                             STATE OF WEST VIRGINIA
                                                                                   FILED
                          SUPREME COURT OF APPEALS                             October 21, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
GREGORY SAVAGE,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 11-1672 (BOR Appeal No. 2045983)
                   (Claim No. 2010132356)

ALLIANCE COAL, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Gregory Savage, by J. Thomas Greene Jr., his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Alliance Coal, LLC, by George
Roeder III, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated November 7, 2011, in
which the Board affirmed a May 19, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s May 17, 2010,
decision rejecting Mr. Savage’s claim 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.

        Mr. Savage asserts that he injured his left ankle on March 7, 2010, when he rolled his
foot while working in an underground coal mine. The medical evidence of record indicates that
he suffered from multiple medical problems around the time of the alleged injury, including left
ankle pain, for which he was seeking treatment. On May 17, 2010, the claims administrator
rejected the claim. In its Order affirming the claims administrator’s May 17, 2010, decision, the
Office of Judges held that the preponderance of the evidence demonstrates that Mr. Savage did
not sustain a work-related injury on March 7, 2010. Mr. Savage disputes this finding and asserts
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that the evidence of record demonstrates that he suffered a work-related left ankle injury on
March 7, 2010.

        The Office of Judges found that the alleged March 7, 2010, injury does not appear in the
medical record until April 23, 2010, when Dr. Miller signed Mr. Savage’s application for
workers’ compensation benefits. The Office of Judges noted that Mr. Savage did not even
incidentally mention to his treating physicians that he injured his ankle at work, despite the fact
that he was receiving ongoing treatment. Moreover, the record indicates that Alliance Coal was
not made aware of the alleged work-related injury until late April of 2010, despite the fact that
Mr. Savage had not worked since March 8, 2010. The Office of Judges found that other Alliance
Coal employees discussed Mr. Savage’s left ankle issues with him shortly after the date of the
alleged injury at a retraining session, and further noted that Mr. Savage did not indicate to any of
his coworkers that he had sustained a work-related injury to his left ankle. Finally, the Office of
Judges pointed to West Virginia Code of State Rules § 85-1-3.1 (2009), which requires that
work-related injuries be reported immediately, and specifies that notice given within two
working days shall be deemed immediate. The Office of Judges then found that Mr. Savage
waited six weeks to advise Alliance Coal that he sustained an alleged work-related ankle injury
on March 7, 2010. The Board of Review reached the same reasoned conclusions in its decision
of November 7, 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: October 21, 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




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