STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
May 14, 2013
RORY L. PERRY II, CLERK
DARBY WES FRYE, SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 11-0933 (BOR Appeal No. 2045352)
(Claim No. 2010113639)
NEIGHBORHOOD RESTAURANTS, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Darby Wes Frye, by John C. Blair, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Neighborhood Restaurants, Inc., by
Steven K. Wellman, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated May 20, 2011, in which
the Board affirmed a November 30, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s November 19,
2009, denial of Mr. Frye’s request to find the injury to his back, ankle, and tooth compensable.
The Court has carefully reviewed the records, written arguments, and appendices contained in
the briefs, and the case is mature for consideration.
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. Frye was employed on November 7, 2009, as a cook at Wendy’s, owned and
operated by Neighborhood Restaurant’s Inc., when, he alleges, that he fell while pushing racks of
bread across the floor, injuring his back, ankle, and tooth. Mr. Frye’s application for benefits was
denied by the claims administrator, leading to this appeal.
West Virginia Code § 23-4-1(a) (2008) directs that Workers’ Compensation benefits are
provided to employees “who have received personal injuries in the course of and resulting from
their covered employment.” In its Order, which was affirmed by the Board of Review, the
Workers’ Compensation Office of Judges found by a preponderance of the evidence that Mr.
Frye’s injury did not occur in the course of and resulting from his employment with
Neighborhood Restaurants, Inc. The Office of Judges found that Mr. Frye’s injuries were the
result of a well documented history of chronic back pain pre-existing his employment.
The Board of Review adopted the findings of the Office of Judges and affirmed its Order
on May 20, 2011. It was not clearly wrong.
We agree with the Office of Judges’ determination that Mr. Frye was not injured in the
course of and resulting from his employment. Mr. Frye’s medical history, dating back to 2004,
indicates that Mr. Frye had injured his back prior to his employment at Neighborhood
Restaurant. The injuries Mr. Frye sustained are not compensable.
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: May 14, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II