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 STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

CARPENTER LOGGING, LLC, 

Employer Below, Petitioner

vs.) No. 19-0577 (BOR Appeal No. 2054032)

(Claim No. 2015022418)

 

KEITH W. TENNEY, 

Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Carpenter Logging, LLC, by Counsel Daniel G. Murdock, appeals the decision 

of the West Virginia Workers’ Compensation Board of Review (“Board of Review”). Keith W. 

Tenney, by Counsel J. Thomas Greene Jr., filed a timely response.

The issue on appeal is compensability. The claims administrator rejected the claim on 

October 27, 2017. The Workers’ Compensation Office of Judges (“Office of Judges”) reversed the 

decision in its February 4, 2019, Order and held the claim compensable for left arm amputation, 

acute osteomyelitis, electrical burns, rhabdomyolysis, transaminitis, and leukocytosis. The Order 

was affirmed by the Board of Review on May 21, 2019

The Court has carefully reviewed the records, written arguments, and appendices contained 

in the briefs, and the case is mature for consideration. 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. 

On December 16, 2014, Mr. Tenney was operating a bulldozer when he struck a high 

voltage wire and fell down an embankment. He was flown to the Trauma Department of the 

University of Pittsburgh where it was determined that he had burns over more than 30% of his 

body. His left arm had to be amputated. He was diagnosed with left arm amputation, acute 

osteomyelitis, electrical burns, rhabdomyolysis, transaminitis, and leukocytosis. A First Report of 

Injury or Illness form was completed on February 13, 2015, indicating Mr. Tenney was a full-time 

employee of Carpenter Logging, LLC, who was operating a bulldozer when it struck electrical 

wires and fell down an embankment. 

FILED

December 11, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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Shawn Carpenter testified in a deposition on May 9, 2016, that he owns Carpenter Logging, 

LLC. He stated that Mr. Tenney was an independent contractor, not an employee. Mr. Tenney had 

owned several businesses and worked as an independent contractor for Carpenter Logging multiple 

times in the past. Mr. Carpenter stated that Mr. Tenney provided all of his own equipment. Mr. 

Carpenter testified that he provides the equipment for his employees. Mr. Tenney also set his own 

hours. Mr. Carpenter asserted that he made a verbal agreement with Mr. Tenney and his brother 

for tree cutting and trimming and were paid by the hour. On the day of Mr. Tenney’s injury, Mr. 

Carpenter was not on the job site and did not know Mr. Tenney was there. However, Mr. Carpenter 

stated that Red Riley, who worked for him, was on the jobsite that day.

On January 27, 2017, Mr. Tenney testified in a deposition that he was an employee of 

Carpenter Logging, LLC, on the day of his injury. He admitted that he had worked for Mr. 

Carpenter in the past as an independent contractor. He stated that he had not worked for him in 

that capacity for about six months prior to his injury and that he and his brother agreed to work for 

Carpenter Logging for $15 an hour. Mr. Tenney testified that he is not a certified logger, so Mr. 

Riley was on site because he was certified. Mr. Riley told Mr. Tenney where to retrieve and place 

logs and when to start working. Mr. Riley also drove Mr. Tenney to the worksite the day of the 

injury. Mr. Tenney further testified that he brought no tools to the work site and instead, used 

Carpenter Logging’s bulldozer and equipment. 

The claims administrator initially rejected the claim on February 19, 2015. On April 11, 

2017, the Office of Judges reversed the decision and ordered the claims administrator to recognize 

Mr. Tenney as an employee of Carpenter Logging, LLC, and remanded the claim with instructions 

to determine if Mr. Tenney was injured in the course of and resulting from his employment. The 

decision was affirmed by the Board of Review and the West Virginia Supreme Court of Appeals. 

See Carpenter Logging, LLC v. Tenney, No. 17-0964, 2018 WL 1410742 (W.Va. Mar. 21, 2018) 

(memorandum decision).

