                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               July 15, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
BEVERLY GRAY, WIDOW OF                                                        OF WEST VIRGINIA

MARK A. GRAY (DECEASED),
Claimant Below, Petitioner

vs.)   No. 11-1090 (BOR Appeal No. 2045477)
                    (Claim No. 2010100566)

HAWKEYE CONTRACTING COMPANY, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
         Petitioner Beverly Gray, Widow of Mark A. Gray (Deceased), by William M.
Shrewsberry Jr., her attorney, appeals the decision of the West Virginia Workers’ Compensation
Board of Review. Hawkeye Contracting Company, LLC, by Steven K. Wellman, its attorney,
filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated June 23, 2011, in which
the Board affirmed a December 17, 2010, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s August 13, 2009, order
denying dependent’s 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. For these reasons, a memorandum
decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

        Mr. Gray was employed by Hawkeye Contracting, LLC, as a laborer/equipment operator
on July 28, 2009, when the articulated dump truck that he was driving went backwards into a
sediment pond and turned over. Mr. Gray drowned in the accident. A dependent’s claim was
filed by Mr. Gray’s widow, Beverly Gray.



                                                1
        The claim was denied by the claims administrator because Mr. Gray was intoxicated at
the time of the accident. An autopsy was conducted by the Chief Medical Examiner of West
Virginia and Mr. Gray’s blood alcohol level was 0.08%, which is greater than the legal limit
under West Virginia Code § 17C-5-2(d). Mr. Gray’s co-workers all gave depositions stating
that they had observed a beer can inside of the truck that went into the pond; that they smelled
alcohol on Mr. Gray while administering CPR; that Mr. Gray had displayed abnormal behavior
on the morning the accident occurred; and that he did not hesitate or attempt to stop before
driving into the pond.

        In its Order, the Office of Judges held that the preponderance of the evidence showed that
the claims administrator’s order of August 13, 2009, should be affirmed. The Office of Judges
concluded that there is no evidence of record to indicate that Mr. Gray’s death was the result of
actions or inactions taken by Hawkeye Contracting Company, LLC. The Board of Review
reached the same reasoned conclusion in its decision of June 23, 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: July 15, 2013

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




                                                2
