                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                                May 5, 2016
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
ROBERT SIBURT,                                                                OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 15-0508 (BOR Appeal No. 2049772)
                   (Claim No. 2014001646)


ALLIANCE COAL, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Robert Siburt, pro se, appeals the decision of the West Virginia Workers’
Compensation Board of Review. Alliance Coal, LLC, by Lucinda Fluharty, its attorney, filed a
timely response.

        This appeal arises from the Board of Review’s Final Order dated April 30, 2015, in
which the Board affirmed an August 18, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 28, 2013,
decision to deny the claim and the August 28, 2013, decision to deny a request for a lumbar spine
MRI. 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. Siburt, a shuttle car operator for Alliance Coal, LLC, asserts that he was injured in
the course of and as a result of his employment on May 31, 2013. Mr. Siburt did not report an
injury until June 10, 2013, when he completed a report of injury alleging that he injured his hip,
right leg, and lower back while building a wall on the beltline at work.


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         Alliance Coal, LLC, introduced Mr. Siburt’s previous medical history. The records
indicate that he was seen on September 30, 2004, at an emergency room with lower back pain. A
lumbar strain was diagnosed. On May 25, 2005, Mr. Siburt was treated by Ralph Wood, D.O.,
for increasing low back pain sustained while moving a refrigerator at his home. A lumbosacral
strain was diagnosed. Approximately a month later, Mr. Siburt sought treatment at Reynolds
Memorial Hospital for low back pain. He asserted he was carrying a ladder and stepped in a hole,
injuring his lower back. A lumbar sprain was diagnosed. A month later, on July 18, 2005, Mr.
Siburt presented to Ralph Wood, D.O., after a four wheeler accident. He reported that he landed
on his left mid-back area. A contusion of the thoracic and lumbosacral spine was diagnosed. On
November 8, 2005, Mr. Siburt sought treatment from Gregory Wood, D.O., because he was
lifting a transmission at home and experienced low back pain. A low back strain was diagnosed.
On May 25, 2009, Mr. Siburt presented to Reynolds Memorial Hospital with low back pain. A
muscle strain was diagnosed. On August 20, 2012, Mr. Siburt sought treatment from Dr. Wood
for moderate to severe lower back pain. Mr. Siburt was examined, and a strain of the lumbar
spine was diagnosed.

        On June 3, 2013, the day of the alleged injury, he was seen at Ohio Valley Medical
Center with hip, leg, and back pain. It was noted that he had an onset of right hip pain that
radiated up his back and down his leg the prior day. No injury was noted in the medical records
but Mr. Siburt later testified that he was injured at work. Sciatica was diagnosed. Mr. Siburt was
referred to Dr. Wood for follow-up care. Three days later, Mr. Siburt presented for follow-up at
Health Center-Tunnel Ridge. He reported continued sciatic pain. It was noted there was no work
injury and that Mr. Siburt fell on concrete at home. A muscle strain was diagnosed. On June 10,
2013, Mr. Siburt sought treatment at Ohio Valley Medical Center. At that time, a report of injury
was filled out alleging he injured his hip, right leg, and lower back on May 31, 2013, while
building a wall at work.

        From July 30, 2013, through August 27, 2013, Mr. Siburt was treated at Wood Health
Clinic for his alleged work injury. A lumbar spine strain was diagnosed and authorization for an
MRI of the lumbar spine was requested. The claims administrator denied the claim on August
28, 2013. By separate Order on the same day, the claims administrator denied the request for a
lumbar MRI.

         On December 4, 2013, Mr. Siburt was deposed. He stated that his last day of work was
on May 31, 2013. Mr. Siburt insisted that he mentioned his sore back to his fellow workers Tim
Rager and Jim Ullom that day. However, he did not report the injury to his supervisor because he
thought it would get better over the weekend. He then sought treatment at Ohio Valley Medical
Center after realizing his back was not improving. Sciatica was diagnosed and injections were
administered. Mr. Siburt stated that when he returned home from the emergency room, he had an
altercation with his girlfriend. The police were called, and he was taken to jail, where he stayed
for two days. Mr. Siburt testified that he was scheduled to work on June 4, 2013, but could not
call or report because he was incarcerated. He was released from jail on June 5, 2013. Mr. Siburt
asserted that he immediately contacted his shift boss and reported the alleged injury after he was
released from jail. Mr. Siburt went to work the next day to complete paperwork and was
instructed to go home. He was terminated on June 6, 2013. Mr. Siburt stated that he sought
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treatment at Ohio Valley Medical Center again on June 10, 2013, for continued pain. An
injection was administered and medications were prescribed. Mr. Siburt eventually sought
treatment with Dr. Wood, who recommended an MRI and physical therapy. Mr. Siburt testified
that he had not experienced any of his current symptoms prior to the May 31, 2013, injury. Mr.
Siburt emphasized that he did not tell the doctor on June 3, 2013, that he hurt his back at work
because he was in a lot of pain and just wanted to finish the exam.

