Appeal No. 2052087, Claim No. 2017010931
Elaine Kessinger, by Robert L. Stultz, her attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Penn National Gaming, Inc., by Stephen M.
Mathias, its attorney, filed a timely response.
issue on appeal is compensability. The claims administrator
rejected the claim on September 30, 2016. The Office of
Judges affirmed the decision in its June 29, 2017, Order. The
Order was affirmed by the Board of Review on December 28,
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
Kessinger, a table dealer, alleges that she was injured in
the course of her employment on August 12, 2016. An August
31, 2016, treatment notes from Jehangir Madan, CRNP,
indicates Ms. Kessinger was seen for neck pain with bilateral
upper extremity radiculopathy with an onset date of August
12, 2016. It was noted that her job required frequent
extension of the upper body to deal cards. The assessment was
neck pain and cervicalgia. She was given medication and taken
off of work for two weeks due to "severe new onset neck
pain with upper arm pains."
employees' and physicians' report of injury,
completed on September 3, 2016, indicates Ms. Kessinger
alleged injuries to her neck and strain of the right
trapezius muscle on August 12, 2016. It was noted that she
was diagnosed with cervical and thoracic sprains/strains. Ms.
Kessinger attached a description of the events to the report.
It states that over the course of her shift on August 12,
2016, Ms. Kessinger began experiencing severe neck and back
pain that worsened all night. She had been stepping up off of
her broken chair to deal cards. She had to lean forward and
reach, pull, and stretch. She noted that the pain started in
her neck and moved down her arm and into her back. She stated
that she took aspirin, but the pain worsened over the
following few days. She alleged that she would not have had
to bend and reach if her chair was not broken.
treatment note from Jefferson Medical Center dated September
5, 2016, indicates Ms. Kessinger reported to the emergency
room with right neck and shoulder pain. She was diagnosed
with cervical strain and given medication. Ms. Kessinger
underwent physical therapy in September and October of 2016.
Hguyen stated in a January 26, 2017, affidavit that he is the
poker room manager. Ms. Kessinger told him by telephone on
September 2, 2016, that she was injured on August 12, 2016,
due to stretching to deal cards. Mr. Hguyen noted that she
did not report the injury until twenty-one days after it
allegedly occurred. Mr. Hguyen stated that he had not
received any complaints of broken chairs as of the date of
the alleged injury. Laura Gatto stated in an affidavit that
same day that she is the risk manager/compliance officer for
the employer. She stated that she is the point of contact
between employees, supervisors, and customers when it comes
to situations or incidents requiring risk management. Ms.
Gatto noted that she had received no complaints of broken
chairs from any employee or supervisor even after she asked
them. Lastly, Jared Varona stated in a January 26, 2017,
affidavit that she is the poker shift supervisor. On August
29, 2016, she received a phone call from Ms. Kessinger during
which Ms. Kessinger indicated that she wished to make a
workers' compensation claim. She did not relay a specific
incident that caused her injury and did not report the injury
until seventeen days after it occurred. Ms. Varona had
received no complaints of broken chairs.
claims administrator rejected the claim on September 30,
2016. The Office of Judges affirmed the decision in its June
29, 2017, Order. It found that Ms. Kessinger did not report
the injury until seventeen days after it allegedly occurred.
Her assertion that her chair was broken and required her to
stretch and bend more was refuted by the affidavits of Ms.
Varona, Ms. Gatto, and Mr. Hguyen. The Office of Judges found
that the burden of proof falls on the claimant to show that
she sustained a work-related injury. The failure to report
the injury and the medical evidence of record was found to
support the rejection of the claim. The off-work slip dated
August 31, 2016, stated that Ms. Kessinger had a new onset of
pain. The report of injury, signed on September 3, 2016,
indicates Ms. Kessinger was first seen for the compensable
injury on September 5, 2016. The September 5, 2016, treatment
note states that she was seen at Urgent Care on August 26,
2016; however, there are no medical records from that day.
The Office of Judges concluded that the medical records rely
solely on Ms. Kessinger's allegations of the basis of the
injury. A preponderance of the evidence did not support the
compensability of the claim. The Board of Review adopted the
findings of fact and conclusions of law of the Office of
Judges and affirmed its Order on December 28, 2017.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. Ms.
Kessinger bears the burden of proof to show that she was
injured in the course and as a result of her employment. She
failed to meet her burden of proof to show that she sustained
a work-related injury in the course of her employment.
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 Margaret L. Workman, Justice
Robin J. Davis, Justice Menis E. Ketchum, Justice Allen H.