STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
CODY MURPHY,
FILED
Claimant Below, Petitioner December 11, 2020
EDYTHE NASH GAISER, CLERK
vs.) No. 19-0801 (BOR Appeal No. 2054133) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
(Claim No. 2019011603)
SURGE STAFFING, LLC,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Cody Murphy, by Counsel Robert L. Stultz, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). Surge Staffing, LLC, by
Counsel Evan J. Jenkins, filed a timely response.
The issue on appeal is compensability of the claim. On December 3, 2018, the claims
administrator rejected the claim. The Workers’ Compensation Office of Judges (“Office of
Judges”) affirmed the claims administrator’s rejection of the claim on March 28, 2019. This appeal
arises from the Board of Review’s Order dated August 19, 2019, in which the Board of Review
affirmed the decision 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.
On November 12, 2018, Mr. Murphy presented to W. Z. Johnson, D.C., of Johnson
Chiropractic Clinic, with complaints of neck pain and radiculopathy in the cervicothoracic spine,
as well as mid back pain. Electrical stimulation was administered, and an off-work slip was
provided with restrictions of light duty and lifting restrictions. On November 20, 2018, Mr.
Murphy presented to MedExpress and reported hearing a “pop” while hanging a door at work. He
complained of stinging and burning within the right shoulder. A diagnosis was offered of a sprain
of the right shoulder, and an MRI was ordered. Mr. Murphy was placed on light duty and instructed
to follow up within one week.
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On December 3, 2018, the claims administrator issued an Order rejecting Mr. Murphy’s
claim. The Order stated that an investigation concluded the November 20, 2018, incident does not
meet the compensability criteria required by the State of West Virginia. Per West Virginia Code §
23-4-1b, the compensable injury must occur in the course of and resulting from employment, and
the investigation concluded the injury is pre-existing and unrelated to employment. Mr. Murphy
protested the claims administrator’s Order.
An MRI was performed on December 12, 2018, at WVU Medicine. The MRI revealed
focal thickening and altered signal within the rotator cuff, consistent with tendinosis/tendinopathy
and suspected partial-thickness undersurface tear involving the supraspinatus, extending into the
margin with the infraspinatus near the musculotendinous junction. There was no evidence of focal
full thickness tear or complete rotator cuff tear.
Mr. Murphy treated with Cecilia Harrington, M.D., on December 12, 2018. Mr. Murphy
reported that he received a right shoulder injury while lifting up materials at work on November
20, 2018. Dr. Harrington reviewed the MRI and offered a diagnosis of partial tear of the right
rotator cuff with acute right-shoulder pain. Mr. Murphy was to continue performing light duty and
commence physical therapy.
Mr. Murphy followed-up with Dr. Johnson on December 14, 2018. Dr. Johnson reported
that he treated Mr. Murphy on November 12, 2018, for neck pain with radicular symptoms into
the right shoulder blade and mid-back pain that had bothered him for two days while working on
firewood. He adjusted his cervical and thoracic spine, and Mr. Murphy was asked to miss work
for a full recovery. Mr. Murphy returned to Dr. Johnson on November 20, 2018, with a new injury
which was to his right shoulder as a result of lifting heavy windows and doors. Dr. Johnson stated
that this injury was not present during the November 12, 2018, visit. At that visit, he had
unrestricted use of his right arm. On November 20, 2018, Mr. Murphy’s right shoulder revealed
significant painful movements with muscle weakness and swelling. Dr. Johnson strongly
suspected rotator cuff involvement, bicep tendon or right shoulder labrum. Upon reviewing the
MRI, Dr. Johnson believed that it did show a right rotator cuff tear.
On February 15, 2019, Mr. Murphy testified by way of deposition that on November 20,
2018, he was lifting a wooden door, along with a co-worker, Mike Deggendorf, when he felt a
pop, stinging, and burning sensation in his right shoulder. At that time, Mr. Deggendorf informed
Ms. Poling, his supervisor, of the alleged injury. He stated that he was instructed to present to Dr.
Johnson. However, because Dr. Johnson was not available, he went to MedExpress, where a sling
was provided, an x-ray was ordered, and an MRI was recommended. He testified that he was
referred to Dr. Harriot, where a cortisone shot was administered to his right shoulder. Mr. Murphy
testified that he was still unable to raise his arm very high.
