Williby v. West Virginia Office Ins. Com'R, 34455.

• Decision Date: 02 November 2009
• Docket Number: No. 34455.,34455.
• Citation: 686 S.E.2d 9
• Parties: Jean S. WILLIBY, Appellant v. WEST VIRGINIA OFFICE INSURANCE COMMISSIONER and First Century Bank, Appellees.
• Court: West Virginia Supreme Court

686 S.E.2d 9

Jean S. WILLIBY, Appellant v. WEST VIRGINIA OFFICE INSURANCE COMMISSIONER and First Century Bank, Appellees.

No. 34455.

Supreme Court of Appeals of West Virginia.

Submitted: October 6, 2009.

Decided: November 2, 2009.

Syllabus by the Court

1. "In order for a claim to be held compensable under the Workmen's Compensation Act, three elements must coexist: (1) a personal injury (2) received in the course of employment and (3) resulting from that employment." Syllabus Point 1, Barnett v State Workmen's Compensation Commissioner, 153 W.Va. 796, 172 S.E.2d 698 (1970).

2. "An injury incurred by a workman, in the course of his travel to his place of work and not on the premises of the employer, does not give right to participation in such [Workers' Compensation] fund, unless the place of injury was brought within the scope of employment by an express or implied requirement in the contract of employment, of its use by the servant in going to and returning from his work.' Syllabus Point 2, De Constantin v. Public Service Commission, 75 W.Va. 32, 83 S.E. 88 (1914)." Syllabus Point 4, Brown v. City of Wheeling, 212 W.Va. 121, 569 S.E.2d 197 (2002).

3. "An employee is entitled to compensation for an injury sustained in going to or coming from his work, only where such injury occurs within the zone of his employment, and that zone must be determined by the circumstances of the particular case presented." Syllabus Point 1, Carper v. Workmen's Compensation Comm'r, 121 W.Va. 1, 1 S.E.2d 165 (1939).

Gregory S. Prudich, Esq., Sanders, Austin, Flanigan & Flanigan, Princeton, WV, for Appellant.

Darrell V. McGraw, Jr., Esq., Attorney General, David L. Stuart, Esq., Senior Deputy Attorney General, Charleston, WV, for Appellee.

PER CURIAM:

This case is before this Court upon appeal of a final order of the Workers' Compensation Board of Review (hereinafter, the "BOR")¹ entered January 17, 2007. In that order, the BOR reversed the decisions of the Office of Judges (hereinafter, the "OOJ") and the Workers' Compensation Commission (hereinafter, the "Commission")² which found the claim of the appellant, Jenny S. Williby, to be compensable. The appellant was injured in a fall that occurred while she was crossing the street to return to her place of employment after picking up her lunch during a work break. The BOR concluded that the appellant's injury did not occur in the course of and as a result of her employment. In this appeal, the appellant contends that the BOR erred by reversing the decisions of the OOJ and the Commission, and maintains that her claim should have been held compensable. Based upon the parties' briefs and arguments in this proceeding, as well as the relevant statutory and case law, this Court finds that the BOR did not commit reversible error and accordingly, affirms the decision below.

I. FACTS

The appellant is a loan clerk at First Century Bank (hereinafter, the "bank" or the "employer") located in Bluefield, West Virginia. She is a salaried employee at the bank and works thirty-nine-and-one-half hours per week. Employees of the bank are required to record their time by punching a time clock. The appellant receives two fifteen-minute paid breaks per day, during which she is not required to punch out on the time clock. She also has an unpaid thirty-minute lunch period from 12:30 p.m. until 1:00 p.m. and is required to punch out on the time clock during that time.

On September 3, 2004, at 11:50 a.m., the appellant was injured during her first fifteen minute break of the day. It was a holiday weekend, and the appellant maintains that the bank was understaffed, causing her to be late in taking her break. When she did take her break, she used it to go across the street to the Manor Market to pick up her lunch. As the appellant was crossing the street to return to the bank, she fell in the middle of the road on uneven pavement and injured her shoulder. She then returned to the bank and was taken to Bluefield Regional Medical Center, which determined that she had sustained a right shoulder fracture, facial abrasions, and cephalgia (a headache).

The appellant's initial treatment plan was to use a shoulder immobilizer. She was then released from the hospital and instructed to follow-up with Dr. Stephen O'Saile. Thereafter, Dr. O'Saile had the appellant evaluated by MRI³ to determine if she had a rotator cuff tear. A November 9, 2004, MRI revealed a supraspinatus tear at the insertion point with the intact biceps tendon. On November 17, 2004, Dr. O'Saile performed a rotator cuff surgery on the appellant. The appellant has since recovered, with some limitations, and has returned to work.

