                              STATE OF WEST VIRGINIA

                                                                                    FILED
                           SUPREME COURT OF APPEALS                             December 3, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
SWVA, INC.,                                                                    OF WEST VIRGINIA

Employer Below, Petitioner

vs.)   No. 13-1016 (BOR Appeal No. 2048220)
                   (Claim No. 2012020814)

FOREST A. ADKINS,
Claimant Below, Respondent


                              MEMORANDUM DECISION
      Petitioner SWVA, Inc., by Steven K. Wellman, its attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review.

       This appeal arises from the Board of Review’s Final Order dated September 4, 2013, in
which the Board affirmed a February 21, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s January 20, 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. Adkins, a laborer, was injured in the course of his employment on June 30, 2011,
while swinging a sledgehammer. He testified in a deposition on May 9, 2012, that he reported
the injury to his foreman and filled out an incident report. After the injury, he was sore for a few
days and thought he had pulled a muscle. He stated that he believed the injury would resolve on
its own but he kept aggravating it when he used a sledgehammer. He stated that he sustained no
left shoulder injuries prior to June 30, 2011.

      The employee’s and physician’s report of injury dated December 21, 2011, indicates that
Mr. Adkins sustained a left shoulder strain while swinging a sledgehammer in the course of his
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employment. A treatment note dated December 21, 2011, by Allen Young, M.D., states that Mr.
Adkins was swinging a sledgehammer at work and felt a pop in his shoulder. He worked around
the pain for some time but eventually was no longer able to. There was no history of a prior left
shoulder injury. Dr. Young diagnosed sprain of the left shoulder and upper arm. He opined that
there was likely a tendon tear that would need to be surgically treated. A left shoulder MRI
revealed full thickness and intrasubstance tears of the supraspinatus tendon, intrasubstance tears
of the infraspinatus and subscapularis tendons, and an anterior labral tear.

         The claims administrator rejected the claim on January 20, 2012. The Office of Judges
reversed the decision and held the claim compensable for a left shoulder injury in its February
21, 2013, Order. The Office of Judges determined that a preponderance of the evidence indicated
that Mr. Adkins injured his left shoulder in the course of his employment. He testified that he
was able to work through his shoulder discomfort but that the pain progressively worsened. The
Office of Judges found that this was not inconsistent with him failing to mention a shoulder
injury to his treating physician when he saw him on September 14, 2011. Mr. Adkins testified his
injury worsened with subsequent aggravations until he was in considerable pain by December of
2011. At that point, he sought treatment. Further, the Office of Judges found that Mr. Adkins
testified that he promptly reported the injury to his supervisor, and his assertion was not
disputed. Ultimately, the Office of Judges held that Mr. Adkins gave a credible account of how
his injury occurred, and the fact that he did not report the injury until much later did not, in itself,
mean that he did not suffer a compensable injury. The Board of Review adopted the findings of
fact and conclusions of law of the Office of Judges and affirmed its Order in its September 4,
2013, decision.

        On appeal, SWVA, Inc., argues that the evidentiary record does not support Mr. Adkins’s
contention that he was injured in the course of his employment. After review, we agree with the
reasoning of the Office of Judges and the conclusions of the Board of Review. The evidentiary
record indicates Mr. Adkins sustained a left shoulder injury in the course of and resulting from
his employment. The fact that he did not immediately seek medical attention does not mean he
did not sustain a compensable injury. He promptly reported the injury to his supervisor and filled
out an incident report.

        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: December 3, 2014

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




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