On February 22, 2019, an affidavit was submitted from Christine Poling. Ms. Poling, a
supervisor in the paint room of the plant, stated that she directly supervised Mr. Murphy. She
explained that employees work in two-man teams and that Mr. Murphy worked almost exclusively
with Mike Deggendorf. Ms. Poling stated that Mr. Murphy was placed on unpaid leave the week
of November 12, 2018. It was her understanding that he had injured his right shoulder while
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chopping firewood and had previously injured the shoulder while playing football. She completed
an Employee Absence Documentation Form on November 13, 2018, reflecting Mr. Murphy’s
status. Ms. Poling indicated that no light duty was available because as per company policy light
duty is only provided for work-related injuries. She further indicated that Mr. Murphy returned to
full duty work on November 19, 2018. He had taken off work the prior week because he had
injured his shoulder while chopping firewood. Ms. Poling stated that on the morning of November
20, 2018, she noticed that Mr. Murphy was rubbing his shoulder. She advised him to get it checked
out. Mr. Murphy punched out to see his chiropractor. Ms. Poling stated that Mr. Murphy did not
indicate that he had injured his shoulder at work. It was not until later that she learned that he was
claiming his injury as a work-related injury. She initiated an investigation and completed a Job
Site Supervisor’s Report. She asked Mr. Deggendorf if Mr. Murphy told him that he injured his
right shoulder at work, and Mr. Deggendorf advised her that he had not.
On February 22, 2019, an affidavit was submitted from Michael Francis, a co-worker
employed in the paint room. Mr. Francis stated that on November 20, 2018, Ms. Poling asked
whether he was aware of work injuries that Mr. Murphy may have sustained. He said that he was
not aware of any. Instead, Mr. Francis indicated that he had a conversation with Mr. Murphy, and
he stated that he had injured his shoulder while chopping firewood over the weekend. Mr. Francis
completed a Witness Statement on November 20, 2018.
In an affidavit dated February 22, 2019, Allison Hall stated that she is a co-worker of Mr.
Murphy employed in the paint room. On November 20, 2018, Ms. Poling asked her whether she
was aware of any work injuries that Mr. Murphy may have sustained. She recalled a conversation
with Mr. Murphy on November 20, 2018, when he stated that he was off work for a week due to
the fact that he tore his shoulder. At no point did he indicate that he actually injured his shoulder
at work. Ms. Hall completed a Witness Statement on November 21, 2018.
A sworn affidavit of Mike Deggendorf, a laborer and colleague of Mr. Murphy was
submitted on February 22, 2019. Mr. Deggendorf stated that Mr. Murphy was typically his paint-
room partner and assisted in inspecting doors. On November 12, 2018, Mr. Deggendorf received
a Facebook message from Mr. Murphy at 5:23 a.m., which stated that he would not be at work that
day. That afternoon, at 2:00 p.m., Mr. Deggendorf sent a message, inquiring how Mr. Murphy
threw his back out. Mr. Murphy replied, “Fire wood [sic]. I retore [sic] my rotator cuff.” He was
unaware of Mr. Murphy’s alleged work-related right shoulder injury until he left his shift on
November 20, 2018. Mr. Deggendorf denied hearing any pop at the time of the alleged injury. He
stated that at no point did Mr. Murphy express to him the occurrence of any work-related shoulder
injury.
Lori Cottrill, a Human Resources Workforce Manager with the Employer, testified in an
Affidavit dated February 22, 2019, that she was contacted by Mr. Murphy on November 20, 2018,
because his chiropractor had ordered an x-ray of his right shoulder. He suggested that he had
injured his right shoulder at work that day. Ms. Cottrill met with Mr. Murphy later that afternoon,
along with his parents. She completed an Incident Report. Mr. Murphy was offered modified duty.
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An affidavit of Kim Stull dated February 22, 2019, stated that she is a Human Resource
Workforce Manager, who works at the on-site facility where Mr. Murphy works as a laborer in the
paint room. Ms. Stull stated that he did not present to work on Monday, November 12, 2018, which
was eight days prior to his alleged injury. She stated that Mr. Murphy brought a note from Johnson
Chiropractic Clinic dated November 12, 2018. He advised her that he had injured his back and
shoulder while cutting firewood over the weekend and that he believed he had re-injured his rotator
cuff that he originally injured while playing football.
On March 28, 2019, the Office of Judges affirmed the December 3, 2018, Order of the
claims administrator. The Office of Judges concluded that the preponderance of the evidence
establishes that Mr. Murphy did not suffer an injury in the course of and as a result of his
employment on November 20, 2018. The Office of Judges reasoned that the affidavits in the record
from the employer contradict Mr. Murphy’s testimony that he injured his shoulder on November
20, 2018. The Office of Judges concluded that the affidavits support a finding that it is more likely
than not that Mr. Murphy suffered a non-work-related injury. On August 19, 2019, the Board of
Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed
the rejection of the claim.
After review, we agree with the conclusions of the Office of Judges, as affirmed by the
Board of Review. The evidence suggests that Mr. Murphy’s injury did not occur in the course of
his employment. Based upon the credible statements of Ms. Poling, Ms. Stull, Ms. Cottrill, Ms.
Hall, Mr. Francis, and Mr. Deggendorf, the preponderance of evidence fails to demonstrate that
Mr. Murphy suffered a compensable injury to his right shoulder while working for the employer
on November 20, 2018.
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.
Affirmed.
ISSUED: December 11, 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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