        Alan Lander, human resource manager for Alliance Coal, LLC, authored an affidavit on
January 17, 2014. Mr. Lander stated that he met with Mr. Siburt on June 6, 2013, to discuss his
unexcused absences from work on the 3rd, 4th, and 5th of June. Prior to June 6, 2013, Mr. Lander
received no information that indicated Mr. Siburt sustained a work injury on May 31, 2013. Mr.
Siburt was suspended on June 6, 2013, due to absenteeism. Mr. Lander stated that he noticed that
Mr. Siburt was limping. Mr. Siburt told him his sciatica was bothering him, and no injury was
mentioned. Mr. Siburt was fired over the telephone on June 7, 2013, due to his unexcused
absences. At that time, Mr. Siburt told Mr. Lander he had twisted his back at work. Mr. Siburt
then presented to Mr. Lander on June 10, 2013, and told him he had missed work those days due
to his sore back from the injury. Mr. Lander stated that he informed Mr. Siburt that he knew he
was incarcerated on the days he missed.

       James Cash, a shift supervisor for Alliance Coal, LLC, authored an affidavit on February
10, 2014. Mr. Cash advised he had reviewed Mr. Siburt’s deposition transcript. He stated that
Mr. Siburt was scheduled to work on June 3, 2013, and did not report for work. Mr. Cash stated
that he had heard Mr. Siburt was in jail. Mr. Cash also stated that he had no recollection of
having received a voice-mail from Mr. Siburt advising he had been injured. A phone log from
Verizon Wireless was obtained by Mr. Cash and submitted into evidence. He noted two
incoming calls on June 3, 2013, neither of which was from Mr. Siburt. Mr. Cash admitted Mr.
Siburt contacted him on June 5, 2013. However, the call was to inform Mr. Cash that he had
missed work because his transmission was broken.

        On April 21, 2014, Amanda O’Hara, Mr. Siburt’s girlfriend, completed an affidavit. Ms.
O’Hara stated that she and Mr. Siburt went to the office of Mr. Lander on June 10, 2013, for a
meeting. Mr. Siburt told Mr. Lander he was hurt at work and received treatment at the
emergency room. Ms. O’Hara stated that when Mr. Siburt got home he could not do much and
was on medications prescribed by the emergency room. He was told his medical bill would be
covered under the Consolidated Omnibus Budget Reconciliation Act. Ms. O’Hara further
asserted that Mr. Siburt was told he should have reported his injury as soon as it happened,
however, since he failed to do so, he would suffer negative consequences.

        The Office of Judges affirmed the claims administrator’s decision on August 18, 2014,
because it determined that no injury had occurred in the course of and as a result of Mr. Siburt’s
employment. The Office of Judges questioned the circumstances leading to the report of injury
and Mr. Siburt’s credibility. Mr. Siburt testified that he telephoned Mr. Cash on June 3, 2013,
after he was seen at Ohio Valley Medical Center and told him he had been treated for a work
injury. However, the cell phone records from Mr. Cash show no call. The Office of Judges
determined that the first time that Mr. Siburt reported his injury was on June 10, 2013, three days
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after he was discharged for unexcused absences. The Office of Judges also found that the June 6,
2013, note from Tunnel Ridge Health Clinic listed no work injury and indicated the mechanism
of injury was a slip and fall accident on concrete at home. The Office of Judges found that the
medical record also supported another mechanism of injury. The record indicated Mr. Siburt had
bruises on his buttocks, which was consistent with falling on concrete at home and not consistent
with his testimony of an alleged work injury. Overall, the Office of Judges determined that Mr.
Siburt failed to meet his burden to show that a work injury occurred. Because he could not show
that an injury occurred, the Office of Judges also denied treatment related to the alleged injury.
The Board of Review adopted the findings of the Office of Judges and affirmed its Order on
April 30, 2015.

        After review, we agree with the consistent conclusions of the Office of Judges and Board
of Review. Mr. Siburt carries the burden to show that his injury was received in the course of and
as a result of his employment. The Office of Judges was well within reason to determine that Mr.
Siburt’s testimony was unreliable because of the numerous inconsistencies in his testimony.
Furthermore, the report from Tunnel Ridge Health Clinic strongly indicates that Mr. Siburt’s
problems were related to a slip and fall accident that occurred at his home. Because the only
evidence of a work-related injury was Mr. Siburt’s unreliable testimony and the other evidence
strongly supported another mechanism of injury, the Office of Judges and Board of Review were
not in error for affirming the rejection of the claim. Because no compensable injury occurred it
was also proper for an MRI to be denied.

        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: May 5, 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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