                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                                June 27, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
FRANK R. SAVAGE,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0226 (BOR Appeal No. 2047245)
                   (Claim No. 2011041968)

CHAPLIN CONSTRUCTION, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
      Petitioner Frank R. Savage, by William C. Gallagher, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Chaplin Construction, Inc., by
George E. Roeder, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated December 5, 2012, in
which the Board affirmed a May 18, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 5, 2011,
decision which rejected 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. Savage, a mason, alleges he was injured in the course of his employment on April 15,
2011, when he was climbing off of scaffolding, lost his grip, and his right leg dropped to the
concrete. He testified in a September 14, 2011, deposition that he did not begin to feel pain until
a few days later. He stated that there were no witnesses to the accident and that he had never had
any previous back problems. Mr. Savage was treated by William Mitchell, M.D., two days after
the alleged accident and eventually diagnosed with a herniated lumbar disc and radiculopathy.


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        The claims administrator rejected the claim on July 5, 2011, stating that the disability
complained of was not due to an injury or disease received in the course of and resulting from
employment. The Office of Judges affirmed that decision in its May 18, 2012, Order. It found
that Mr. Savage testified he had no prior back complaints. However, the record shows that he has
a history of back pain. He was diagnosed with mechanical low back pain on January 2, 2000. On
January 3, 2002, he presented to West Virginia University Hospital’s emergency room after a
motor vehicle accident and complained of lower back and cervical pain. Lastly, Dr. Mitchell’s
August 27, 2004, treatment note states that Mr. Savage was seen for lower back pain. The Office
of Judges noted that Dr. Mitchell testified in a January of 2012 deposition that he had never
treated Mr. Savage for lower back pain.

        Mr. Savage only worked for Chaplin Construction, Inc., for nine days before his alleged
injury. Though he testified that he did not make statements to co-workers that he had prior back
problems, the Office of Judges found that affidavits from Kevin Chaplin and Rick Richmond
contradict that assertion. Mr. Chaplin, the site superintendent, stated that Mr. Savage informed
him he would not be able to work much because of his back. Mr. Chaplin related this to Mr.
Richmond, a manager. The Office of Judges also found that a statement by Terry Edwards, Mr.
Savage’s co-worker, was contradicted by Mr. Savage’s own testimony. Mr. Edwards stated that
he saw Mr. Savage jump off of the scaffolding on the date of the alleged injury; however, Mr.
Savage testified that there were no witnesses to the accident. Also, Mr. Edwards asserted that
Mr. Savage picked him up for work the next day and informed him that his back and leg were
hurting. The Office of Judges found, however, that Mr. Savage testified the following day was a
Saturday and he did not work on weekends.

        It was found that Dr. Mitchell mentioned twice in his April 17, 2011, treatment note that
the alleged accident occurred two weeks prior rather than two days prior as Mr. Savage asserts.
Dr. Mitchell stated in an October of 2011 letter that the treatment note was incorrect and he
remembered that Mr. Savage reported that the accident happened forty-eight hours prior. In his
deposition, Dr. Mitchell was asked why his treatment note stated that the pain began several days
after the alleged injury. When asked how the history of delayed onset of pain could be correct if
the alleged injury happened only two days prior, Dr. Mitchell stated that it was possible the pain
did not start until the day he saw Mr. Savage. The Office of Judges found that if that was the
case, the treatment note would indicate that the pain started on that date, April 17, 2011. Lastly,
the Office of Judges noted that Mr. Savage did not file a report of injury until June 30, 2011, at
which point Kevin Trembush, D.C., completed the physician’s section. By that time, Mr. Savage
had been treated by at least three other physicians, including his treating physician, Dr. Mitchell.
The Office of Judges found it questionable why none of those physicians completed the report.

       The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its December 5, 2012, decision. This Court agrees with the
reasoning and conclusions of the Board of Review. The evidentiary record fails to show that Mr.
Savage sustained an injury in the course of and resulting from his employment.

        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: June 27, 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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