STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

May 7, 2015 

RORY L. PERRY II, CLERK 

JEFFERY W. HACKENBERG, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 14-0692	 (BOR Appeal No. 2049166) 

(Claim No. 2014013378) 

JAG COAL SERVICES, LLC, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Jeffery W. Hackenberg, by John Shumate Jr., his attorney, appeals the decision 

of the West Virginia Workers’ Compensation Board of Review. JAG Coal Services, LLC, by 

Robert Busse, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated July 1, 2014, in which 

the Board affirmed a January 29, 2014, Order of the Workers’ Compensation Office of Judges. 

In its Order, the Office of Judges affirmed the claims administrator’s October 10, 2013, decision 

rejecting Mr. Hackenberg’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. 

On September 12, 2013, Mr. Hackenberg sought treatment in Raleigh General Hospital’s 

emergency department for back pain arising from an alleged fall in the course of his employment 

that occurred approximately one month prior and was diagnosed with a lumbosacral 

sprain/strain. Also on September 12, 2013, Mr. Hackenberg filed a Report of Injury alleging that 

he sustained injuries to his lower back, left hip, and left lower extremity on August 13, 2013, 

when he slipped and fell in mud. On October 10, 2013, the claims administrator rejected his 

application for workers’ compensation benefits. 

1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mr. Hackenberg testified at a hearing before the Office of Judges on December 20, 2013, 

and stated that following the alleged incident, he immediately reported the incident via a twoway radio. He further testified that he discussed the injury with two co-workers during a 

scheduled break. Finally, he testified that he did not seek immediate medical care because he 

hoped that the injury would resolve spontaneously, although he alleges that he experienced 

ongoing pain. Aaron Stowers, co-owner of JAG Coal Services, also testified before the Office of 

Judges on December 20, 2013. Mr. Stowers testified that the company was unaware of the 

alleged injury until Mr. Hackenberg sought medical treatment on September 12, 2013. 

In its Order affirming the October 10, 2013, claims administrator’s decision, the Office of 

Judges held that the preponderance of the evidence fails to establish that Mr. Hackenberg 

sustained a compensable injury on August 13, 2013. The Board of Review affirmed the 

reasoning and conclusions of the Office of Judges in its decision dated July 1, 2014. On appeal, 

Mr. Hackenberg asserts that the evidence of record demonstrates that he sustained a lumbosacral 

sprain in the course of his employment on August 13, 2013. 

The Office of Judges determined that based upon the evidence of record, Mr. Hackenberg 

has failed to sustain his burden of proof. The Office of Judges noted that although Mr. 

Hackenberg sought treatment from his family physician six days after the alleged date of injury, 

he failed to mention either the alleged injury or his ongoing lower back pain. Further, the Office 

of Judges found that despite Mr. Hackenberg’s testimony that he experienced ongoing 

considerable pain as a result of the alleged injury, he made no attempt to notify JAG Coal 

Services of the injury and continued to work his regularly scheduled shifts. Additionally, the 

Office of Judges found that Mr. Hackenberg failed to offer a reasonable explanation regarding 

why he failed to give JAG Coal Services proper notification of the alleged injury. Finally, the 

Office of Judges concluded that Mr. Hackenberg’s failure to timely report the alleged injury and 

failure to seek medical treatment during the month following the alleged injury have diluted his 

allegation that he sustained an injury in the course of his employment on August 13, 2013. We 

agree with the reasoning and conclusions of the Office of Judges as affirmed by 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: May 7, 2015 

2 
 

 

 

 

 

 

 

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 

3