                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                               February 20, 2013

                                                                            RORY L. PERRY II, CLERK

SAYHRA D. WILLIAMS,                                                       SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-0841	 (BOR Appeal No. 2045235)
                    (Claim No. 2010117078)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

KROGER LIMITED PARTNERSHIP I,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Sayhra D. Williams, by Patrick Maroney, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Kroger Limited Partnership I, by
Sean Harter, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated April 27, 2011, in
which the Board affirmed an October 6, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s November 18,
2009, and January 19, 2010, decisions denying Ms. Williams’s applications 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.

                                                1
       Ms. Williams was working for Kroger Limited when she allegedly injured her back on
July 11, 2009. She filed an application for workers’ compensation benefits, and on November 18,
2009, the claims administrator denied the application. Ms. Williams suffered another alleged
injury while at work on November 10, 2009. On January 19, 2010, the claims administrator
denied her application for workers’ compensation benefits. The claims administrator found in
each instance that Ms. Williams had not sustained a new injury to her back, but was suffering
from symptoms relating to her preexisting back conditions.

        The Office of Judges held that the preponderance of the credible evidence did not
establish that Ms. Williams suffered from a work-related injury in July or November of 2009. On
appeal, Ms. Williams argues that she had not been suffering from back problems for almost two
years when the first work-related injury occurred, and that her preexisting conditions and
forgetfulness should not disqualify her from workers’ compensation benefits. Kroger maintains
that the current back condition is not directly attributable to a definite, isolated, fortuitous
occurrence, but rather a congenital condition.

        In affirming the denial of workers’ compensation benefits, the Office of Judges noted an
extensive history of back problems, and inconsistent testimony by Ms. Williams. The Office of
Judges found that Ms. Williams had been having back problems since the age of eight, including
several low-back injuries, despite her denial of such injuries. Further, it noted inconsistencies in
Ms. Williams’s testimony regarding the circumstances of the alleged work-related injuries. The
Office of Judges concluded that the evidence did not establish that Ms. Williams had suffered
from an injury in the course of or resulting from her employment. The Board of Review reached
the same reasoned conclusions in its decision of April 27, 2011. 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: February 20, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING:
Justice Menis E. Ketchum
                                                 2
