                             STATE OF WEST VIRGINIA


                          SUPREME COURT OF APPEALS
                                                                                    FILED
HERMAN MAYNARD JR.,                                                                June 8, 2017
                                                                              RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA


vs.)   No. 16-0710 (BOR Appeal No. 2051034)
                   (Claim No. 2015010619)

ROCKSPRING DEVELOPMENT, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Herman Maynard Jr., by Wendle Cook, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Rockspring Development, Inc., by
Marion Ray, its attorney, filed a timely response.

        The issue presented in the instant appeal is the rejection of Mr. Maynard’s claim for
workers’ compensation benefits. On October 28, 2014, the claims administrator rejected the
claim. The Office of Judges affirmed the claims administrator’s decision in its Order dated
December 15, 2015. This appeal arises from the Board of Review’s Final Order dated June 27,
2016, in which the Board affirmed the Order of the Workers’ Compensation Office of Judges.
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. Maynard alleges that he injured his left knee in the course of and resulting from his
employment as a beltman on May 7, 2014. Mr. Maynard initially sought medical treatment at
Logan Regional Medical Center on May 18, 2014. It was noted that Mr. Maynard reported
experiencing left knee pain after his left knee “popped” while he was at work. He further
indicated that his left knee has “popped” in a similar manner “hundreds of times” in the past. The
treatment notes also indicated that Mr. Maynard’s symptoms began on May 14, 2014, and are not
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associated with a known injury. He was diagnosed with a cruciate ligament strain, possible
cruciate ligament tear, and joint effusion. A left knee MRI performed on May 27, 2014, revealed
an avulsion fracture of the tibial spine at the distal attachment to the anterior cruciate ligament, a
small tear of the posterior portion of the lateral meniscus, and a partial-thickness tear of the
quadriceps tendon.

        Mr. Maynard was evaluated by Robert McCleary, D.O., on May 21, 2014. Dr. McCleary
noted that Mr. Maynard reported experiencing a popping sensation in his left knee while working
on May 14, 2014. He further noted that the mechanism of injury was a twisting-type injury. Dr.
McCleary diagnosed Mr. Maynard with left knee derangement. On June 19, 2014, Mr. Maynard
was evaluated in the office of Charles Giangarra, M.D. It was noted that Mr. Maynard reported a
six-week history of left knee pain after experiencing a popping sensation in his left knee while
negotiating a step. Mr. Maynard was diagnosed with an avulsion fracture of the left tibial spine
with associated laxity in the anterior cruciate ligament. On August 20, 2014, Dr. Giangarra
arthroscopically repaired Mr. Maynard’s anterior cruciate ligament and lateral meniscus.

        On August 28, 2014, Mr. Maynard completed a Report of Injury. In the report, Mr.
Maynard alleges that he injured his left knee on May 7, 2014, when he slipped while walking
along a beltline and bumped his knee on a portion of the apparatus. He further indicated that
mine inspector A.J. Ball witnessed the alleged incident, and that he immediately reported the
alleged injury to three coworkers. However, in the physician’s portion of the report, Dr.
Giangarra indicated that Mr. Maynard injured his left knee when he experienced a popping
sensation while negotiating a step. The claims administrator rejected Mr. Maynard’s application
for workers’ compensation benefits on October 28, 2014.

        In an affidavit dated July 6, 2015, Eric Varney, Rockspring Development’s safety
representative, averred that all of Rockspring Development’s employees have been instructed to
report all injuries to him. He further stated that neither Mr. Maynard nor any of his coworkers or
supervisors ever reported the alleged left knee injury. Mr. Varney noted that Mr. Maynard
identified Mr. Ball as a witness; however, Mr. Varney stated that if Mr. Maynard did sustain an
injury while Mr. Ball was performing an inspection, he would have also witnessed the injury
because he accompanied Mr. Ball during the course of the inspection. Mr. Varney then stated
that he contacted Mr. Ball regarding the alleged injury. Mr. Varney indicated that Mr. Ball did
not recall witnessing any incident during which Mr. Maynard injured his knee.

       Finally, Mr. Maynard testified in a hearing before the Office of Judges on August 4,
2015. He indicated that he injured his left knee on May 7, 2014, when he slipped and struck his
knee while walking along a beltline. Mr. Maynard then testified that Mr. Ball witnessed the
alleged injury and that he verbally reported the alleged injury to Mr. Ball. He also stated that he
immediately reported the injury to four coworkers. Finally, Mr. Maynard testified that he has
never experienced any discomfort in his left knee prior to the alleged injury.

       In its Order affirming the October 28, 2014, claims administrator’s decision, the Office of
Judges held that Mr. Maynard has failed to establish that he sustained an injury in the course of
and resulting from his employment. The Board of Review affirmed the reasoning and
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conclusions of the Office of Judges in its decision dated June 27, 2016. On appeal, Mr. Maynard
asserts that the evidence of record demonstrates that he sustained an injury in the course of and
resulting from his employment.1

         The Office of Judges concluded that the evidence of record contains too many
inconsistencies to support a finding of compensability. The Office of Judges pointed out that Mr.
Maynard initially reported experiencing a popping sensation in his left knee with no associated
injury when seeking treatment on May 18, 2014, at Logan Regional Medical Center. The Office
of Judges further noted that Mr. Maynard reported experiencing a popping sensation in his left
knee numerous times in the past, with the most recent occurrence being four days after the
alleged date of injury. Additionally, the Office of Judges noted that Dr. McCleary’s May 21,
2014, report indicates both that Mr. Maynard experienced pain following a popping sensation in
his left knee and that he sustained a twisting-type knee injury during a fall. The Office of Judges
also noted that in the Report of Injury, Mr. Maynard indicated that he injured his left knee when
he slipped and bumped his knee. However, in the same report Dr. Giangarra indicated that Mr.
Maynard injured his left knee when he experienced a popping sensation while negotiating a step.
The Office of Judges then found that the medical evidence of record fails to demonstrate that the
popping sensation described by Mr. Maynard is representative of a work-related injury.
Moreover, the Office of Judges took note of Mr. Varney’s affidavit and Mr. Maynard’s
testimony before the Office of Judges. Specifically, the Office of Judges noted that neither Mr.
Varney, who would have witnessed the alleged incident had it occurred, and Mr. Ball, who was
named by Mr. Maynard as a witness to the alleged injury, witnessed or was aware of the alleged
injury prior to the filing of the claim. Finally, the Office of Judges found that although Mr.
Maynard testified that he had no prior left knee symptoms, his medical record received from
Logan Regional Medical Center clearly demonstrates that he experienced significant problems
with the left knee prior to the alleged date of injury. The Office of Judges then concluded that
when considering the varying accounts regarding the mechanism of injury, the evidence received
from Logan Regional Medical Center citing no known mechanism of injury, Mr. Maynard’s
reports of prior left knee problems while seeking medical treatment at Logan Regional Medical
Center, and the affidavit of Mr. Varney, the evidentiary record contains too many inconsistencies
to support a finding of compensability. We agree with the reasoning and conclusions of the
Office of Judges, as affirmed by the Board of Review.




1
 On appeal to this Court, Mr. Maynard also asserts that the alleged injury aggravated a pre­
existing injury of the left knee. Pointing to our recent decision in Gill v. City of Charleston, 236
W.Va. 737, 783 S.E.2d 857 (2016), Rockspring Development asserts that any aggravation of a
pre-existing injury that may have occurred is not compensable. However, we find that the record
was insufficiently developed below in relation to the question of any possible pre-existing
diagnosis.
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        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: June 8, 2017

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




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