Michael L. Ayers v. Beckley Water Company ( 2021 )

FILED
STATE OF WEST VIRGINIA September 22, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
MICHAEL L. AYERS,
Claimant Below, Petitioner
vs.) No. 20-0554 (BOR Appeal No. 2055054)
(Claim No. 2020007716)
BECKLEY WATER COMPANY,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Michael L. Ayers, by counsel Reginald D. Henry, appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). Beckley Water
Company, by counsel Steven K. Wellman, filed a timely response.
The issue on appeal is compensability of the claim. The claims administrator rejected the
claim on October 4, 2019. On January 17, 2020, the Workers’ Compensation Office of Judges
(“Office of Judges”) affirmed the claims administrator’s rejection of the claim. This appeal arises
from the Board of Review’s Order dated June 25, 2020, in which the Board affirmed the Order of
the Office of Judges.
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.
The standard of review applicable to this Court’s consideration of workers’ compensation
appeals has been set out under W.Va. Code § 23-5-15, in relevant part, as follows:
(b) In reviewing a decision of the board of review, the supreme court of appeals
shall consider the record provided by the board and give deference to the board’s
findings, reasoning and conclusions[.]
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(c) If the decision of the board represents an affirmation of a prior ruling by both
the commission and the office of judges that was entered on the same issue in the
same claim, the decision of the board may be reversed or modified by the Supreme
Court of Appeals only if the decision is in clear violation of Constitutional or
statutory provision, is clearly the result of erroneous conclusions of law, or is based
upon the board’s material misstatement or mischaracterization of particular
components of the evidentiary record. The court may not conduct a de novo re-
weighing of the evidentiary record.
See Hammons v. W. Va. Off. of Ins. Comm’r, 235 W.Va. 577, 582-83, 775 S.E.2d 458, 463-64
(2015). As we previously recognized in Justice v. W. Va. Office Ins. Comm’r, 230 W. Va. 80, 83,
736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions of law arising in the
context of decisions issued by the Board. See also Davies v. W. Va. Off. of Ins. Comm’r, 227 W.
Va. 330, 334, 708 S.E.2d 524, 528 (2011).
Mr. Ayers alleges that he sustained an injury to his right shoulder when he slipped and fell
on wet stairs while reading meters in the course of and resulting from his employment on July 17,
2019. Subsequent to the alleged injury, he sought treatment at MedExpress on August 5, 2019, for
an abrasion to the left arm, and shoulder and neck pain. Mr. Ayers reported that “he got his shorts
caught while loading a boat and was pulled about 10 ft.” A physical examination revealed neck
and posterior shoulder pain, as well as an abrasion on his left shoulder. He was diagnosed with a
left shoulder abrasion and neck sprain.
Mr. Ayers was treated again at MedExpress on August 27, 2019, for right shoulder pain
which had not improved since his last visit. He reported that he was injured twenty-two days prior
when his shorts got caught on a boat trailer. He reported that his shoulder had been hurting since
the accident with no improvement. A physical examination noted right shoulder pain and
tenderness. Mr. Ayers was diagnosed with right shoulder pain, and he was referred to an
orthopedist. He was diagnosed with an upper respiratory tract infection.
On September 2, 2019, Mr. Ayers was seen in the emergency department of Raleigh
General Hospital for a right shoulder injury sustained at work. According to the treatment note, he
had been treated at a local MedExpress for pain in the right shoulder as a result of him falling at
work. A physical examination revealed right shoulder pain with reduced range of motion. He was
prescribed medication and diagnosed with a rotator cuff injury. An x-ray of Mr. Ayers’s right
shoulder taken on September 3, 2019, revealed satisfactory alignment.
Mr. Ayers was referred for an orthopedic evaluation with Raleigh Orthopedics on
September 3, 2019, for right shoulder pain. The treatment note authored by Megan Dincher, PA-
C, states, “the injury happened at work on/or around July 17-18, 2019.” Mr. Ayers stated he was
working for the water company on a rainy day when he slipped and fell down stairs. He reported
severe right shoulder pain, which was aggravated by movement. A physical examination found
good right shoulder range of motion with no evidence of weakness or impingement. Mr. Ayers
was diagnosed with internal derangement of the right shoulder and right shoulder pain. He was
referred for a right shoulder MRI, and he received a right shoulder injection.
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On September 25, 2019, Mr. Ayers returned to MedExpress for right shoulder and right rib
complaints. According to the treatment note prepared by Jessica Wickline, D.O., he reported that
he “fell at work on 7/17/19 and he came in here for that.” The treatment note further states the
following:
“Upon reviewing his chart, he had no report of injury for 7/17/19 accident but was
seen on 8/5/19 for an injury of his left shoulder, right shoulder, and neck after a
non-work related accident. He got his shorts hung on a boat and was dragged down
road. At that visit, he saw me and did not mention his work injury. Today he states
that he fell at work prior to that and was having pain prior to that injury. His primary
concern that day was pain in his neck and the infected abrasion on his left arm but
he did not mention pain on the right. He was also seen here by a different provider
on 8/27/19 for the right shoulder pain. That provider did not document that he had
a work-related injury. He was referred to ortho at that time. He said that she ordered
an MRI of his shoulder and suspected rotator cuff tear.”
