                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             October 20, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
SWOPE CONSTRUCTION,                                                           OF WEST VIRGINIA

Employer Below, Petitioner

vs.)   No. 13-0658 (BOR Appeal No. 2047970)
                   (Claim No. 2013005765)

JOHN D. PETTRY,
Claimant Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Swope Construction, by Jonathan T. Cook, its attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. John D. Pettry, by Reginald D.
Henry, his attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated May 17, 2013, in which
the Board affirmed a December 14, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges reversed the claims administrator’s October 1, 2012, 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. Pettry, a carpenter, was injured in the course of his employment on July 16, 2012,
when he fell off of an eight foot form. He was taken from his work site by ambulance to Raleigh
General Hospital where he was diagnosed with multiple contusions, bilateral knee strains,
shoulder strain, neck strain, and back strain. On the employee’s and physician’s report of injury
he asserted that he sustained multiple contusions and sprains of the bilateral knees, shoulder,
neck, and back as a result of the fall. An MRI of the right shoulder revealed a partial thickness
tear of the rotator cuff.

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        The record contains multiple witness statements which indicate Mr. Pettry appeared to be
drowsy the day of the accident. There were no witnesses to the actual fall. A few co-workers
heard the sound of Mr. Pettry hitting the ground but did not actually see him fall. Kevin Hoke,
the crane operator at the time, stated that he saw Mr. Pettry begin to climb off the form and then
hit the ground, landing on his right shoulder. Mr. Hoke was unable to see where Mr. Pettry fell
from.

        Philip Surface, D.O., performed an independent medical evaluation on November 20,
2011. He opined that Mr. Pettry sustained a work-related injury on July 16, 2012. He stated that
the injury was limited to a tear of the right rotator cuff. The other complaints relating to the
lumbar spine and left rib are the result of pre-existing spinal stenosis which was documented in
2007. He also found that Mr. Pettry suffers from right knee osteoarthritis, which is a pre-existing,
non-compensable condition.

        Mr. Pettry testified in hearing before the Office of Judges on November 28, 2012. He
stated that he was unhooking a form that was approximately eight feet high, when the form was
unhooked it began to move and he lost his balance and fell. He grabbed onto the form with his
right arm in an attempt to prevent his fall. He lost consciousness when he hit the ground. He was
taken from the job site to the hospital in an ambulance. The fall caused pain in his lower back,
right shoulder, left rib, and bilateral knees. He stated that he currently takes Oxycodone, Nexium,
and Methadone regularly. He occasionally takes Valium and Ambien. He stated that he takes the
medications after work, not before. He stated that he had a prior workers’ compensation claim
which involved his head and neck. He has had multiple lower back injuries prior to the work-
related injury in the instant case. He also had pre-existing balance issues.

        The claims administrator rejected the claim on October 1, 2012. The Office of Judges
reversed the decision and held the claim compensable for multiple contusions and a right rotator
cuff tear in its December 14, 2012, Order. Significant weight was given to Mr. Pettry’s hearing
testimony. He was treated at Raleigh General Hospital’s emergency room that day and diagnosed
with multiple contusions. The Office of Judges found numerous diagnostic tests which showed
degenerative changes in the lumbar spine and osteoarthritis in the knees. Mr. Pettry’s testimony
was supported by the independent medical evaluation of Dr. Surface which was also given great
weight. Dr. Surface opined that Mr. Pettry suffered a right rotator cuff tear in the course of his
employment. Dr. Surface’s assessment was consistent with hospital records and the statement of
the crane operator who said that Mr. Pettry fell onto his right shoulder.

        The Office of Judges noted that Swope Construction argued Mr. Pettry fell while
standing on the ground as the result of medications he was taking at that time. The argument was
determined to be unpersuasive because it contradicted the hospital records which indicate a
diagnosis of multiple contusions. The Office of Judges found that Swope Construction did not
show that Mr. Pettry was under the influence of medication during his work hours. The Office of
Judges also found that Mr. Pettry’s previous work-related injuries did not prevent him from
suffering a new injury on July 16, 2012.


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       The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its May 17, 2013, decision. This Court agrees with the
reasoning of the Office of Judges and the conclusions of the Board of Review. The evidentiary
record indicates Mr. Pettry sustained multiple contusions and a right rotator cuff tear in the
course of his employment on July 16, 2012.

        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: October 20, 2014

CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:
Justice Brent D. Benjamin




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