                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                            September 18, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
COLLEEN MOORE,                                                                OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0805	 (BOR Appeal No. 2048027)
                   (Claim No. 2012033974)

CABELA’S INC.,

Employer Below, Respondent



                             MEMORANDUM DECISION
       Petitioner Colleen Moore, by Jonathan Bowman, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Cabela’s Inc., by Mark Grigoraci, its
attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated July 3, 2013, in which
the Board affirmed a December 19, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s April 30, 2012, decision
rejecting Ms. Moore’s claim 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.

       Ms. Moore alleges that she injured her right wrist in the course of her employment on
April 17, 2012. On the alleged date of injury, Ms. Moore sought treatment with Cabela’s on-site
health services department, and signed a non-work-related injury report that listed her current
complaint as “right wrist, no injury” and noted that she was experiencing some swelling in the
right wrist. On April 23, 2012, Ms. Moore sought treatment in Wheeling Hospital’s emergency
department and stated that she injured her right wrist at work on April 17, 2012. Also on April
23, 2012, Ms. Moore completed a work-related incident form stating that she injured her right
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wrist on April 17, 2012, while lifting a box of ammunition. On April 30, 2012, Heather Gibbons,
FNP-BC, completed a disability status form and indicated that Ms. Moore sustained a non-
occupational wrist injury. Also on April 30, 2012, the claims administrator rejected Ms. Moore’s
claim for workers’ compensation benefits.

        On May 3, 2012, Ms. Moore sought treatment with Leah Jones, D.O. Ms. Moore reported
injuring her right wrist on April 17, 2012, while lifting a box at work and stated that she
experienced immediate shooting pain through her right hand. Ms. Moore also sought treatment
with Michael Zilles, M.D., who noted on June 21, 2012, that Ms. Moore’s right wrist pain has
been ongoing for several months with a gradual onset. On August 14, 2012, Ms. Moore was
deposed and testified that on April 17, 2012, she reported sustaining a work-related injury while
being treated at Cabela’s health services department. On August 15, 2012, Janie Meintel, an
emergency medical technician and administrative assistant in the department of health services at
Cabela’s, was deposed and testified that on April 17, 2012, Ms. Moore sought treatment for right
wrist pain, but very clearly stated that a work-related injury did not occur. On September 25,
2012, Mindy Vargo, the health and safety manager at Cabela’s, authored an affidavit. She also
indicated that although Ms. Moore sought treatment for right wrist pain on April 17, 2012, she
did not report her condition as being work-related. Additionally, Ms. Vargo indicated that Ms.
Moore never reported an injury to her supervisor, as is required by company policy, and the
incident was initially reported to Ms. Moore’s supervisor by the department of health services on
April 23, 2012, when Cabela’s became aware that Ms. Moore had filed a claim for workers’
compensation benefits.

        In its Order affirming the April 30, 2012, claims administrator’s decision, the Office of
Judges held that Ms. Moore did not sustain a work-related injury on April 17, 2012. Ms. Moore
disputes this finding and asserts that the evidence of record demonstrates that she sustained an
injury in the course of her employment on April 17, 2012.

        The evidentiary record reveals multiple inconsistencies in Ms. Moore’s accounting of
whether a work-related injury did or did not occur on April 17, 2012. Moreover, the record
reveals that Ms. Moore has sought treatment for non-work-related right wrist pain and swelling
on and off beginning as early 2006. The evidentiary record also reveals that Ms. Moore sought
treatment at Cabela’s health services department for non-work-related pain and swelling in the
right wrist four months before the alleged date of injury. As noted by the Office of Judges, two
medical providers at Ms. Moore’s place of employment testified that she reported her right wrist
pain on the date of the alleged injury as non-work-related. Further, the Office of Judges noted
that on the date of the alleged injury, Ms. Moore signed a non-work-related injury report
specifically noting that an injury did not occur. The Office of Judges concluded that the record
contains insufficient evidence to establish that Ms. Moore’s right wrist condition present on
April 17, 2012, is attributable to her employment. The Board of Review affirmed the conclusions
of the Office of Judges in its decision of July 3, 2013. We agree with the 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
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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 18, 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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