Appeal No. 2051752 (Claim No. 2016012881)
Dana Davis, by Patrick K. Maroney, his attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Mondi Bags USA, LLC, by Mark J. Grigoraci, its
attorney, filed a timely response.
issue on appeal is whether a compensable injury occurred. The
claims administrator denied the application for benefits on
November 18, 2015. The Office of Judges affirmed the claims
administrator's decision on December 21, 2016. The Board
of Review affirmed the Order of the Office of Judges on May
19, 2017. The Court has carefully reviewed the records,
written arguments, and appendices contained in the briefs,
and the case is mature for consideration.
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
Davis, a press operator for Mondi Bags USA, LLC, alleged that
he injured his shoulder on November 11, 2015, while at work.
Mondi Bags USA, LLC, submitted an internal incident form
noting that while Mr. Davis reported that his shoulder was
injured, it had reason to believe this was inaccurate. Mr.
Davis alleged that his shoulder was sore and that the
shafting of rolls was not helping it. Mr. Davis stated that
he warned the employer that he did not need to see a doctor
but that the shaft needed to be changed or he was going to
get injured. Mr. Davis was advised not to strain to release
the airshaft; rather he should use a mallet to unstick the
shaft. Eventually, Mr. Davis alleged that he injured his
shoulder dealing with the faulty equipment.
November 16, 2015, audio recording and written transcript of
Mr. Davis's story was obtained. Mr. Davis indicated he
was hired on July 13, 1979, and he works as a press operator.
He reported he was injured on November 4, 2015, sometime
between 4:30 a.m. and 5:00 a.m. Mr. Davis stated he told the
safety man that he got hurt. He stated that he got hurt
before this and was off for almost eleven months. He stated
that his previous injury was due to the faulty airshafts. He
stated he started noticing sharp pain in his right shoulder
after he pulled the core off of a shaft. Mr. Davis testified
that he saw Dr. Macio, the company doctor, who told him it
might be a sprain but he could not tell. Mr. Davis stated he
was instructed to do light duty and see if he got better. He
reported that he has an appointment with a specialist, Dr.
Capito, on November 30, 2016. Mr. Davis stated he had a prior
workers' compensation injury to the right shoulder about
five years ago for which he received therapy and was released
to return to work. He also stated he had an operation in 2014
on his left shoulder. On November 18, 2015, the claims
administrator denied Mr. Davis's application for
workers' compensation benefits.
26, 2016, Mr. Davis testified in a deposition. He reiterated
the mechanism of injury as stated in his November 16, 2015,
recorded statement. He testified he was not having any
problems with his right shoulder prior to the incident. He
stated that he told Clarence Culbreath about his injury as
well as Lawrence Wright, the Safety Director. He stated an
assistant showed Mr. Wright that it was hard to pull off the
core and advised that they have problems with the airshafts.
Mr. Davis stated he told Mr. Wright that if he did not get
better then he would probably need to go see a doctor. He
waited a week and then advised Mr. Wright that he needed to
see someone, as he was not getting better. He estimated the
shaft weighed about eighty-five pounds or more. He stated he
had problems raising his arm up and doing things at work. Mr.
Davis went to Dr. Capito because he had treated him
previously for shoulder issues. He testified Dr. Capito
examined him and sent him for an MRI, which he understood to
reveal a torn rotator cuff. Mr. Davis stated Dr. Capito
recommended surgery, which was performed on or about February
10, 2016. He testified he is still under Dr. Capito's
care and has not been released to work. With regard to his
prior injury in 2014 to the left shoulder, Mr. Davis
testified that the symptoms he had then are similar to his
symptoms now in the right shoulder. He also testified he was
doing about the same thing when he was injured in 2014, but
that workers' compensation claim was approved. He
underwent surgery in 2014 on the left shoulder. Mr. Davis
also stated he had a prior injury to his right shoulder
approximately five or six years ago for which he received
therapy and returned to work.
Office of Judges found that Mr. Davis did not establish that
he sustained a personal injury in the course of and as a
result of his employment. The Office of Judges noted that Mr.
Davis had not submitted any medical evidence such as a report
of injury, MRI report, operative report, or treatment records
from Dr. Capito. Though Mr. Davis testified to an injury from
an isolated fortuitous event at work, there is no other
evidence of this occurring. Further, there is no opinion
connecting the alleged injury to the alleged rotator cuff
tear. The Board of Review adopted the findings of the Office
of Judges and affirmed its Order. After review, we agree with
the findings of the Office of Judges and conclusions of the
Board of Review.
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 IN BY: Chief Justice Allen H. Loughry II Justice
Robin J. Davis Justice Margaret L. Workman Justice Menis ...