                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                                 July 9, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
SHARI STEWART,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0978 (BOR Appeal No. 2049337)
                   (Claim No. 2014017502)

CABELA’S, INC.,

Employer Below, Respondent



                              MEMORANDUM DECISION
      Petitioner Shari Stewart, by William C. Gallagher, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Cabela’s, Inc., by Jeffrey B.
Brannon, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated August 26, 2014, in
which the Board affirmed a March 21, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 9, 2013,
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.

        Ms. Stewart, a seasonal employee, alleges that she was injured in the course of her
employment on November 7, 2013, while stocking a shelf. She testified in a hearing before the
Office of Judges that she initially felt lower back pain after lifting a heavy box and restocking a
bottom shelf. She then stood up and felt a pull and a crack in her lower back. She requested that
she be allowed to leave early and Phil Hartman, her supervisor, authorized it. She admitted that
she filled out two reports of injury and alleged in one that she was injured while lifting boxes.
She asserted that the discrepancy was due to confusion caused by her medication. She testified
that she had no back problems prior to the alleged injury. Ms. Stewart asserted that she
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mentioned a work-related injury to all of the physicians that have treated her. Treatment notes by
Ohio Valley Medical Center stated that Ms. Stewart was seen on November 8, 2013, for lower
back pain that began the previous day at work. She was diagnosed with acute lumbosacral strain
with muscle spasm.

        Several statements and affidavits by Cabela’s, Inc., employees were submitted. Phil
Hartman stated that he had no recollection of Ms. Stewart discussing back issues with him. Ed
Richards, a co-worker, stated that on November 8, 2013, he spoke with Ms. Stewart at the end of
their shift, and she did not mention a back injury or ailment. Janie Meintel said in an affidavit
that Ms. Stewart told her she did not know if the injury was work-related or how the injury
occurred. Ms. Stewart also told Ms. Meintel that her inability to work was not due to a work-
related injury. Scott Messenger, a manager at Cabela’s, Inc., stated that, as far as he knew, Ms.
Stewart never reported a back injury to anyone on her shift. When she called off of work, she
stated that her feet hurt and wanted to know if there was light duty available with less walking.
Finally, Alexander Bryum, a supervisor, asserted that Ms. Stewart did not mention an injury
when she called in, and she never reported an injury or requested medical treatment from the on-
site medical treatment room.

       Prasadarao Mukkamala, M.D., performed a record review in which he diagnosed
nonspecific lower back pain. He stated that, based on the records, the medical evidence does not
support Ms. Stewart’s allegation that she was injured at work. He opined that her current
complaints are the result of pre-existing degenerative lumbar spondyloarthropathy. He based this
conclusion on an MRI taken one week after the alleged injury that showed disc desiccation from
L3-4 to L5-S1.

        The claims administrator rejected the claim on December 9, 2013. The Office of Judges
affirmed the decision in its March 21, 2014, Order. It found that Ms. Stewart denied that she
suffered an injury when she went to Ohio Valley Medical Center on November 8, 2013. The
Office of Judges determined that she was treated at MedExpress on November 11, 2013. That
report indicates that she had back pain that began on November 7, 2013, but it did not note an
injury. It was found that the first medical report to state that Ms. Stewart sustained an actual
injury was a treatment note by MedExpress dated November 19, 2013. The Office of Judges
further determined that the only evidence that she reported an injury to her employer on
November 7, 2013, is her own testimony. The management team at Cabela’s, Inc., denies being
contacted regarding a back injury and stated that Ms. Stewart cited other medical conditions for
her absence, such as eye problems, a neck rash, and a doctor’s appointment for a leg MRI. The
Office of Judges stated that it is Ms. Stewart’s burden to establish that she sustained a work-
related injury and held that she failed to do so in this case. The inconsistencies in the record
rendered her assertion unreliable. The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its Order on August 26, 2014.

        On appeal, Ms. Stewart argues that she timely reported her injury to Cabela’s, Inc. She
asserts that she was allowed to leave work the day the injury occurred, and she sought treatment
the following day for her lower back pain. Cabela’s, Inc., argues that Ms. Stewart failed to report
an injury when she was initially treated, failed to report her alleged injury to anyone at her place
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of employment, and failed to demonstrate an isolated fortuitous event. It further asserts that she
has a history of rheumatoid arthritis and has suffered from bone and joint pain for years.

        After review, we agree with the reasoning of the Office of Judges and the conclusions of
the Board of Review. Ms. Stewart has not demonstrated that she sustained an injury in the course
of and resulting from her employment. Ms. Stewart initially reported to Ohio Valley Medical
Center that she had back pain that started at work the night before. She did not, however, state
that she suffered an injury. She did not report an injury to any of her superiors either on the night
of the injury or in the days following when she called off of work. In fact, when questioned, she
stated that she did not know if she had a work-related injury and that her pain was probably just
the result of a lot of walking. She also reported inconsistent mechanisms of injury when she did
assert that she suffered a work-related injury.

        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: July 9, 2015

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




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