Mr. Ayers was diagnosed with right shoulder pain and a contusion to the right front wall of the
thorax. He was restricted to no pushing/pulling, reaching or overhead reaching; and he was
restricted from carrying more than five pounds with the right upper extremity. An MRI was
ordered, and he was prescribed medication.
By Order dated October 4, 2019, the claims administrator rejected Mr. Ayers’s application
for workers’ compensation benefits. The claims administrator alleged that he did not immediately
give notice to the employer of an injury, which weighs against a finding of compensability. It was
also alleged that Mr. Ayers injured his shoulder in a nonwork-related boat trailer accident. The
claims administrator reasoned that the evidence does not support a work-related injury. Mr. Ayers
protested the claims administrator’s decision.
Louis Wooten, Superintendent of Beckley Water Company, completed an affidavit on
December 13, 2019, which states the following:
“[Mr. Ayers] took a sick day on August 5, 2019. I saw him in the office later that
day, after he had suffered some sort of boating accident. He was wearing a ‘tank
top’ or ‘muscle shirt’ . . . and I could see what appeared to be fresh abrasions on his
back/shoulder. The first time we became aware that [he] was seeking to file a
Workers’ Compensation claim was September 3, 2019. [Mr. Ayers] worked his
normal job, without restrictions, until September 3, 2019. On that day, I met with
him in the office and he was holding his arm and shoulder. He said he could not
drive, so I offered him a restricted duty position answering phones, and he said
could not even do that.
I spoke with Mr. Larry Underwood, Supervisor of Meter Readers, regarding this
claim. Mr. Underwood said that Mr. Ayers came to him on September 3, 2019,
reporting that he had fallen while reading meters in an area called Cabell Heights.
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[He] asked Mr. Underwood if he recalled [if Mr. Ayers] reporting the injury when
it occurred, and Mr. Underwood said no, this was the first he heard of it.”
The affidavit states that it was Beckley Water Company’s policy to have injuries reported
“immediately or as soon as practicable.” Mr. Ayers did not report an injury until September 3,
2019.
At a hearing regarding the protest on December 13, 2019, Mr. Ayers testified that he is a
meter reader and that he fell on wet, wooden stairs after reading a meter on July 17, 2019. He
stated that he mentioned the fall to his coworkers on that date, and he was able to finish his shift.
Eventually, right shoulder pain increased to the point when he had to seek treatment at Raleigh
General Hospital on September 2, 2019. He informed his supervisor of the alleged compensable
injury the following day. Mr. Ayers admitted that he was injured on August 4, 2019, when he was
pulled by a boat. However, he stated that he only suffered scrapes on his left arm from that incident.
On cross-examination, he acknowledged that the treatment notes from MedExpress dated August
5, 2019, and August 27, 2019, do not mention him falling down stairs while working. He initially
alleged that he informed MedExpress of the alleged compensable injury because he stated that the
treatment notes mention right shoulder pain. He later clarified his testimony by stating that, “I
didn’t think that it was actually hurt until it got worse with time still using it.” Mr. Ayers testified
that he waited until September 2, 2019, to notify his supervisor of the alleged injury because “[m]e
and him don’t see eye to eye.” He also admitted that he took a sick day on August 5, 2019, after
the boating injury.
On January 17, 2020, the Office of Judges concluded that Mr. Ayers did not prove by a
preponderance of the evidence that he sustained an injury in the course of and as a result of his
employment. The Office of Judges reasoned that the evidence is simply too inconsistent to sustain
the application for workers’ compensation benefits. It was noted that Mr. Ayers did not inform his
supervisor of an injury on July 17, 2019, and his subsequent treatment notes from MedExpress
dated August 5, 2019, and August 27, 2019, indicate that his right shoulder was injured from a
non-occupational injury. Accordingly, the Office of Judges affirmed the claims administrator’s
Order dated October 4, 2019. The Board of Review adopted the findings of fact and conclusions
of law of the Office of Judges and affirmed the January 17, 2020, decision on June 25, 2020.
After review, we agree with the decision of the Office of Judges, as affirmed by the Board
of Review. Although Mr. Ayers alleges that he suffered an injury in the course of his employment
as a meter reader for Beckley Water Company on July 17, 2019, the undisputed evidence indicates
that he did not seek medical attention and did not provide written notice of the injury to the
employer at that time. When he sought medical treatment on August 5, 2019, Mr. Ayers reported
that he was injured while loading a boat trailer. He did not complete a claim application for the
alleged injury until September 25, 2019. The reliable and credible evidence of record supports the
decision that it was more likely than not that his shoulder condition is the result of his boat trailer
accident.
Affirmed.
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ISSUED: September 22, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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