STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

October 7, 2015 

RORY L. PERRY II, CLERK 

WHEELING PARK COMMISSION, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Employer Below, Petitioner 

vs.) No. 14-0151 (BOR Appeal No. 2048706) 

(Claim No. 2013016351) 

THOMAS GURNEY, 

Claimant Below, Respondent 

MEMORANDUM DECISION 

Petitioner Wheeling Park Commission, by Edward M. George III, 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 January 27, 2014, in 

which the Board affirmed an August 16, 2013, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges reversed the claims administrator’s February 11, 2013, 

decision to reject the claim and found the claim compensable for contusion of the right side of 

the ribs and ninth right rib fracture. 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. Gurney, a greenskeeper for Wheeling Park Commission, was injured on December 

14, 2012, when he was operating a wood chipper. According to Mr. Gurney, he pushed a log into 

the chipper, it was ejected out the opposite way, and it hit him on the right side in his rib area. No 

one directly witnessed the log hit Mr. Gurney. However, Charles Miller and Justin Eckman, two 

fellow employees testified that they witnessed Mr. Gurney after the injury lying a few feet from 

the chipper in noticeable pain. Mr. Gurney was taken to Wheeling Hospital where he was 

diagnosed with a contusion of the right rib area. An x-ray taken on December 26, 2012, revealed 

a fracture of the right ninth rib. Mr. Gurney filed for workers’ compensation benefits based upon 

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his injury. On February 8, 2013, at Wheeling Park Commission’s request, Paul Steinman Jr, 

D.O., performed a record review. Dr. Steinman noted that the medical records from December 

14, 2012, did not document any evidence of trauma to Mr. Gurney’s chest. He further noted that 

medical records dated December 17, 2012; December 18, 2012; December 28, 2012; January 4, 

2013; and January 14, 2013, documented no objective evidence of trauma to Mr. Gurney’s chest. 

Dr. Steinman opined that there was no evidence of trauma to the skin that would support a claim 

that Mr. Gurney was struck on the right side of the chest with sufficient force to cause a rib 

fracture or any other injury. Based upon Dr. Steinman’s report the claims administrator rejected 

Mr. Gurney’s claim on February 11, 2013. Mr. Gurney protested. 

The Office of Judges found that Mr. Gurney was injured in the course of and as a result 

of his employment. The Office of Judges noted that the testimony of Mr. Gurney’s fellow 

employees, Charles Miller and Justin Eckman demonstrated that Mr. Gurney was seen after the 

injury lying on the ground and in pain, which was consistent with Mr. Gurney’s recitation of the 

events in question. The Office of Judges did not find Dr. Steinman’s report to be persuasive. The 

Office of Judges noted that contrary to what Dr. Steinman asserted, Wheeling Hospital 

diagnosed Mr. Gurney with a rib contusion. The Office of Judges further noted that an x-ray 

taken two weeks later revealed that Mr. Gurney sustained a right rib fracture, which also did not 

correspond to Dr. Steinman’s opinion. As a result, the Office of Judges rejected Dr. Steinman’s 

opinion. The Office of Judges reversed the claims administrator’s decision and found the claim 

to be compensable for a right rib fracture and contusion. The Board of Review adopted the 

findings of the Office of Judges and affirmed its Order. 

We agree with the findings of the Office of Judges and conclusions of the Board of 

Review. The mechanism of injury, the testimony of witnesses, and the medical records all 

demonstrate that Mr. Gurney was injured in the course of and as a result of his employment. 

Both Mr. Miller and Mr. Eckman testified that Mr. Gurney was on the ground in pain, feet away 

from the wood chipper, on the date of the injury. Mr. Gurney was diagnosed with a rib contusion 

at Wheeling Hospital. Two weeks later Mr. Gurney underwent an x-ray, which revealed a 

fractured rib. The only evidence that tends to weigh in the favor of non-compensability is the 

report of Dr. Steinman. Dr. Steinman’s conclusion that there was no evidence of a chest injury 

on December 14, 2012, is contrary to the medical record. Dr. Steinman also concluded that there 

was not sufficient skin trauma to cause a broken rib. However, it would have been difficult for 

Dr. Steinman to make such a conclusion because he did not examine Mr. Gurney personally at 

any time. Because Dr. Steinman did not have as much objective evidence as the doctors at 

Wheeling Hospital who treated Mr. Gurney’s injury, it was not in error for the Office of Judges 

and Board of Review to disregard his report. 

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. 

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Affirmed. 

ISSUED: October 7, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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