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: May 7, 2015

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




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