ANTHONY D. MULLINS, Claimant Below, Petitioner
B.E. AEROSPACE, INC. Employer Below, Respondent
Appeal No. 2051161) (Claim No. 2016014896)
Anthony D. Mullins, by William B. Gerwig III, his attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. B. E. Aerospace, Inc., by
Katherine H. Arritt, its attorney, filed a timely response.
issue on appeal is the compensability of the claim. On
December 9, 2015, the claims administrator denied
compensability of the claim. The Office of Judges affirmed
the decision in its March 10, 2016, Order. The Order was
affirmed by the Board of Review on June 24, 2016. The Court
has carefully reviewed the records, written arguments, and
appendices contained in the briefs, and the case is mature
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
Mullins alleged he injured his left shoulder on July 20,
2015, when he and a co-worker were moving a 100 pound form
from a table to a cart. He did not seek medical treatment for
the left shoulder and continued to work. In October of 2015,
Mr. Mullins scheduled a doctor's appointment after he
began to experience more pain in the shoulder. Stephen Shank,
M.D., treated Mr. Mullins for complaints of left shoulder
pain on November 30, 2015. Mr. Mullins provided a history of
experiencing sudden pain from his neck to his elbow at work
on July 20, 2015, when he was lifting a 100 pound mold. Dr.
Shank diagnosed left shoulder pain, left sprain of the
acromioclavicular joint, and acromioclavicular joint injury.
He recommended physical therapy.
employee's and physicians first report of injury was
completed on December 1, 2015. The claims administrator
denied compensability on December 9, 2015, as the injury did
not occur in the course of and resulting from Mr.
Mullins testified before the Office of Judges on February 2,
2016, that he and a co-worker were moving a 100 pound form on
July 20, 2015, when he felt a pop in his left shoulder. Mr.
Mullins stated he completed an accident report they day of
the injury. He also stated there were witnesses to the
injury.He acknowledged a
prior left elbow injury in 2013, but denied a prior left
shoulder injury. Mr. Mullins continued to work, performing
his regular job duties after July 20, 2015. At the time of
the injury, he felt pain in the entirety of his left arm,
similar to the symptoms he had with the 2013 elbow injury.
Mr. Mullins's ongoing symptoms included a sore spot near
Office of Judges affirmed the claims administrator's
denial of compensability on March 10, 2016. It noted the
specific issue to be decided was the rejection of the claim
due to the injury not occurring in the course of and
resulting from his employment. The Office of Judges found Mr.
Mullins said he completed an accident report but this
document was not in evidence. The Office of Judges also found
that Mr. Mullins was working with a co-worker at the time of
the injury but no statement from the co-worker was in
evidence. It also found that although Mr. Mullins alleged he
was injured on July 20, 2015, no medical treatment was sought
until November 30, 2015. The Office of Judges then determined
there was insufficient evidence on which to make a finding of
Board of Review adopted the findings of fact and conclusions
of law and affirmed the Office of Judges' Opinion on June
24, 2016. After review, we agree with the Board of Review.
Mr. Mullins alleged he was injured on July 20, 2015. However,
he did not submit an accident report, nor did he submit a
statement from his co-worker. Additionally, he did not seek
medical treatment until November 30, 2015. Mr. Mullins
continued to work between July 20, 2015, and November 30,
2015. The preponderance of the evidence does not support the
finding of a work-related injury.
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
CONCURRED: Chief Justice Allen H. Loughry II Justice Robin J.
Davis Justice Margaret L. Workman Justice Menis E. Ketchum
Justice Elizabeth D. Walker