                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                            September 15, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
KEVIN R. DAMERON,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-1230	 (BOR Appeal No. 2049489)
                   (Claim No. 2013032201)

BRODY MINING, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Kevin R. Dameron, by Anne Wandling, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Brody Mining, LLC, by Jillian
Moore, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated October 30, 2014, in
which the Board affirmed a May 7, 2014, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s June 13, 2013, decision
rejecting Mr. Dameron’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.

        In the instant appeal, Mr. Dameron alleges that he injured his neck while hanging curtain
in an underground coal mine on May 21, 2013. On May 22, 2013, Mr. Dameron sought
treatment with Rachel Stover, FNP-BC, who noted that he complained of neck pain, neck
stiffness, and muscle aches in the cervical spine. She diagnosed Mr. Dameron with cervicalgia
and muscle spasms. Ms. Stover’s treatment notes make no mention of the alleged May 21, 2013,
injury. On May 28, 2013, Mr. Dameron sought treatment with Michael Muscari, D.O., who
noted that he reported injuring his neck on April 8, 2013, when he struck his head on the canopy
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of a mine shuttle car. On June 13, 2013, the claims administrator rejected Mr. Dameron’s
application for workers’ compensation benefits based upon a finding that he has failed to
establish that he sustained an injury in the course of and resulting from his employment.

       On October 31, 2013, Colin Milam Jr., Brody Mining’s human resources manager,
authored an affidavit. Mr. Milam stated that on May 22, 2013, Mr. Dameron’s wife telephoned
the company dispatcher to report that Mr. Dameron was being taken to the emergency room
because he was “dehydrated”. Mr. Milam further stated that Mr. Dameron did not report to work
on May 23, 2013, or May 24, 2013, but failed to notify his employer that he would be absent.
Mr. Milam stated that following the unexcused absences, the operations manager requested a
meeting with Mr. Dameron to discuss his failure to report the absences. Mr. Milam noted that
Mr. Dameron next reported to work on May 27, 2013, but was sent home and told not to report
to work until he had spoken with the operations manager. He further stated that Mr. Dameron
waited until he was told to return home to report the alleged May 21, 2013, injury.

        Mr. Dameron authored an affidavit on February 10, 2014. In his affidavit, Mr. Dameron
maintains that he was unable to work from May 22, 2013, through May 27, 2013, as a result of a
neck injury that occurred on May 21, 2013. However, he admits that when he sought treatment
from Ms. Stover on May 22, 2013, he did not report sustaining a specific neck injury and was
instead seeking treatment for general neck pain.

        In its Order affirming the June 13, 2013, claims administrator’s decision, the Office of
Judges held that Mr. Dameron has failed to demonstrate that he sustained an injury in the course
of and resulting from his employment on May 21, 2013. The Board of Review affirmed the
reasoning and conclusions of the Office of Judges in its decision dated October 30, 2014. On
appeal, Mr. Dameron asserts that the evidence of record demonstrates that he injured his neck in
the course of and resulting from his employment on May 21, 2013, and is therefore entitled to
workers’ compensation benefits arising from the May 21, 2013, injury.

        The Office of Judges noted that the medical evidence of record makes no mention of an
injury occurring on May 21, 2013. As was noted by the Office of Judges, Mr. Dameron reported
to Dr. Muscari an alleged neck injury that occurred on April 8, 2013. However, Dr. Muscari
never mentions the alleged May 21, 2013, injury. Moreover, while acknowledging that he
reported to Dr. Muscari that he sustained a work-related injury on April 8, 2013, Mr. Dameron
has specifically requested that this Court enter a finding of compensability for an injury allegedly
occurring on May 21, 2013, of which there is no medical evidence of record.

        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: September 15, 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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