While the case was pending before this Court, the claims administrator issued a second 

decision rejecting the claim on October 27, 2017. It is this Order that is now on appeal. On May 

4, 2018, Mr. Tenney filed a Motion for Late Protest to the claims administrator’s October 27, 2017,

decision. Mr. Tenney’s counsel explained that his office did not receive a copy of the Order. The 

Office of Judges granted late filing of the protest on May 30, 2018, and the employer did not appeal 

the Order. 

On August 20, 2018, the Office of Judges ordered the claims administrator to hold the 

claim compensable for left arm amputation, acute osteomyelitis, electrical burns, rhabdomyolysis, 

transaminitis, and leukocytosis. The Office of Judges determined that Mr. Tenney was authorized 

to use the employer’s bulldozer when he was injured. It also found that the employer waived its 

objection to Mr. Tenney’s late protest. 

The Office of Judges denied the employer’s Motion for Reconsideration on October 30, 

2018. On December 13, 2018, the Office of Judges granted a motion from the employer for 

reconsideration of the claim and vacated the August 20, 2018, Office of Judges’ Order. The Office 
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of Judges reconsidered the claim and on February 4, 2019, it reversed the October 27, 2017, claims 

administrator’s decision and held the claim compensable for left arm amputation, acute 

osteomyelitis, electrical burns, rhabdomyolysis, transaminitis, and leukocytosis. 

The Office of Judges noted that the employer made two arguments. First, it asserted that 

on the day of his injury, Mr. Tenney “commandeered the bulldozer” and was not actually 

authorized to use the machine. The Office of Judges found that the employer relied on the 

testimony of Mr. Carpenter. However, Mr. Carpenter never stated that Mr. Tenney was 

unauthorized to use the bulldozer. Therefore, the Office of Judges concluded that the employer 

failed to support its assertion that Mr. Tenney was acting outside of the scope of his employment 

when he was injured.

Second, the employer argued that the Office of Judges did not have jurisdiction to grant 

Mr. Tenney’s Motion for Late Protest because the protest was not filed within 120 days of the 

claims administrator’s decision as required by West Virginia Code §§ 23-5-1(b)(1) and 23-5-6. 

The Office of Judges found that the employer’s argument had no merit because the employer did 

not protest the Motion for Late Protest or file an appeal of the Order granting the motion. The 

Office of Judges concluded that Mr. Tenney showed good cause for his late protest. The Office of 

Judges also found that the evidence indicates he sustained a left arm amputation, acute 

osteomyelitis, electrical burns, rhabdomyolysis, transaminitis, and leukocytosis as a result of his 

compensable injury. The Board of Review adopted the findings of fact and conclusions of law of 

the Office of Judges and affirmed its Order on May 21, 2019. It noted that the Office of Judges 

had subject matter jurisdiction since the claim was timely filed.

After review, we agree with the reasoning and conclusions of the Office of Judges as 

affirmed by the Board of Review. A preponderance of the evidence indicates that Mr. Tenney was 

an employee of Carpenter Logging, LLC, at the time of his injury. Despite the employer’s 

argument, the evidence also indicates that Mr. Tenney’s use of the bulldozer was authorized. 

Regarding the employer’s argument that the Office of Judges lacked jurisdiction to grant a Motion 

for Late Protest, we agree with the Board of Review. The Office of Judges found good cause and 

granted Mr. Tenney’s request to file a late protest. The employer failed to appeal the decision. 

Thus, the decision became final. The employer cannot now attempt to relitigate an issue that has 

already been decided. 

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 so clearly wrong based upon the evidentiary record that even when all 

inferences are resolved in favor of the Board of Review’s findings, reasoning and conclusions, 

there is insufficient support to sustain the decision. Therefore, the decision of the Board of Review 

is affirmed. 

 Affirmed.
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ISSUED: December 11, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker 

Justice Evan H. Jenkins

Justice John A. Hutchison