                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
ROGER JOHNSON,                                                                    February 23, 2018
                                                                             EDYTHE NASH GAISER, CLERK
Claimant Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs.)   No. 17-0840 (BOR Appeal No. 2051774)
                   (Claim No. 2015032531)

DAVID STANLEY CONSULTANTS, LLC,
Employer Below, Respondent

                              MEMORANDUM DECISION
       Petitioner Roger Johnson, by J. Robert Weaver, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. David Stanley Consultants, LLC, by
Katherine H. Arritt and Jeffrey B. Brannon, its attorneys, filed a timely response.

        The issue on appeal is the compensability of the claim. The claims administrator rejected
the claim on June 25, 2015. The Office of Judges affirmed the decision in its January 12, 2017,
Order. The Order was affirmed by the Board of Review on August 23, 2017. 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. Johnson, a shuttle car operator, alleges that he sustained a work-related injury to his
shoulder and back when he fell down some steps on May 16, 2015. The report of injury
completed the following day indicates Mr. Johnson was walking down some steps when he
slipped and struck his right lower back and right shoulder. He was diagnosed with a low back
sprain and acute low back pain at Logan Regional Medical Center.

       Mr. Johnson was treated for the alleged injury by Anbu Nadar, M.D. In a June 17, 2015,
treatment note, Dr. Nadar noted that Mr. Johnson reported he was walking down a flight of stairs
when he slipped and fell down some steps. He reported that he injured his neck, back, and right
                                                1

shoulder and had suffered persistent symptoms in his neck, low back, and down his right leg
since that time. Dr. Nadar’s impression was cervical and lumbosacral strain. Mr. Johnson was
taken off of work. From July 29, 2015, through September 30, 2015, Mr. Johnson’s overall
condition remained unchanged, and he continued to report neck and back pain.

       Mr. Johnson testified in a deposition on September 22, 2015, that he was carrying his
belongings from the dressing room to the parking lot when he fell on the stairs. It was his first
day working for the employer. Mr. Johnson stated that he was still on the clock when this
happened. He was unsure if anyone saw the accident happen but thought his supervisor may
have. He reported the injury right after it occurred and immediately sought treatment. Mr.
Johnson testified that he was still having minor problems with headaches and neck pain and
major problems with his back. He stated that Dr. Nadar would not release him for work until he
had received an MRI. He admitted to having some nerve damage in the sacral region of his back
in 2007 and being treated for that injury for six months to a year. Mr. Johnson stated that he left
work early on the day in question because the section boss did not like him and the shift foreman
asked him to leave. He asserted that he had no idea why the section boss did not like him and
asked him to leave three hours into his shift on his first day.

       In a January 25, 2016, affidavit, Steve Thompson stated that he is the operations
coordinator for the employer. His job duties include maintaining a safe and organized
environment for various departments in the company. He stated that Mr. Johnson was hired as a
contract laborer and the alleged injury occurred on his first day. Mr. Johnson was driving a piece
of equipment that required the operator to be fully alert. Several times during the shift, he was
observed falling asleep while operating the machinery. About three hours into the shift, he fell
asleep and wrecked the equipment he was driving. Mr. Johnson was then asked to leave for the
day. After he left, Mr. Johnson contacted the company and reported that he fell in the parking lot.
The alleged event was unwitnessed. Mr. Thompson stated that he believed Mr. Johnson filed a
workers’ compensation claim in retaliation for being asked to leave.

        Mr. Johnson testified in an August 30, 2016, deposition that David Stanley Consultants,
LLC, is an employment agency and it is not uncommon to move around jobs when working for
it. He stated that he was operating a shuttle car on the day of the alleged injury and bumped into
a car cable, causing it to pinch the cable. He reported it to an electrician who repaired it. He was
then asked to leave. He stated that he gathered his supplies and was halfway down the stairs to
the parking lot when he fell. He asserted that the shift supervisor came down the steps and helped
him up after he laid there for three to four minutes. The shift supervisor then took pictures of the
accident site, took a statement, and got another witness to observe him doing so. Mr. Johnson
stated that to his knowledge, the supervisor saw him fall.

       The claims administrator rejected the claim on June 25, 2015. The Office of Judges
affirmed the decision in its January 12, 2017, Order. It found that the evidence shows Mr.
Johnson was leaving work when the injury allegedly occurred. The employer contends, via Mr.
Thompson’s affidavit, that Mr. Johnson was asked to leave early for repeatedly falling asleep
while operating heavy machinery and wrecking the machine. Mr. Johnson alleged that he was
asked to leave early because the section boss did not like him; however, he admitted to bumping
                                                 2

a shuttle car cable and severing it, which he had to report to an electrician. The Office of Judges
noted that Mr. Johnson was carrying his belongings when he fell. It was the employer’s
contention that Mr. Johnson filed a claim in retaliation for being asked to leave work. Further, he
provided no witness statements in corroboration of his claims. The Office of Judges found that
while a witness is not necessary to prove a claim, Mr. Johnson suffers from a lack of reliability
which requires persuasive corroboration of his assertion. The Office of Judges noted that after he
was terminated, Mr. Johnson was arrested for making false accusations and framing a man with
an explosive device. The Office of Judges determined that Mr. Johnson’s evidence that he fell at
work on May 16, 2015, is not persuasive. The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its Order on August 23, 2017.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Mr. Johnson alleges that he fell while walking to the parking
lot at work. However, there are no witnesses to corroborate his allegation, and he reported the
alleged fall directly after he was asked to leave work, on his first day, for falling asleep and
wrecking heavy machinery. Further, his version of the events changed significantly between his
two depositions. He first stated that he was unsure if anyone saw his fall. Then, in the second
deposition, he alleged that not only was his fall witnessed by the shift supervisor, the supervisor
also took pictures, took a statement, and got a witness to oversee it all. Mr. Johnson provided no
evidence in support of his assertions.

        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: February 23, 2018

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




                                                3

