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### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

ROSA BENNETT, Claimant Below, Petitioner

vs.) No. 11-1314 (BOR Appeal No. 2045607) (Claim No. 2010113170)

GREENBRIER HOTEL CORPORATION (FORMERLY CSX HOTELS, INC.), Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Rosa Bennett, by Patr ick K. Maroney, her attorney, appeals the decision of the West Virginia Workers’ Compensation Boar d of Review. Greenbrier Hotel Corporation (Formerly CSX Hotels, Inc.), by H. Toney St roud, its attorney, filed a timely response.

This appeal arises from the Board of Re view’s Final Order dated August 23, 2011, in which the Board affirmed a January 24, 2011, Orde r of the Workers’ Compensation Office of Judges. In its Order, the Offi ce of Judges affirmed the claims administrator’s December 28, 2009, decision denying Ms. Bennett’s application fo r workers’ compensation benefits. The Court has carefully reviewed th e 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 deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate

Procedure.

Ms. Bennett alleges that she injured her shoulder on October 15, 2009, while giving a manicure as a cosmetologist for Greenbrier Hotel Corporation. On December 28, 2009, the

claims administrator denied Ms. Bennett’s cla im for workers’ compensation benefits because there was no isolated event resulting in a work-r elated injury and furthe r, medical documentation stated Ms. Bennett has experienced shoulder pain fo r three to four years, indicating the condition was preexisting. 

### FILED

June 5, 2013
RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 The Office of Judges affirmed the claims ad ministrator’s decision, and held that the medical evidence did not establish an injury oc curred during her job responsibilities on October 15, 2009. On appeal, Ms. Bennett disagrees and asserts that her claim should be held compensable for a rotator cuff tear, shoulder, arm, and hand injury because her job requires repetitive movements of her arms and shoulders, and Dr. Behsudi and Dr. Pence found her injury to be occupational. Greenbrier Hotel Corporat ion maintains that Ms. Bennett’s tendonitis is caused by age-related tendon degeneration, and is an ongoing injury that has existed since 2006.

It also maintains that it is not clear if Ms. Benne tt is arguing that she has a traumatic injury or a repetitive motion injury.

The Office of Judges concluded that Ms. Bennett failed to establish a credible preponderant evidentiary foundation th at she incurred an in jury in the course of and as a result from her employment on October 15, 2009. The O ffice of Judges stated that the initial emergency room records from Alleghany Regional Hospital dated October 19, 2009, referenced Ms. Bennett’s history of left shoulder pain for year s prior to the alleged date of injury that had worsened over the past two days, but failed to doc ument an isolated incident. It noted that Dr.

Pack’s office notes from October 21, 2009, through December 8, 2009, imply that the left shoulder condition was a chronic problem without “s pecific trauma or injury to the shoulder.” The Office of Judges further noted that Dr. Whitf ield and the Greenbrier Chiropractic Clinic’s records lack any definitive or credible ev identiary foundation evidencing Ms. Bennett’s job responsibilities as a proximate cause of the diagnostic assessment of the left shoulder. Ultimately, the Office of Judges found that th e record designation reflects evidentiary inconsistences and ambiguities on how rotator cuff syndrome of the left shoulder occurred and held that the claim was not compensable. Th e Board of Review reached the same reasoned conclusions in its decision of August 23, 2011. We agree with the reasoni ng and conclusions of

the Board of Review.

For the foregoing reasons, we find that the deci sion 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 materi al misstatement or mischaracterization of the evidentiary record. Therefore, the decision of the Board of Review is affirmed.

Affirmed.



### ISSUED: June 5, 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