                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

ALITA SELLERS,                                                                        FILED
Claimant Below, Petitioner                                                        March 25, 2016
                                                                                RORY L. PERRY II, CLERK

                                                                              SUPREME COURT OF APPEALS

                                                                                  OF WEST VIRGINIA

vs.)   No. 15-0379 (BOR Appeal No. 2049834)
                   (Claim No. 2014008410)

WEST VIRGINIA UNIVERSITY - BOR,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Alita Sellers, by George Zivkovich, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. West Virginia University - BOR, by H.
Dill Battle III, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated April 1, 2015, in which
the Board affirmed a September 4, 2014, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s September 18, 2013,
decision which denied the claim because the disability complained of was not due to a
compensable injury or disease. 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. Sellers, a professor, alleges she was injured in the course of her employment on
August 28, 2013, when she fell and struck her elbow, left shoulder, knees, and head in a hallway.
A Wood County rapid responder patient care record provides that emergency services was called
for Ms. Sellers and lists the cause of the fall as a syncopal episode. It was noted that Ms. Sellers
previously suffered a transient ischemic attack in January of 2013. Ms. Sellers was transported to
Camden Clark Memorial Hospital emergency room where it was again noted that she fainted
while at work. A CT scan taken that day lists the relevant history as a syncopal episode and fall.
                                                 1
Ms. Sellers was treated by Steven Michael Miller, M.D. for the injury from August to December
of 2013. Dr. Miller’s notes indicate that Ms. Sellers required surgery on her elbow due to a work-
related injury.

         Ms. Sellers signed an incident report on August 30, 2013. The report indicates that she
felt tired while teaching a class and had to sit down. On the way to her office, she blacked out
and fell. The report was completed by Katie Wooton. In an affidavit, Ms. Wooton stated that she
works with Ms. Sellers. Ms. Wooton stated that she entered the hallway when Ms. Sellers fell
and that she assisted her. Ms. Wooton asserts Ms. Sellers stated that she was feeling tired while
teaching and had to sit down so she was walking back to her office when she blacked out and
fell.

        Ms. Sellers testified in a hearing before the Office of Judges on June 10, 2014. She stated
that she was talking to a student, John Thurmond, when she took a step forward and fell on
August 28, 2013. She asserted that she did not experience dizziness or any kind of loss of
consciousness. Ms. Sellers denied telling Katie Wooton that she fainted. She also denied telling
the emergency responders that she fainted. She testified that when she experienced a transient
ischemic attack in January of 2013 she did not lose consciousness or experience dizziness. Ms.
Sellers denied telling any physician or nurse that she lost consciousness or was dizzy prior to
falling. She admitted that she signed the incident report but asserts that she did not read it
beforehand because she was on medication and in pain. Mr. Thurmond also testified before the
Office of Judges. He stated that he was Ms. Sellers’s student and was present when she fell. He
asserted that she was getting ready to speak to him when she slipped and fell; however, he did
not see anything on the floor on which she could have slipped. He stated that she did not appear
to be dizzy or off balance prior to the fall.

        The claims administrator rejected Ms. Sellers’s application for workers’ compensation
benefits on September 18, 2013. The Office of Judges affirmed the claims administrator’s
decision in its September 4, 2014, Order. It found that the record establishes that Ms. Sellers was
injured while at work. The Office of Judges noted that she had a prior transient ischemic attack
and/or syncope. Though she denied losing consciousness on the day of the fall, the Office of
Judges found that the likely cause of the fall was an episode of syncope. The Office of Judges
concluded that there is no evidence in the record demonstrating that there was a work-related
reason for Ms. Sellers’s fall. The Office of Judges further determined that even if she simply fell,
the injury does not result from her work because simply falling is not an isolated fortuitous event
resulting from her employment as a professor. The Board of Review adopted the findings of fact
and conclusions of law of the Office of Judges and affirmed its Order on April 1, 2015.

       On appeal, Ms. Sellers argues that there is no medical evidence to justify the inference
that she fainted. She asserts that it was an idiopathic fall that occurred in the course of her
employment and should therefore be compensable. West Virginia University argues that though
Ms. Sellers was injured in the course of her employment, the injury did not occur as a result of
her employment. It asserts that even if she fell instead of fainted, the fall still did not result from
her employment, and she failed to meet her burden of proof.

                                                  2
         After review, we agree with the reasoning of the Office of Judges and the conclusions of
the Board of Review. The evidentiary record indicates that Ms. Sellers has a history of transient
ischemic attack and/or syncope. Treatment notes from Camden Clark Memorial Hospital provide
that she fainted while at work and hit her face, head, and elbow. The emergency responder report
from the day of the fall also indicates that she lost consciousness, as does the accident report
which was signed by Ms. Sellers. It is the claimant’s burden to prove that she was injured in the
course of and resulting from her employment. She did not present enough evidence in this case
to justify reversing the Board of Review’s decision.

        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 25, 2016

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




                                                3
