                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             February 4, 2016
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
TIMOTHY A. MORGAN,                                                            OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0880 (BOR Appeal No. 2049192)
                   (Claim No. 2014000161)

HENDRICKS COAL, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Timothy A. Morgan, by Reginald D. Henry, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Hendricks Coal, LLC, by T.
Jonathan Cook, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated August 6, 2014, in
which the Board affirmed a February 7, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s November 8, 2013,
decision rejecting the 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.

        Mr. Morgan, an equipment operator for Hendricks Coal, LLC, alleged that on June 18,
2013, he sustained an occupational injury to his left knee. On June 24, 2013, Mr. Morgan sought
treatment for back pain from the Gilbert Health Center. Mr. Morgan represented that he had
experienced back problems for a few days which he attributed to an injury he sustained in the
early 1990’s. He indicated that he had missed work on the Friday before. He complained of
problems with sleeping and had experienced non work-related stressors. Mr. Morgan was
prescribed Motrin 800 mg, Kenalog 40 mg, Medrol Dosepak, and Xanax 0.05 mg. On June 26,
2013, the foreman’s report of accident was filed. It reflected that Mr. Morgan twisted his left
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knee while climbing off a loader and placing his foot on an uneven surface. It also advised that
there were no witnesses and Mr. Morgan did not notify his foreman until the time of the report.
On June 27, 2013, the employer completed a report of occupational injury. On June 28, 2013,
Mr. Morgan sought treatment for his left knee at Welch Community Hospital. He reported that
he had injured his left knee at work. The x-ray examination did not reveal evidence of a fracture
or dislocation. No joint effusion was noted and the only positive finding was for mild
degenerative changes. Mr. Morgan was given a brace for his left knee and discharged.

        On July 7, 2013, Mr. Morgan sought treatment from Welch Community Hospital for pain
in the right knee which he ascribed to an injury of June 18, 2013. Mr. Morgan’s right knee was
referenced three times in the two-page report and an illustration of his complaints of pain clearly
shows the right knee as the area of concern. However, another record from Welch Community
Hospital for the same day reflects that Mr. Morgan complained of left knee pain. Mr. Morgan
completed an injury report on June 28, 2013, re-alleging that he had sustained an injury to his
left knee while at work. The physician’s portion of the application was completed on July 8,
2013, by a representative of Welch Community Hospital. Mr. Morgan was diagnosed as having
sustained a left knee sprain. On November 6, 2013, Mr. Morgan introduced an affidavit signed
by him. It alleged that he had sustained a left knee injury on June 18, 2013. He indicated that he
finished his shift and worked modified duty the next two days. He indicated that he had taken
June 21, 2013, off as a paid day and rested over the weekend. He indicated that on June 24, 2013,
a Monday, he limped through work. On Tuesday he was asked why he was limping and told the
personnel manager that he was trying to manage the pain until his vacation. The personnel
manager advised him this did not conform to company policy. Mr. Morgan took sick days the
next two days and went to Welch Community Hospital on June 28, 2013. The claims
administrator denied Mr. Morgan’s claim for compensation on November 8, 2013.

        Mr. Morgan testified that Tony Varney was a potential witness to his incident of injury of
June 18, 2013. Mr. Morgan indicated it was his understanding that Mr. Varney had notified his
shift boss Chris Ford, of the injury. Mr. Morgan confirmed that between June 18, 2013, and June
28, 2013, he had gone to a family clinic for back pain. Mr. Morgan testified that he had also
informed Chris Ford of his injury prior to June 28, 2013. Mr. Morgan indicated that he originally
was not interested in completing an incident report but during the 4th of July weekend, his
condition deteriorated.

         The Office of Judges determined that Mr. Morgan was not injured in the course of and as
a result of his employment with Hendricks Coal, LLC. The Office of Judges was not persuaded
by Mr. Morgan’s testimony because some of his responses were implausible or contradicted by
the record. The Office of Judges explained that Mr. Morgan alleged there was a witness to the
injury. However, the alleged witness did not testify or submit any affidavits. Mr. Morgan
testified he was on modified work for two days at the direction of his foreman, which was also
uncorroborated. In addition, Mr. Morgan testified that he sought medical treatment from Gilbert
Health Center on June 24, 2013. At Gilbert Health Center, Mr. Morgan complained of insomnia
and low back pain but not knee pain. Mr. Morgan was asked to explain why he did not mention
to the representative of Gilbert Health Center that he had a left knee injury. He stated that the
facility did not treat workers’ compensation claims. The Office of Judges opined that his
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explanation was implausible because health care providers normally request updated medical
histories notwithstanding whether the facility would treat the problem. The Office of Judges also
noticed discrepancies in Mr. Morgan’s medical history. Mr. Morgan visited Welch Community
Hospital on July 7, 2013, which was after his alleged injury. The Office of Judges recognized the
record reflected he sought treatment for his right knee instead of the left knee he allegedly
injured at work. The Office of Judges found that the report refers to Mr. Morgan’s right knee as
opposed to his left knee in three separate places and that an illustration clearly identifies Mr.
Morgan’s right knee as the injured body part. The Office of Judges further found that this
anomaly was not otherwise explained. Furthermore, the Office of Judges found that the record
was clear that Mr. Morgan did not notify Hendricks Coal, LLC, by any written notice of his
injury until June 28, 2013. The Office of Judges also noted that Mr. Morgan did not seek
treatment until such time. Based upon the unconvincing testimony, that fact that he waited to
report the injury or seek treatment, and the presence of medical records indicating it was his right
knee that was injured, the Office of Judges concluded he was not injured in the course of and as a
result of his employment. The Board of Review adopted the findings of the Office of Judges and
affirmed its Order.

        We agree with the consistent decisions of the Office of Judges and Board of Review. Mr.
Morgan’s testimony was not persuasive. Mr. Morgan did not introduce credible evidence
explaining why his witness did not testify or submit an affidavit. Mr. Morgan did not adequately
justify why he did not tell Gilbert Health Center about the alleged left knee injury he sustained
six days earlier. Mr. Morgan did explain why Welch Community Hospital treated his right knee
as opposed to his allegedly injured left knee. Furthermore, Mr. Morgan did not seek medical
treatment or report his injury in a timely fashion. Because the majority of the evidence weighed
in favor of a finding that a compensable injury did not occur, the Office of Judges and Board of
Review were not in error for denying his claim.

        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: February 4, 2016

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



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