The appellant filed a workers' compensation claim which was ruled compensable by the Commission on November 11, 2004, for "Fracture Upper Humerus Ot." On November, 18, 2004, following a diagnosis update filed on November 17, 2004, by Dr. O'Saile, the appellant's claim was ruled compensable for "Fracture Upper Humerus Ot" and "Nontraumacomplete Rupt Ro." On December 1, 2004, the bank, by counsel, filed a protest to the November 11, 2004, and November 18, 2004, award/orders of the Commission. On October 19, 2005, the OOJ affirmed the November 11, 2004, finding by the Commission that held the appellant's claim compensable. On January 17, 2007, the BOR reversed and vacated the OOJ's decision, thereby rejecting the appellant's claim. The BOR concluded that the appellant's injury did not occur in the course of and as a result of her employment.

On February 15, 2007, the appellant petitioned this Court for appeal from the final order of the BOR. The appellant argues that her injury occurred in the course of and as a result of her employment, while the appellee, the Office of Insurance Commission, disagrees. The appellee does not question that the appellant sustained the injury on that day, however, it does maintain that the injury did not occur as a result of and in the course of her employment. On October 30, 2008, we granted the appellant's petition for appeal.

II. STANDARD OF REVIEW

This case comes before this Court as an appeal from an order of the BOR, which reversed the decisions by the OOJ and the Commission. When this Court grants an appeal from the BOR, our review of the Board's final order is guided by W.Va.Code § 23-5-15 (2003)⁴, which directs that,

(b) [i]n reviewing a decision of the board of review, the supreme court of appeals shall consider the record provided by the board and give deference to the board's findings, reasoning and conclusions[.]

. . . .

(d) If the decision of the board effectively represents a reversal of a prior ruling of either the commission or the office of judges that was entered on the same issue in the same claim, the decision of the board may be reversed or modified by the supreme court of appeals only if the decision is in clear violation of constitutional or statutory provisions, is clearly the result of erroneous conclusions of law, or is so clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor of the board's findings, reasoning and conclusions, there is insufficient support to sustain the decision. The court may not conduct a de novo re-weighing of the evidentiary record. If the court reverses or modifies a decision of the board pursuant to this subsection, it shall state with specificity the basis for the reversal or modification and the manner in which the decision of the board clearly violated constitutional or statutory provisions, resulted from erroneous conclusions of law, or was so clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor of the board's findings, reasoning and conclusions, there is insufficient support to sustain the decision.

In Lovas v. Consolidation Coal Company, 222 W.Va. 91, 95, 662 S.E.2d 645, 649 (2008), this Court stated:

In Barnett v. State Workmen's Compensation Commissioner, 153 W.Va. 796, 172 S.E.2d 698 (1970), this Court explained that "[w]hile the findings of fact of the [BOR] are conclusive unless they are manifestly against the weight of the evidence, the legal conclusions of the [BOR], based upon such findings, are subject to review by the courts." 153 W.Va. at 812, 172 S.E.2d at 707 (quoting Emmel v. State Compen. Dir., 150 W.Va. 277, 284, 145 S.E.2d 29, 34 (1965)). Conclusions of law are subjected to de novo inspection. Syl. Pt. 3, Adkins v. Gatson, 192 W.Va. 561, 453 S.E.2d 395 (1994). "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). In syllabus point one of Appalachian Power Company v. State Tax Department, 195 W.Va. 573, 466 S.E.2d 424 (1995), this Court also explained that "[i]nterpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review."

Additionally, in Fenton Art Glass Co. v. West Virginia Office of Ins. Com'r, 222 W.Va. 420, 427, 664 S.E.2d 761, 768 (2008), this Court stated:

Because our consideration of the issues before us necessarily requires us to consider the standard of review of the BOR, we observe that "[w]hen the [BOR] reviews a ruling from the [OOJ,] it must do so under the standard of review set out in W.Va. Code § 23-5-12(b) (1995), and failure to do so will be reversible error." Syl. Pt. 6, Conley v. Workers' Compensation Div., 199 W.Va. 196, 483 S.E.2d 542 (1997).

West Virginia Code § 23-5-12(b) (1995), directs, in relevant part, that:

The [BOR] may affirm the order or decision of the [OOJ] or remand the case for further proceedings. It shall reverse, vacate or modify the order or decision of the [OOJ] if the substantial rights of the petitioner or petitioners have been prejudiced because the [OOJ]'s findings are:

(1) In violation of statutory provisions; or

(2) In...