STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

April 6, 2015 

RORY L. PERRY II, CLERK 

MIRIAM HARBERT, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 13-1289 (BOR Appeal No. 2048453) 

(Claim No. 2013005132) 

KROGER LIMITED PARTNERSHIP I, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Miriam Harbert, by Patrick K. Maroney, his attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Kroger Limited Partnership, by 

Sean Harter, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated November 21, 2013, in 

which the Board affirmed a May 15, 2013, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 21, 2012, 

decision to deny the claim. 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. 

Ms. Harbert, an employee of Kroger Limited Partnership I, allegedly injured herself on 

August 8, 2012, when she tripped over a protruding drain plug in the floor. Ms. Harbert was then 

taken to Thomas Memorial Hospital where she was diagnosed with moderate degenerative 

changes with sclerosis, osteophytosis and joint space narrowing. There was no evidence of acute 

fracture, traumatic subluxation, or dislocation. Ms. Harbert filed an application for workers’ 

compensation benefits and the claims administrator denied her claim. Ms. Harbert protested. 

Statements were taken from Tony Lilly, Theresa Whitener, Theresa Ray, Paul Wheeler, and 

1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Jennifer Hall. The testimony of Mr. Lilly and Ms. Hall indicate that prior to the August 8, 2012, 

alleged injury, Mr. Lilly and Ms. Ray predicted that Ms. Harbert would fall on Wednesday, 

August 8, 2012. Mr. Lilly opined that this would happen because Ms. Harbert falls when she gets 

mad. Mr. Lilly noted that Ms. Harbert despised working late on Wednesdays, which she was 

required to do on the day in question. Furthermore, she had just recently been denied her desired 

transfer. Ms. Whitener testified that on the day of the injury she overheard Ms. Harbert having an 

argument over the phone about a banking issue that made her visibly agitated minutes before the 

alleged injury. Mr. Wheeler testified that he saw Ms. Harbert look around and then suddenly fall 

to the ground. Mr. Wheeler then went to assist Ms. Harbert. Ms. Hall, the manager, made a copy 

of the surveillance tape that showed Ms. Harbert falling. 

The Office of Judges determined that Ms. Harbert failed to establish she was injured in 

the course of and as a result of her employment. The Office of Judges reviewed the video of the 

fall. Based upon the video, the consistent statements of her coworkers, and the inconsistencies in 

Ms. Harbert’s testimony, the Office of Judges concluded that Ms. Harbert fell on purpose. The 

Office of Judges then added that even assuming that Ms. Harbert’s fall was actually a fortuitous 

event, that there was still was no compensable injury. The only medical report of record states 

that she has hip pain after a fall at work. There was no dislocation, subluxation, or any evidence 

of an acute injury. As a result the Office of Judges affirmed the claims administrator’s decision 

to deny the claim. 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 only evidence that tends to show Ms. Harbert was injured in the course of and as a 

result of her employment is her own testimony. Her testimony was properly disregarded because 

it is refuted by many of her coworkers and the video of the fall. 

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: April 6, 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 

2