                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              March 27, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
RYAN PRICE,                                                                   OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0615 (BOR Appeal No. 2048994)
                   (Claim No. 2014003894)

SAUNDERS STAFFING, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Ryan Price, by John H. Shumate Jr., his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Saunders Staffing, Inc., by Jillian L.
Moore, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated May 28, 2014, in which
the Board affirmed a November 19, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 9, 2013,
decision rejecting 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. Price, a laborer, alleges that he was injured on August 1, 2013, while loading wet
tents onto a truck. August 2, 2013, treatment notes from Beckley ARH Hospital’s Emergency
Room indicate that that he reported lower back pain with radiation down the right leg. He stated
he was throwing wet tents at work when the pain started suddenly approximately a day prior. He
was diagnosed with spinal stenosis and a herniated disc.

       At the time of his alleged injury, Mr. Price was assigned to work for Granny’s Alliance.
His supervisor at that time, Jason Heisey, completed an accident report for the alleged injury. He
                                                1
stated that he spoke to three witnesses, and they all reported that they did not notice anything
wrong with Mr. Price on the day of the alleged injury and that he was “goofing off” later that
day. Mr. Heisey stated that he worked with Mr. Price on the day of the alleged injury and did not
notice anything wrong. Mr. Price worked all day and was jumping around in the truck at the end
of his shift. He did not mention an injury or pain that day.

        Saunders Staffing, Inc., introduced several affidavits from co-workers who were present
on the day of the alleged injury. Jason Heisey asserted that on the day of the alleged injury, his
team was loading small tents into a truck. The tents weighed five to ten pounds and though it was
raining, they were covered by a tarp until they were loaded. His crew alternated loading and
stacking and took numerous breaks. At the end of his shift, Mr. Price was laughing, jumping up
and down in the truck, and attempting to block tents from entering the truck. He appeared to be
in no physical distress and never informed Mr. Heisey that he was in pain. Mr. Price did not
report to work the following day. Due to his absence and his behavior the previous day, Mr.
Heisey contacted Saunders Staffing, Inc., and requested that his assignment end.

        Heather Meadows, who worked for Saunders Staffing, Inc., when Mr. Price alleges his
injury occurred, asserted in an affidavit that she was notified on August 2, 2013, by Jason Heisey
that he wished to have Mr. Price’s contract ended. Mr. Heisey stated that Mr. Price was engaging
in more horseplay than work and had not reported to work that day. Ms. Meadows called Mr.
Price that same day to inform him that his assignment was terminated and Saunders Staffing Inc.,
had no other positions for him. After he was informed that he was no longer needed, Mr. Price
stated that he injured his back the previous day.

        Thomas Atwood, George Burgess, and Donnie Broyles, all stated in affidavits that they
worked with Mr. Price on the day of the alleged accident. They all asserted that the tents they
were loading weighted between five and ten pounds. None of them saw Mr. Price sustain an
injury. They all stated that at the end of the shift, Mr. Price was laughing, jumping around, and
roughhousing with several other employees with no sign of injury. They all affirmed that Mr.
Price did not inform anyone on the shift that he was injured.

        Mr. Price testified in a hearing before the Office of Judges on October 29, 2013. He
asserted that he was lifting and stacking wet tents that weighed thirty to forty pounds on the day
that he was injured. He stated that his back started to hurt while he was loading tents and
continued to worsen the longer he worked. That same day, he asserted that he told his supervisor,
Jason Heisey, that his back hurt. He woke up the next morning with extreme back pain and
called in to inform his supervisor that he would not be at work that day. He denied laughing,
joking, and engaging in horseplay at the end of his shift. He asserted that he attempted to contact
Ms. Meadows on August 2, 2013, and left a message for her. He was on his way to the hospital
when she called him to inform him that he was no longer needed.

       The claims administrator rejected the claim on August 9, 2013. The Office of Judges
affirmed the decision in its November 19, 2013, Order. It found that while Mr. Price’s testimony
was credible, there was a complete lack of corroboration given that he worked in a group of ten
people. Not only did he fail to produce a corroborating witness, Saunders Staffing, Inc.,
                                                2
introduced affidavits that directly refuted his allegation of a work-related injury. Also, he failed
to report the incident in writing to his employer. The Office of Judges stated that West Virginia
Code § 23-4-1g (2003), provides that failure to immediately give notice to the employer that an
injury has occurred weighs against a finding of compensability. The Office of Judges determined
that Saunders Staffing, Inc., denied receiving notice of an injury until after Mr. Price’s work
assignment was terminated. It was found that given the circumstances surrounding the alleged
injury, corroboration of Mr. Price’s testimony should have been readily available. However, the
affidavits of record support Saunders Staffing Inc.’s, position, including Mr. Heisey’s assertion
that Mr. Price engaged in horseplay, which resulted in his termination. The Board of Review
adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its
Order on May 28, 2014.

       On appeal, Mr. Price argues that he suffered a definite, isolated, fortuitous occurrence in
the course of his employment, and the medical evidence clearly shows that he sustained a low
back strain. He asserts that the Office of Judges found his testimony to be credible, and he
reported the injury to Saunders Staffing, Inc., within two days. Saunders Staffing, Inc., argues
that Mr. Price originally reported an isolated event and then later testified that his pain arose
gradually as he worked. It argues that his version of the events on the date of injury are
uncorroborated, and his complaints of injury arose after he was informed that his assignment was
terminated.

        After review, we agree with the reasoning of the Office of Judges and the conclusions of
the Board of Review. The evidence of record indicates that Mr. Price did not sustain a work-
related injury as he asserts. Multiple affidavits state that he did not appear to be injured, did not
report an injury, and engaged in horseplay at the end of his shift. It is also significant that he did
not report a work-related injury until after he was informed that his position had been terminated
due to his behavior. West Virginia Code § 23-4-1c(a)(2)(B) (2009) provides that, for the purpose
of determining compensability, the claims administrator shall consider “[w]hether the claimant
received notice within sixty days of the filing that his or her employment position was to be
eliminated.”

        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: March 27, 2015




                                                  3
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Allen H. Loughry II

DISSENTING:
Justice Menis E. Ketchum




                                    4
