                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
MACY’S RETAIL HOLDINGS, INC.,                                                  November 14, 2013
                                                                            RORY L. PERRY II, CLERK
Employer Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 12-0049 (BOR Appeal No. 2046163)
                   (Claim No. 2011005941)

EDWARD THOMAS,
Claimant Below, Respondent


                             MEMORANDUM DECISION

       Petitioner Macy’s Retail Holdings, Inc., by Michael A. Kawash, 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 December 16, 2011, in
which the Board affirmed a July 12, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s October 25, 2010,
Order denying the application 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. Thomas was employed in housekeeping by Macy’s Retail Holdings, Inc. and its
predecessors from 1983 until March 28, 2010, when his job was outsourced. On June 20, 2010,
Mr. Thomas filed a claim for workers’ compensation benefits for a torn right rotator cuff. On
October 25, 2010, the claims administrator denied the claim because it was not timely filed and
there was no specific work related incident.

        The Office of Judges found the evidence established that Mr. Thomas incurred an injury
to his right shoulder, including rotator cuff tear, during the course of and as a result from his

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employment. Macy’s Retail Holdings, Inc. argues that because Mr. Thomas filed for
unemployment benefits delaying the filing of his workers’ compensation claim for three months
after his employment ended and that the claim should not be held compensable.

       According to Lilly v. State Workmen’s Compensation Commissioner, 159 W. Va. 631,
225 S.E.2d 214 (1976), repetitive job duties can cause an occupational disease in the course of
and resulting from employment. The Office of Judges concluded that Mr. Thomas’s job duties
were repetitive in nature and were the proximate cause of his injuries. The Office of Judges
noted that Mr. Thomas’s evidence is the only medical evidence of record and it credibly
demonstrates that Mr. Thomas incurred a right rotator cuff tear. The Office of Judges further
noted that Dr. Cox stated that a diagnosis of a torn rotator cuff is typically secondary to either a
traumatic injury or chronic repetitive irritation. Dr. Cox found Mr. Thomas’s job responsibilities
were consistent with chronic repetitive irritation. Thus, the Office of Judges found that the claims
administrator was wrong to deny the application for workers’ compensation benefits. The Board
of Review reached the same reasoned conclusions in its decision of December 16, 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:        November 14, 2013

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

DISSENTING:
Chief Justice Brent D. Benjamin




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