                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

PAUL COOK,                                                                          FILED
Claimant Below, Petitioner                                                         June 22, 2016

                                                                              RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

vs.)   No. 15-0618 (BOR Appeal No. 2049951)                                     OF WEST VIRGINIA


                   (Claim No. 2014007212)

CECIL I. WALKER MACHINERY,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Paul Cook, by Patrick K. Maroney, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Cecil I. Walker Machinery, by Lisa
Warner Hunter, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated May 20, 2015, in which
the Board affirmed an October 14, 2014, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s September 19, 2013,
decision to reject 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. Cook, a mechanic for Cecil I. Walker Machinery, alleged that on or around August
30, 2013, he injured his shoulder attempting to move a counterweight. On September 2, 2013, he
completed a report of injury. He also reported to Charleston Area Medical Center that day where
it was noted that there was no known injury and that he suffered a sudden onset of symptoms. X-
rays of the cervical and thoracic spine demonstrated no significant abnormalities. Mr. Cook was
examined by Donald Seidler, M.D., who diagnosed radiculitis and degenerative disc disease. On
September 3, 2013, Dr. Seidler completed a physician’s report stating that Mr. Cook would be
able to resume his regular work duties on September 10, 2013.
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        On September 5, 2013, and September 12, 2013, Mr. Cook completed two additional
reports of injury. In the reports, he asserted that on August 30, 2013, he woke up with light pain
in his right shoulder blade. He stated that the pain increased in the right shoulder and arm while
he was removing twelve counterweights at work. On September 19, 2013, the claims
administrator denied Mr. Cook’s applications for benefits.

         On September 30, 2013, Rodney Fox, Mr. Cook’s supervisor, authored a statement that
indicated Mr. Cook did not follow the company’s policy for reporting an accident. The handbook
requires that all accidents, whether resulting in a personal injury or not, must be reported to the
immediate supervisor within twenty-four hours of occurrence regardless of how minor they may
be. Mr. Fox asserted that he was not informed of the injury until September 6, 2013, and as a
result, a verbal warning was issued to Mr. Cook.

        On February 3, 2014, Mr. Cook testified in a hearing before the Office of Judges. Mr.
Cook noted that his position required him to do heavy lifting and a lot of work with his hands
and arms. He testified on August 30, 2013, that he was working on a crank shaft that weighed
about 1,700 pounds. While working with the thirty to forty pound counterweights associated
with this piece of equipment, Mr. Cook felt a sharp pain start in his neck and radiate down the
back of his arm. He did not report the injury because he did not, at the time, think it was a serious
enough injury. He testified that with his highly physical job, he experiences pains every day;
however, most went away without further intervention. He stated that this time his pain
intensified through the night, and he eventually sought treatment for his right shoulder on
September 2, 2013. Mr. Cook asserted he had actually woken up the morning of August 30,
2013, with tingling in his right shoulder; however, it was not severe enough to prevent him from
working. Mr. Cook returned to work on September 5, 2013, though his shoulder was still painful.
He worked until September 16, 2013, when he was sent home by his supervisor due to his injury.
Mr. Cook returned to light duty work on September 30, 2013. Mr. Cook testified he had not
sought any medical treatment of any kind for his right shoulder prior to the injury.

        A. E. Landis, M.D. performed a record review on March 6, 2014, and did not find
evidence to support an injury to the cervical spine on August 30, 2013. It was noted Mr. Cook
awoke with symptoms, went to work, and did his usual job. Dr. Landis opined that this could
certainly have aggravated the symptoms related to his cervical disc disease. He opined that the
cervical disc disease was a non-work-related factor responsible for the onset and continuation of
symptoms. Thereafter, William McDonald, M.D., examined Mr. Cook on March 24, 2014, and
diagnosed a cervical sprain and cervicobrachial syndrome.

        The Office of Judges affirmed the claims administrator’s decision in its October 14,
2014, Order. It determined that Mr. Cook failed to show that his injury occurred in the course of
and as a result of his employment. The Office of Judges found that Mr. Cook failed to allege that
an isolated fortuitous event occurred until September 12, 2013, which was several days past his
alleged injury. The Office of Judges found that Dr. Landis’s medical opinion was persuasive. Dr.
Landis opined that Mr. Cook’s significant disc degeneration at C5-6 was likely the source of his
symptoms. Because of the discrepancies in reporting the injury and the clear evidence of a pre­
existing condition, the Office of Judges found that Mr. Cook failed to meet his burden of proof.
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The Board of Review adopted the findings of the Office of Judges and affirmed its Order on May
20, 2015.

        After review, we agree with the consistent decisions of the Office of Judges and Board of
Review. Mr. Cook has not submitted sufficient credible evidence to show that he was injured in
the course of and as a result of his employment. The only medical opinion of record, Dr.
Landis’s report, found that his symptoms were most likely caused by his degenerative disc
disease. There were also some inconsistencies with his reporting of the injury. The injury
allegedly occurred at or around August 30, 2013, and he did not allege an isolated occurrence
until September 12, 2013. Furthermore, when he was seen at Charleston Area Medical Center he
did not report any injury, just a sudden onset of symptoms. He was also diagnosed with
degenerative disc disease at that time. Because he did not meet his burden to show that he was
injured in the course of and as a result of his employment, it was not in error for the Office of
Judges and Board of Review to deny his claim.

        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: June 22, 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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