                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                               FILED
DONALD MACK,
Claimant Below, Petitioner                                                 November 2, 2018
                                                                             EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
vs.)   No. 18-0469 (BOR Appeal No. 2052301)
                   (Claim No. 2017016110)

THE HOMER LAUGHLIN CHINA COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Donald Mack, by Patrick K. Maroney, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The Homer Laughlin China Company,
by Lucinda Fluharty, its attorney, filed a timely response.

       The issue on appeal is compensability. The claims administrator rejected the claim on
February 16, 2017. The Office of Judges affirmed the decision in its October 17, 2017, Order.
The Order was affirmed by the Board of Review on April 23, 2018. 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. Mack, a service person, alleges that he injured his left shoulder in the course of his
employment on September 12, 2016, while pushing a skid with broken floor jacks. An MRI of
the left shoulder was performed on August 12, 2016, and showed a small thickens tear of the
supraspinatus tendon and distal infraspinatus tendon; a SLAP lesion with degenerative changes
and thinning of the labrum; tear of the posterior labrum; and mild degenerative changes of the
left shoulder.


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        A treatment note from Ohio Sports and Spine Institute dated August 18, 2016, indicates
Mr. Mack had left shoulder pain. On August 25, 2016, it was noted that physical therapy was
helping his pain. On September 1, 2016, Mr. Mack reported that physical therapy had improved
his pain about 40%. He also had improvements in range of motion and strength. However, he
continued to have difficulty with work duties like heavy lifting, pushing, and pulling.

       An October 5, 2016, consultation note from Cleveland Orthopedic General indicates Mr.
Mack had left shoulder pain for the past three years. He stated that he believed he injured his
shoulder at work. He sought treatment, did physical therapy, and returned to full duty work.
However, he still has persistent pain. He was diagnosed with chronic left shoulder pain.

        In the December 2, 2016, employees’ and physicians’ report of injury, Mr. Mack asserted
that he injured his neck and shoulder while pushing a skid with broken floor jacks on September
12, 2016. He stated that his supervisor and union representative were both informed. The
physician’s section was completed by Thomas Tambouratzis, M.D., at the Veteran’s
Administration clinic in Calcutta, Ohio. Dr. Tambouratzi diagnosed occupational left shoulder
injury with a rotator cuff component.

       A treatment note from the Cleveland Department of Veterans Affairs Medical Center
dated April 7, 2017, indicates Mr. Mack had chronic left shoulder pain most consistent with
scapular thoracic movement difficulty and rotator cuff/biceps tendinopathy. He was to continue
physical therapy but had no restrictions. In an April 12, 2017 addendum, it was noted that the
shoulder pain had been present for three years and that Mr. Mack believed he injured it at work.

        Mr. Mack testified in a deposition in May 23, 2017, that sometime in 2016, he sustained
an injury where he tore his rotator cuff and injured his lower back. He last worked on September
12, 2016, and the injury happened prior to that date. He could not recall the exact date that he
was injured and stated that he just started hurting. He stated that he was pushing a skid with
broke floor jacks repeatedly and that is how he was injured. Mr. Mack testified that he injured
his neck in 2013 but not his shoulder. On September 12, 2016, the shoulder pain became
unbearable and he reported it to his supervisor. He has not returned to work since. Mr. Mack
admitted to having treatment for his shoulder between 2013 and 2016 with the Veteran’s
Administration Clinic.

       The claims administrator rejected the claim on February 16, 2017. The Office of Judges
affirmed the decision in its October 17, 2017, Order. It found that Mr. Mack acknowledged in his
deposition that he did not suffer an acute injury on September 12, 2016. That was merely the
date on which he could no longer bear his shoulder pain. The Office of Judges found that he had
preexisting shoulder problems and concluded that he failed to show that there was a fortuitous
event that occurred on September 12, 2016, in the course of his employment. Therefore, the
claim could not be held compensable. The Board of Review adopted the findings of fact and
conclusion of law of the Office of Judges and affirmed its Order on April 23, 2018.

       After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Mr. Mack suffered from preexisting shoulder pain and failed
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to show that he sustained an isolated, fortuitous injury in the course of and resulting from his
employment.

        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: November 2, 2018


CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins

Justice Allen H. Loughry II suspended and therefore not participating.




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