STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

April 2, 2014 

RORY L. PERRY II, CLERK 

MICHAEL GREENLEE, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 12-1099	 (BOR Appeal No. 2046992) 

(Claim No. 2011015887) 

SELAH CORPORATION, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Michael Greenlee, by Edwin H. Pancake, his attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Selah Corporation, by Matthew L. 

Williams, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated August 24, 2012, in 

which the Board affirmed a February 29, 2012, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s November 24, 

2010, decision denying Mr. Greenlee’s application for workers’ compensation benefits. 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 that the Board of Review’s decision is based upon a material 

misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited 

circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate 

for a memorandum decision rather than an opinion. 

Mr. Greenlee worked as a coal miner/scoop operator for Selah Corporation. He suffered 

an injury while hanging fly pads when he stepped into a hole and twisted his lower back on 

September 2, 2010. Joseph Marinacci, D.C., concluded that Mr. Greenlee had injured his back as 

a direct result of his occupational injury on September 2, 2010. The claims administrator rejected 

Mr. Greenlee’s application for workers’ compensation benefits and held that Mr. Greenlee was 

not injured in the course of and as a result of his employment. 

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The Office of Judges affirmed the claims administrator’s decision and held that the 

preponderance of the evidence finds that a compensable injury did not occur on September 2, 

2010. The Board of Review affirmed the Office of Judges’ Order. On appeal, Mr. Greenlee 

disagrees and asserts that despite the perceived inconsistencies he has proven by reliable 

evidence that he suffered a low back injury at work. Selah Corporation maintains that the 

evidence of record contains numerous contradictions and inconsistencies sufficient to support the 

conclusion that Mr. Greenlee’s complaints are related to pre-existing conditions and not a 

specific injury on September 2, 2010. 

The Board of Review was plainly wrong to affirm the Office of Judges’ Order denying 

Mr. Greenlee’s application for workers’ compensation benefits. Mr. Greenlee was injured on 

September 2, 2010. Mr. Greenlee first reported the injury to Selah Corporation on September 11, 

2010, when he called off work because of his back pain and further reported the injury to Mr. 

Robinette, the mine supervisor, on September 13, 2010. Mr. Greenlee sought medical treatment 

on September 13, 2010, from Dr. Marinacci who saw him for his back pain with an onset date of 

September 2, 2010, and diagnosed him with lumbar disc without myelopathy, lumbosacral 

strain/sprain, and thoracic subluxation. Dr. Marinacci completed the physician portion of the 

Employee’s and Physician’s Report of Injury on November 5, 2010, and stated that Mr. Greenlee 

injured his low back as a direct result of an occupational injury on September 2, 2010. We find 

that Mr. Greenlee has satisfied the three elements of West Virginia Code § 23-4-1 (2008) 

because he has a (1) personal injury (2) that he received in the course of employment and (3) 

resulting from employment, and therefore, we reverse the Board of Review and hold the claim 

compensable. 

For the foregoing reasons, we find that the decision of the Board of Review is clearly the 

result of erroneous conclusions of law or is based upon a material misstatement or 

mischaracterization of the evidentiary record. Therefore, the decision of the Board of Review is 

reversed. 

Reversed. 

ISSUED: April 2, 2014 

CONCURRED IN BY: 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

DISSENTING: 

Chief Justice Robin J. Davis 

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