                             STATE OF WEST VIRGINIA


                          SUPREME COURT OF APPEALS
                                                                                    FILED
JENNIFER R. FERRELL,                                                               June 8, 2017
                                                                              RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA


vs.)   No. 16-0581 (BOR Appeal No. 2050963)
                   (Claim No. 2015015982)

CHARLESTON AREA MEDICAL CENTER,
Employer Below, Respondent

                             MEMORANDUM DECISION
       Petitioner Jennifer R. Ferrell, by Patrick K. Maroney, her attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Charleston Area Medical
Center, by H. Dill Battle III, its attorney, filed a timely response.

        The issue on appeal in this case is the compensability of the claim. On December 22,
2014, the claims administrator rejected Ms. Ferrell’s application for workers’ compensation
benefits. The Office of Judges affirmed the decision on November 17, 2015. The Board of
Review affirmed the Office of Judges’ Order on May 20, 2016. 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.

         Ms. Ferrell, a nurse manager for Charleston Area Medical Center, was injured on
December 4, 2014, when she was struck by a delivery truck. A Security Department Incident
Report completed by Charleston Area Medical Center’s security personnel stated that she began
crossing the street behind the truck while it was reversing. She was knocked to the ground and
the truck’s rear wheel rolled over her. A Traffic Crash Report completed by Corporal Jones
states that a truck driver was backing up toward a loading dock and did not see Ms. Ferrell.
There were two witnesses to the incident, Brian Boland and Michelle Rene Justice. Mr. Boland
stated that he was approaching the loading dock when he witnessed a person being struck by a
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delivery truck. He rendered aid. Ms. Justice stated that she was walking down the service alley
when she saw Ms. Ferrell walking down 32nd Street. She witnessed her being hit and run over by
the delivery truck. Corporal Jones also interviewed Ms. Ferrell who reported that she left her
house and was walking to work at Charleston Area Medical Center. The next thing she knew, she
was knocked down and ran over. Corporal Jones also reviewed Charleston Area Medical
Center’s surveillance video of the incident. He stated that it shows Ms. Ferrell walking in the
middle of the roadway when she was struck by the truck. Corporal Jones concluded that a
pedestrian, when walking on the roadway, has to walk adjacent to the roadway on the left side
facing traffic. Every pedestrian must yield the right-of-way to vehicles. Ms. Ferrell was
determined to be at fault for the accident for walking in the middle of the roadway and not
yielding to the truck.

        The claims administrator rejected the claim on December 22, 2014. It stated that the
accident did not occur on Charleston Area Medical Center’s property. It occurred in the middle
of 32nd Street, which is owned by the City of Charleston. Ms. Ferrell testified in a deposition on
July 16, 2015, that she works for Charleston Area Medical Center and walks to work every day.
She stated that there were no trucks present when she turned onto 32nd Street. When she made it
to the loading dock, she was struck by a delivery truck. The driver did not notice that he hit her
and the truck ran completely over her. She stated that she believes she was struck on Charleston
Area Medical Center’s property because there are “No Smoking” signs in the area where she was
hit. Also, she was close to the loading bay when she was pulled from under the truck. Ms. Ferrell
further testified that she was struck in an area where she normally crosses the street to enter the
loading dock’s stairway, which is close to Charleston Area Medical Center. She testified that she
underwent two surgeries for her arm, missed three months of work, and underwent months of
physical therapy.

        In a September 21, 2015, affidavit, Raymond George, stated that he is the construction
manager for Charleston Area Medical Center and is familiar with the area where Ms. Ferrell was
hit. He stated that she was struck on 32nd Street, which is a public street and not on Charleston
Area Medical Center’s property. Moreover, he stated that he contacted a design technician for
the City of Charleston who informed Mr. George that to the best of his knowledge, the alley
behind Charleston Area Medical Center between 31st Street and 33rd Street is public. The design
technician could not find any City Council action closing the alley or record stating that it was
public. On September 29, 2015, Mr. Boland stated in an affidavit that he had an unobstructed
view of the accident. He witnessed Ms. Ferrell walking on 32nd Street toward Charleston Area
Medical Center as the delivery truck was backing up toward her. The truck hit her from behind
and ran over her. Mr. Boland stated that he ran out of the loading dock and onto 32nd Street to
render aid. When he arrived, Ms. Ferrell was lying in the street. He stated that he reviewed a
surveillance video of the scene and asserted that there is no doubt that she was on 32nd Street
when she was struck. Charleston Area Medical Center submitted two pictures and footage from
its security video. Two people can be seen talking in the middle of the road. Above them, on the
left side, Ms. Ferrell can be seen being struck by the delivery truck. She is in the middle of the
road.


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        The Office of Judges affirmed the claims administrator’s rejection of the claim on
November 17, 2015. The Office of Judges applied Williby v. West Virginia Office of Insurance
Commissioner and First Century Bank, 24 W.Va. 358, 686 S.E.2d. 9 (2009), which states that an
injury incurred while traveling to work, and not on the premises of the employer, does not give
right to a compensable injury unless the place of injury was brought into the scope of
employment by an express or implied requirement in the contract of employment. It further
states that an employee is entitled to compensation for an injury sustained in going to or from
work only where such injury occurs within the zone of employment and that zone must be
determined by the circumstances of the particular case presented. The Office of Judges
determined that a preponderance of the evidence indicates that Ms. Ferrell was walking to work,
that she was not struck on Charleston Area Medical Center’s property, and that she was not
injured in the course of or resulting from her employment. Ms. Ferrell believes that she was on
Charleston Area Medical Center’s property when she was injured; however, video of the injury
indicates she was walking in the middle of a residential road when she was struck. The Office of
Judges found no evidence that she was performing any express or implied duties for the
employer while she was walking to work. The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its Order on May 20, 2016.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Two witnesses to the accident both stated that Ms. Ferrell was
in the middle of the road when she was struck. Surveillance footage of the accident clearly shows
her in the middle of the road, as affirmed by Corporal Jones’s traffic report, Mr. George, and the
witnesses. Per Williby, since Ms. Ferrell was not struck on the employer’s property and was not
performing any express or implied duties, the claim was properly rejected.

        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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