                             STATE OF WEST VIRGINIA                                FILED
                                                                               November 1, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
                          SUPREME COURT OF APPEALS                            OF WEST VIRGINIA


JACK LEE BISHOP,
Claimant Below, Petitioner

vs.)   No. 11-1734 (BOR Appeal No. 2046048)
                   (Claim No. 2011033117)


WEST VIRGINIA MINE POWER, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION

       Petitioner Jack Lee Bishop, by Reginald Henry, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. West Virginia Mine Power, Inc., by
Steven Wellman, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated November 22, 2011, in
which the Board reversed a June 10, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s March 1, 2011,
decision and held the claim compensable for a cervical and thoracic strain. 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. Bishop was working for West Virginia Mine Power when he fell out of a mantrip and
injured his neck and back on January 26, 2011. On March 1, 2011, the claims administrator
rejected the claim for workers’ compensation benefits. The Office of Judges reversed the claims
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administrator’s decision, and held the claim compensable for a cervical strain and thoracic strain
on June 10, 2011.

        The Board of Review reversed the Office of Judges’ Order, and reinstated the claims
administrator’s decision of March 1, 2011, rejecting the claim for workers’ compensation
benefits. On appeal, Mr. Bishop argues that the Board of Review was wrong to reverse the
Office of Judges’ Order, as the evidence clearly establishes that he was injured while performing
his duties in the course of his employment. West Virginia Mine Power maintains that the
evidence does not establish that there was an occupational injury, but rather that Mr. Bishop had
been disciplined several times and was in jeopardy of being terminated.

       The Board of Review noted the mine safety specialist’s professional opinion that there
was no way the incident could have occurred as reported because there were no objects that
would cause Mr. Bishop to have been dragged or pulled off the mantrip, as he alleged. The
Board of Review found that there are too many discrepancies in the evidentiary record to support
the credibility of Mr. Bishop’s application for workers’ compensation benefits, and further, the
compensability of the claim. We agree with the reasoning and 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
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: November 1, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:
Justice Robin J. Davis
Justice Margaret L. Workman




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