Ziegler v. Davis Kitchen & Tile, LLC

• Docket Number: 24-232
• Decision Date: 14 January 2025
• Parties: Gary L. Ziegler, Claimant Below, Petitioner v. Davis Kitchen & Tile, LLC, Employer Below, Respondent
• Court: West Virginia Supreme Court

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Gary L. Ziegler, Claimant Below, Petitioner v. Davis Kitchen & Tile, LLC, Employer Below, Respondent

No. 24-232

Supreme Court of Appeals of West Virginia

January 14, 2025

(JCN 2022024379)(ICANo. 23-ICA-440)

MEMORANDUM DECISION

PetitionerGary L. Ziegler appeals the February 27, 2024, memorandum decision of the Intermediate Court of Appeals of West Virginia("ICA").SeeZiegler v. Davis Kitchen & Tile, LLC, No. 23-ICA-440, 2024 WL 1592609(W.Va Ct. App.Feb. 27, 2024)(memorandum decision).RespondentDavis Kitchen & Tile, LLC filed a timely response.^[1] The issue on appeal is whether the ICA erred in affirming the September 7, 2023, decision of the West Virginia Workers' Compensation Board of Review which rejected the claim.

The claimant contends that he sustained an injury to his right wrist as a result of repetitive twisting motions associated with troweling, tiling, and the installation of kitchen and bathroom cabinetry, while working as a tile and cabinet installer.Because the claimant believes that the medical record supports the view that his injuries were a result of an occupational disease, he argues that the holding in Moore v. ICG Tygart Valley, LLC, 247 W.Va. 292, 879 S.E.2d 779(2022)^[2] provides that his condition should be presumed to be the result of his employment.The

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employer counters by arguing that the evidence simply does not support a finding that the claimant's condition is occupational in nature, and the petition for appeal should be refused.

This Court reviews questions of law de novo, while we accord deference to the Board of Review's findings of fact unless the findings are clearly wrong.Syl. Pt. 3, Duff v. Kanawha Cnty. Comm'n, 250 W.Va. 510, 905 S.E.2d 528(2024).Upon consideration of the record and briefs, we find no reversible error and therefore summarily affirm.SeeW.Va. R. App. P. 21(c).

Affirmed.

CONCURRED IN BY: Chief Justice William R. Wooton Justice Elizabeth D.

Walker Justice Tim Armstead Justice C. Haley Bunn Justice Charles S. Trump IV

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^[1]The petitioner is represented by counselJ. Thomas Greene Jr. and T. Colin Greene, and the respondent is represented by counselSteven K. Wellman and James W. Heslep.

^[2] In Moore, this Court considered the effect of preexisting conditions upon the compensability of a workers compensation claim and held that:

A claimant's disability will be presumed to have resulted from the compensable injury if: (1) before the injury, the claimant's preexisting disease or condition was

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