STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

CCBCC, INC., September 10, 2013 

RORY L. PERRY II, CLERK Employer Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 11-1688	 (BOR Appeal No. 2046051) 

(Claim No. 2011005794) 

ROY BURGESS,
 

Claimant Below, Respondent
 

MEMORANDUM DECISION 

Petitioner CCBCC, Inc., by H. Toney Stroud, its attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. 

This appeal arises from the Board of Review’s Final Order dated November 14, 2011, in 

which the Board affirmed a May 31, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges reversed the claims administrator’s August 25, 2010, 

decision rejecting Mr. Burgess’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 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. Burgess alleged he suffered an injury to his right knee while stepping up on a curb at 

Kroger. At the time of the alleged injury, Mr. Burgess was working as a merchandiser for 

CCBCC, Inc. The Office of Judges reversed the claims administrator’s decision and held the 

claim compensable for right knee effusion and right knee sprain. On appeal, CCBCC, Inc. 

disagrees and asserts that Mr. Burgess was injured while stepping up onto the curb, which is not 

a particular danger to which his work exposed him, and therefore, is not a result of his 

employment. 

The preponderance of the evidence demonstrates that Mr. Burgess did suffer an isolated 

fortuitous event on August 16, 2010, and sustained an injury on that date. The Charleston Area 

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Medical Center’s report from August 16, 2010, the day of the injury, along with Mr. Burgess’s 

statement that he injured his right knee when he stepped up on a curb at Kroger while entering 

the store to service it for CCBCC, Inc., supports the fact that he sustained a work-related right 

knee injury. Further, Paul Haymaker, a Kroger employee, stated in an affidavit that Mr. Burgess 

was seen limping at Kroger while there to service the store. The Board of Review reached the 

same reasoned conclusions in its decision of November 14, 2011. We agree with the reasoning 

and conclusions of the Board of Review. 

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: September 10, 2013 

CONCURRED IN BY: 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

DISSENTING: 

Chief Justice Brent D. Benjamin 

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