William C. Carper v. S&S Enterprises, LLC.

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

WILLIAM C. CARPER, FILED
Claimant Below, Petitioner November 6, 2020
EDYTHE NASH GAISER, CLERK

vs.) No. 19-0820 (BOR Appeal No.2053610) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
(Claim No. 2019002477)

S&S ENTERPRISES, LLC,
Employer Below, Respondent

MEMORANDUM DECISION
Petitioner William C. Carper, by Counsel Reginald D. Henry, appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). S&S Enterprises,
LLC, by Counsel Jordan E. Martin and T. Jonathan Cook, filed a timely response.

The issue on appeal is compensability of the claim. On August 15, 2018, the claims
administrator rejected the claim. The claims administrator issued Corrected Orders on October 5,
2018, and October 10, 2018, stating that Berkley Net did not have jurisdiction to enter the prior
respective Order. The Workers’ Compensation Office of Judges (“Office of Judges”) issued a
decision dated November 8, 2018, and a Corrected Decision dated November 21, 2018, which
affirmed the August 15, 2018, claims administrator Order denying Mr. Carper’s application for
benefits. This appeal arises from the Board of Review’s Order dated August 16, 2019, in which
the Board of Review affirmed the November 8, 2018, and November 21, 2018, decisions 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.

Mr. Carper completed an Injured Worker Accident Statement on July 23, 2018, indicating
he was injured while working as an HVAC installer. He stated that he was using a saw while
cutting a wall on a ladder when he experienced numbness in his hands and arms, as well as chest
pains. He was treated by Faiga Muhmud, M.D., at Patient First-Lake Ridge for chest pain on July
24, 2018. The records indicate that he began experiencing left-sided chest pain the day prior after
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exertion. An EKG taken was within normal limits. A chest x-ray showed no acute infiltrate.
However, the x-ray showed a density over the upper thoracic spine on the lateral view caused by
a prominent lateral osteophyte. The diagnosis was chest pain, unspecified. Mr. Carper was referred
to the emergency room for cardiac enzymes. It was stated that he would need a cardiac stress test
before being cleared to return to work.

Daniel Akers, Ops Manager, completed an Accident Investigation Report for Supervisor
on July 25, 2018. Mr. Akers indicated that Mr. Carper was on a ladder using a Saws-All to cut a
hole in the wall when the incident occurred. Mr. Akers also indicated that it was not an unsafe act
and there were no unsafe conditions. Mr. Akers also stated that it was his belief that Mr. Carper’s
work was not a contributing cause to his condition.

A Workers’ Compensation First Report of Injury of Illness form was completed by Tiffany
Kapp, an administrator for the employer. She indicated that the employer was first notified of the
injury on July 23, 2018. The form also indicated that Ms. Kapp was contacted regarding the injury
affecting Mr. Carper’s chest. It listed the specific activity that Mr. Carper was engaged in at the
time of the injury as strain or injury by miscellaneous. The form indicated that the “Administrator”
was notified on August 1, 2018. A Narrative Note attached to the report stated:

“EE was cutting with saw on a ladder and his hands went numb and he
experience [sic] chest pain. Unknown if EE was performing regular job duties.
Unknown if safety protocols were followed. Unknown if safety equipment was
provided or used. Witness: Jason Tolbert, title number unknown. The injury
was reported immediately. Reported to: Daniel Akers.”

It was also noted that on July 20, 2018, “EE asked supervisor about AFLAC disability pay. The
witness statement and claimant statement are complete opposite stories. EE complained to his
supervisor that his heart hurt and felt weird – possibly health condition, not workplace injury.”

An Injured Worker Initial Treatment Note by Juan Salorzano, a co-worker, dated August
14, 2018, indicated that Mr. Carper was having chest pain upon activity. He reported that when he
walks his chest feels tight. An EKG and x-ray did not show anything. Mr. Carper was referred to
a specialist for evaluation. Mr. Salorzano stated that he discussed the file with the adjuster and
stated that his symptoms appear to be related to cardiac issues. It was in his opinion that Mr.
Carper’s cardiac issues were related to his activities performed at work.

The claims administrator issued an Order on August 15, 2018, rejecting Mr. Carper’s
application for benefits. The claims administrator stated that it had determined that Mr. Carper had
not sustained an injury in the course of and resulting from his employment. Mr. Carper protested
the Order. A Corrected Order was issued on October 5, 2018, rejecting the claim and stating that
the August 15, 2018, Order had been issued as a result of a mistake and/or clerical error. In the
Corrected Order, the claims administrator stated, “To date, Berkley Net has not received a WC-1
Employees’ and Physicians’ Report of Injury form as required by W. Va. Code § 23-4-1a and 23-
4-15. Thus, Berkley Net did not have jurisdiction or authority to issue the August 15, 2018, Order.”
The claims administrator issued another Corrected Order on October 10, 2018, rejecting the claim
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stating that the August 15, 2018, Order had been issued as the result of a mistake and/or clerical
error. Mr. Carper protested the decision.

On September 26, 2018, Mr. Carper completed the Employees’ and Physicians’ Report of
Occupational Injury or Disease, indicating that he injured the left side of his chest on July 23,
2018. On October 7, 2018, Dr. Muhmud completed the physician’s section of the Employees’
and Physicians’ Report of Occupational Injury. He listed chest pain on exertion as the diagnosis
and indicated that the condition is a direct result of an occupational injury. Dr. Muhmud also
indicated that the injury did not aggravate a prior injury or disease.

In an Affidavit dated October 12, 2018, Justin Tolbert, a co-worker, stated that on July 23,
2018, Mr. Carper was supposed to cut two holes in the wall for a return chute, but he left work
around 4:30 p.m. after cutting his first hole. Mr. Tolbert indicated that the next morning he
observed Mr. Carper leaning against a wall. Mr. Tolbert stated that Mr. Carper left the jobsite to
go to the hospital. Although Mr. Carper was supposed to stay at the hospital overnight, he did not
have the money to pay for it and left after his initial treatment. Mr. Tolbert advised that Mr. Carper
did not make any complaints or act out of the ordinary on the day of the incident.

Mr. Carper testified at an expedited hearing on October 12, 2018, that he had worked for
the employer as an HVAC installer for five years. He stated that at the time of the injury he was
using a Saws-All that jerks and vibrates and that the left side of his chest started hurting and his
arms became numb. Mr. Carper further testified that he had never been to a physician or emergency
room for cardiovascular complaints before this incident occurred.

The Office of Judges issued a decision dated November 8, 2018, affirming the claims
administrator’s August 15, 2018, Order, which denied the claim for an alleged occupational injury.
The Office of Judges concluded that Mr. Carper did not establish by a preponderance of the
evidence that he sustained an injury in the course of and resulting from his employment. The Office
of Judges reasoned that there is no evidence indicating that the work he was performing at the
onset of his chest pain was unusual or extraordinary. The Office of Judges concluded that the
record is insufficient to determine whether Mr. Carper’s chest pain is musculoskeletal, cardiac, or
the result of some other etiology. On August 16, 2019, the Board of Review adopted the findings
of fact and conclusions of law of the Office of Judges and affirmed the Office of Judges’ decision.

After review, we agree with the decision of the Office of Judges, as affirmed by the Board
of Review. The evidence of record demonstrates that Mr. Carper failed to prove by a
preponderance of the evidence that he sustained a work-related injury. Simply because he alleged
that he developed chest pain while at work does not mean that his chest pain is compensable. Mr.
Carper did not meet his burden of proving that he sustained a work-related injury in the course of
and resulting from his employment.

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.
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 Affirmed.

ISSUED: November 6, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

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