STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS FILED 

May 14, 2013
 

RORY L. PERRY II, CLERK
 

DARBY WES FRYE, SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 11-0933	 (BOR Appeal No. 2045352) 

(Claim No. 2010113639) 

NEIGHBORHOOD RESTAURANTS, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Darby Wes Frye, by John C. Blair, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. Neighborhood Restaurants, Inc., by 

Steven K. Wellman, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated May 20, 2011, in which 

the Board affirmed a November 30, 2010, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s November 19, 

2009, denial of Mr. Frye’s request to find the injury to his back, ankle, and tooth compensable. 

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. Frye was employed on November 7, 2009, as a cook at Wendy’s, owned and 

operated by Neighborhood Restaurant’s Inc., when, he alleges, that he fell while pushing racks of 

bread across the floor, injuring his back, ankle, and tooth. Mr. Frye’s application for benefits was 

denied by the claims administrator, leading to this appeal. 

West Virginia Code § 23-4-1(a) (2008) directs that Workers’ Compensation benefits are 

provided to employees “who have received personal injuries in the course of and resulting from 

their covered employment.” In its Order, which was affirmed by the Board of Review, the 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Workers’ Compensation Office of Judges found by a preponderance of the evidence that Mr. 

Frye’s injury did not occur in the course of and resulting from his employment with 

Neighborhood Restaurants, Inc. The Office of Judges found that Mr. Frye’s injuries were the 

result of a well documented history of chronic back pain pre-existing his employment. 

The Board of Review adopted the findings of the Office of Judges and affirmed its Order 

on May 20, 2011. It was not clearly wrong. 

We agree with the Office of Judges’ determination that Mr. Frye was not injured in the 

course of and resulting from his employment. Mr. Frye’s medical history, dating back to 2004, 

indicates that Mr. Frye had injured his back prior to his employment at Neighborhood 

Restaurant. The injuries Mr. Frye sustained are not compensable. 

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: May 14, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II