                              STATE OF WEST VIRGINIA

                                                                                    FILED
                           SUPREME COURT OF APPEALS                              March 17, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
FRANK J. MCCARTY,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0446 (BOR Appeal No. 2047732)
                   (Claim No. 2011040062)

MOUNTAIN EDGE MINING, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Frank J. McCarty, by Patrick K. Maroney, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Mountain Edge Mining, Inc., by
Robert J. Busse, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated April 1, 2013, in which
the Board affirmed a September 17, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s June 30, 2011,
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. McCarty was helping to load a barge for Mountain Edge Mining, Inc., on June 2,
2011, when he allegedly injured himself while walking to adjust slide lines on a coal barge.
According to Mr. McCarty, he stepped on a lump of coal, which caused a loose body in his knee
to get caught in his knee joint. Mr. McCarty’s knee gave away and he reached for a line to keep
from falling off the barge. In the process, he hurt his shoulder and fell into the water despite his
attempts to keep himself upright. On his way down into the water, Mr. McCarty alleges that the
momentum created trying to save himself propelled his head into the side of the barge, causing
his head injury. Mr. McCarty asserted that he swam to the shoreline and crawled up onto it. He
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did not use his marine radio to call anyone. He waited until a problem occurred loading the barge
to whistle for help. According to Mr. McCarty, he was lying on the shore for about forty-five
minutes before help arrived. The claims administrator denied Mr. McCarty’s claim, and he
protested. Mountain Edge Mining, Inc., has introduced medical records that show Mr. McCarty
was examined by doctors prior to his alleged injury for longstanding problems with his shoulder
and knee. Mountain Edge Mining, Inc., also argues that Mr. McCarty previously sought
treatment for a lesion on his head.

        The Office of Judges examined the record and determined that Mr. McCarty could not
prove by a preponderance of the evidence that he was injured in the course of and as a result of
his employment. To support its decision, the Office of Judges relied on the testimony of four of
Mr. McCarty’s fellow employees. All four employees noted that the upper half of Mr. McCarty’s
body was not wet, and three of them noted that Mr. McCarty’s vest light was off. All of the
coworkers agreed that once a vest light is exposed to water it will blink in perpetuity until the
batteries are removed and the switch is dried off. One employee testified that he witnessed
footprints leading out of the water to the shoreline where Mr. McCarty was lying. At least two of
Mr. McCarty’s fellow employees acknowledged that Mr. McCarty had stated that it is more
advantageous to be injured on a barge because it could result in a higher award. Furthermore,
prior to the alleged injury, Mr. McCarty revealed to one employee that his knee needed medical
attention. Mr. McCarty was also caught on security camera going through personnel files before
his injury. Mr. McCarty also suffered from a long standing left shoulder pain and right knee
problems.

        We agree with the findings of the Office of Judges and conclusions of the Board of
Review. Mr. McCarty has failed to establish that he was injured in the course of and as a result
of his employment with Mountain Edge Mining, Inc. The only evidence that Mr. McCarty
suffered a work-related injury is his own testimony. There were no witnesses to the event to
corroborate the claimant’s version of the events. The Office of Judges properly concluded that
Mr. McCarty’s testimony contained several inconsistencies and was unreliable. The footprints on
the shore leading up to where Mr. McCarty’s was lying, the non-activated strobe light, and his
dry shirt tend to show that he never fell from the barge. Mr. McCarty’s statements that he needed
medical attention for his knee, accompanied by his statement that getting injured on a barge is
more financially advantageous, tend to show fabrication. Finally, all the injuries Mr. McCarty
alleges to have occurred on June 2, 2011, have been treated by medical professionals prior to that
date.

        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 17, 2015

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

DISSENTING:
Justice Brent D. Benjamin




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