                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                                July 9, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
FRANKLIN L. VANNOY,                                                           OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-1067	 (BOR Appeal No. 2049357)
                   (Claim No. 2013024315)

S & E CLEARING & HYDROSEEDING, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Franklin L. Vannoy, by Anne Wandling, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. S & E Clearing & Hydroseeding,
LLC, by Matthew Williams, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated September 23, 2014, in
which the Board affirmed a March 27, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s February 28, 2013,
decision rejecting the petitioner’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.

        The petitioner alleges that he injured himself when he slipped while repairing a piece of
heavy machinery and fell a distance of approximately four to five feet, landing on his back. On
January 31, 2013, he filed a Report of Injury listing the date of injury as October 3, 2012, which
was signed by Robert Lowe, M.D. Dr. Lowe indicated that he first treated the petitioner in
relation to the alleged injury on October 9, 2012.


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         A letter dated October 3, 2012, and signed “Josh Jones, Foreman” was submitted in
support of the petitioner’s claim. The letter states that the petitioner was injured while repairing
an excavator when he slipped, fell a distance of four to five feet, and landed on his back. The
letter then indicates that because the petitioner experienced difficulty with his right leg giving out
the following day, he was instructed not to return to work until he obtained clearance to do so
from a physician.

        Richard Hall investigated the circumstances surrounding the alleged injury on behalf of
the claims administrator. During the course of his investigation, he interviewed Diann Hannah,
who is employed in a managerial position with S & E Clearing & Hydroseeding; Christopher
“Josh” Jones, employed by S & E Clearing & Hydroseeding as a mechanic; Randall Mapes, who
was the petitioner’s direct supervisor; Bobby Daugherty, who is employed as a heavy equipment
operator with S & E Clearing & Hydroseeding; and the petitioner. Mr. Hall conducted all five
interviews on February 14, 2013.

        Ms. Hannah stated to Mr. Hall that the petitioner was hired by S & E Clearing &
Hydroseeding in the early summer of 2012 as a mechanic. She then stated that the petitioner’s
last documented date of employment was September 1, 2012, but noted that the petitioner
reported his injury as occurring on October 3, 2012. Ms. Hannah then opined that the signature
on the letter purporting to be written by “Josh Jones” does not match the known signature of Mr.
Jones contained in his personnel file and further stated that Mr. Jones personally told her that he
did not write the letter allegedly bearing his signature.

         The petitioner reported to Mr. Hall that he is certain that he was not injured on October 3,
2012, and stated that he now believes that the alleged injury occurred in either August of 2012 or
September of 2012. The petitioner then stated that he initially reported the date of injury as
October 3, 2012, because Mr. Jones, his coworker, reported to him that October 3, 2012, was the
correct date of injury. Further, the petitioner stated that both Mr. Jones and Mr. Daugherty
witnessed the incident. Additionally, the petitioner reported to Mr. Hall that he requested a letter
from Mr. Jones describing the alleged injury and further reported that he received the requested
letter in the mail and submitted it to the claims administrator as evidence.

        Mr. Jones reported to Mr. Hall that he is also known by the name “Josh Jones” but that he
routinely signs all documents as “Christopher J. Jones”. He then stated that the petitioner never
requested that Mr. Jones vouch for him regarding a work-related injury and further stated that
Mr. Jones did not write nor sign the letter dated October 3, 2012, allegedly bearing Mr. Jones’s
signature. Further, Mr. Jones stated that he was unaware that the petitioner had ever suffered a
work-related injury. Additionally, Mr. Daugherty reported to Mr. Hall that he never witnessed
the petitioner sustain a work-related injury and never heard the petitioner mention that he
sustained a work-related injury. Finally, Mr. Mapes reported to Mr. Hall that the petitioner never
reported sustaining a work-related injury to any of his supervisors.

        The claims administrator rejected the petitioner’s application for workers’ compensation
benefits on February 28, 2013, based upon a finding that an investigation of the alleged injury
revealed sufficient inconsistencies and contradictions to conclude that a work-related injury did
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not occur. The petitioner testified in a hearing before the Office of Judges on June 11, 2013, and
once again stated that he was injured in the course of his employment when he slipped while
repairing an excavator. He reiterated his prior assertion that Mr. Jones and Mr. Daugherty were
both witnesses to the alleged incident.

        In its Order affirming the February 28, 2013, claims administrator’s decision, the Office
of Judges held that the petitioner has failed to demonstrate that he sustained an injury in the
course of and resulting from his employment. The Board of Review affirmed the reasoning and
conclusions of the Office of Judges in its decision dated September 23, 2014. On appeal, the
petitioner asserts that the evidence of record demonstrates that he sustained an injury in the
course of his employment with S & E Clearing & Hydroseeding, LLC.

        The Office of Judges found that the evidence of record demonstrates that the petitioner
was not employed with S & E Clearing & Hydroseeding on the initially reported date of injury,
namely October 3, 2012. The Office of Judges further found that the evidence of record does not
provide clear evidence establishing that the petitioner sustained an injury in either August of
2012 or September of 2012. Further, the Office of Judges noted that evidence received from the
petitioner’s treating physician, Dr. Lowe, indicates that the petitioner reported sustaining an
injury after falling from a piece of heavy equipment, but Dr. Lowe does not specify when the
alleged injury occurred.

        Moreover, the Office of Judges noted that the claim is fraught with inconsistencies
concerning not only the alleged date of injury, but also the circumstances surrounding the alleged
injury. Specifically, the Office of Judges noted that although the petitioner identified Mr. Jones
and Mr. Daugherty as witnesses to the alleged incident, both denied ever witnessing the
petitioner sustain a work-related injury. Finally, the Office of Judges concluded that Mr. Hall’s
investigation reveals that the “Josh Jones” letter provided to the claims administrator is a forgery,
as was confirmed by Mr. Jones’s own statements. We agree with the reasoning and conclusions
of the Office of Judges as affirmed by the Board of Review. The evidence of record fails to
establish that the petitioner sustained an injury in the course of and resulting from his
employment with S & E Clearing & Hydroseeding, LLC.

        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: July 9, 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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