                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               April 6, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
MIRIAM HARBERT,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-1289 (BOR Appeal No. 2048453)
                   (Claim No. 2013005132)


KROGER LIMITED PARTNERSHIP I,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Miriam Harbert, by Patrick K. Maroney, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Kroger Limited Partnership, by
Sean Harter, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated November 21, 2013, in
which the Board affirmed a May 15, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 21, 2012,
decision to deny 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. Harbert, an employee of Kroger Limited Partnership I, allegedly injured herself on
August 8, 2012, when she tripped over a protruding drain plug in the floor. Ms. Harbert was then
taken to Thomas Memorial Hospital where she was diagnosed with moderate degenerative
changes with sclerosis, osteophytosis and joint space narrowing. There was no evidence of acute
fracture, traumatic subluxation, or dislocation. Ms. Harbert filed an application for workers’
compensation benefits and the claims administrator denied her claim. Ms. Harbert protested.
Statements were taken from Tony Lilly, Theresa Whitener, Theresa Ray, Paul Wheeler, and
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Jennifer Hall. The testimony of Mr. Lilly and Ms. Hall indicate that prior to the August 8, 2012,
alleged injury, Mr. Lilly and Ms. Ray predicted that Ms. Harbert would fall on Wednesday,
August 8, 2012. Mr. Lilly opined that this would happen because Ms. Harbert falls when she gets
mad. Mr. Lilly noted that Ms. Harbert despised working late on Wednesdays, which she was
required to do on the day in question. Furthermore, she had just recently been denied her desired
transfer. Ms. Whitener testified that on the day of the injury she overheard Ms. Harbert having an
argument over the phone about a banking issue that made her visibly agitated minutes before the
alleged injury. Mr. Wheeler testified that he saw Ms. Harbert look around and then suddenly fall
to the ground. Mr. Wheeler then went to assist Ms. Harbert. Ms. Hall, the manager, made a copy
of the surveillance tape that showed Ms. Harbert falling.

        The Office of Judges determined that Ms. Harbert failed to establish she was injured in
the course of and as a result of her employment. The Office of Judges reviewed the video of the
fall. Based upon the video, the consistent statements of her coworkers, and the inconsistencies in
Ms. Harbert’s testimony, the Office of Judges concluded that Ms. Harbert fell on purpose. The
Office of Judges then added that even assuming that Ms. Harbert’s fall was actually a fortuitous
event, that there was still was no compensable injury. The only medical report of record states
that she has hip pain after a fall at work. There was no dislocation, subluxation, or any evidence
of an acute injury. As a result the Office of Judges affirmed the claims administrator’s decision
to deny the claim. The Board of Review adopted the findings of the Office of Judges and
affirmed its Order.

         We agree with the findings of the Office of Judges and conclusions of the Board of
Review. The only evidence that tends to show Ms. Harbert was injured in the course of and as a
result of her employment is her own testimony. Her testimony was properly disregarded because
it is refuted by many of her coworkers and the video of the fall.

        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: April 6, 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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