1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

George E. Keaton

, Claimant Below, Petitioner

v.) No. 2 3

- 24 (JCN: 2020021565 )

(ICA No. 22

- ICA

- 32 )

Beckley Garbage Disposal

, Employer Below, Respondent



### MEMORANDUM DECISION

Petitioner George E. Keaton appeals the November 1 8 , 2022, memorandum decision of the

Intermediate Court of Appeals of West Virginia (“ ICA ”)

. See Keaton v. Beckley Garbage Disposal , No. 12

- ICA

- 32, 2022 WL 17169081 (W. Va. Ct. App. Nov. 18, 2022) (memorandum decision)

. Respondent Beckley Garbage Disposal filed a timely response. 1 The issue on appeal is whether the ICA erred in affirming the decision of the West Virginia Workers’ Compensation Office of Judges

, 2 which affirmed the claim administrator’s April 21, 2021, and September 1

, 2021, orders closing the claim for temporary to tal disability benefits and denying the addition of right shoulder pain, right shoulder bursitis, right shoulder impingement, and right shoulder arthropathy as compensable conditions in the claim.

The claimant asserts that the ICA erred in affirming the Office of Judges’ decision

. The employer maintains that the claimant points to no erroneous procedure, no arbitrary or capricious conclusions, no abuse of discretion or jurisdictional error by the tribunals below.

Questions of law are reviewed de novo, while factual findings are accorded deference

unless th ose findings are clearly wrong. Syl. Pt. 3, Duff v. Kanawha Cnty. Comm’n , No. 23

- 43, 2024 WL 1715166 (W. Va. Apr. 22, 2024). Upon consideration of the record and briefs, we find

no reversible error and therefore summarily affirm. See W. Va. R. App. P. 21(c).

Affirm ed.

1 The petitioner is represented by counsel Reginald D. Henry , and the respondent is represented by counsel Steven K. Wellman and James W. Heslep

.

2 The Intermediate Court of Appeals, not the Workers’ Compensation Board of Review, reviewed the Office of Judges’ decision in this case because the Office of Judges’ order was entered during the transfer to the reconstituted Board of Review. See W. Va. Cod e § 23

- 5

- 8a (a) (transferring powers and duties of Office of Judges to Board of Review)

. 

### FILED June 12, 2024

C. CASEY FORBES, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

ISSUED: June 12, 2024

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Elizabeth D. Walker Justice C. Haley Bunn

DISSENTING:

Justice John A. Hutchison

Justice William R. Wooton

Hutchison, Justice, dissenting:

I dissent to the majority’s resolution of this case. I would have set this case for oral argument to thoroughly address the error alle ged in this appeal. Having reviewed the parties’ briefs and the issues raised therein, I believe a formal opinion of this Court was warranted, not a

memorandum decision. Accordingly, I respectfully dissent.

Wooton, Justice, dissenting:

I respectfully dissent from the Court’s summary affirmance of Keaton v. Beckley Garb a ge Disposal , No. 12

- ICA

- 32, 2022 WL 17169081 (W. Va. Ct. App. Nov. 18, 2022) (memorandum decision), which in turn affirmed orders of the Wes t Virginia Workers’ Compensation Office of Judges closing George E. Keaton’s (“Mr. Keaton”) claim for temporary total disability benefits and denying the addition of right shoulder pain, right shoulder bursitis, right shoulder impingement, and right should er arthropathy as compensable conditions in the claim.

Mr. Keaton suffered a work

- related injury, specifically, a fracture of the right clavicle, while pushing a dumpster. It is undisputed that he had preexisting degenerative joint disease in the

shoulde r which caused him pain; however, it is also undisputed that this preexisting condition did not require treatment and was not in any way disabling. Given these facts, I believe that Mr. Keaton

should be afforded a Moore 1 hearing to determine whether some or all of the conditions sought to be included in the claim were “discrete new injuries” pursuant to syllabus point three of Gill v. City of Charleston , 236 W. Va. 737, 783 S.E.2d 857 (2016):

A noncompensable preexistin g injury may not be added as a
compensable component of a claim for workers ’ compensation
medical benefits merely because it may have been aggravated by a
compensable injury. To the extent that the aggravation of a

1 Moore v. ICG Tygart Valley , LLC, 247 W. Va. 292, 879 S.E.2d 779 (2022)

.3 noncompensable preexisting injury results in a discreet [sic] new injury, that new injury may be found compensable.

I cannot accept the underlying assumption in the opinion of the Intermediate Court of
Appeals, affirmed by this Court, that Mr. Keaton’s preexisting degenerative joint disease

coin cidentally became symptomatic

– indeed, disabling

– at the time of his work

- related injury. In

cases such as this, Gill requires a full and fair evaluation of causation; and Moore provides a
mechanism for conducting that evaluation. Because the effect of t he Court’s decision is to deny
such an evaluation, I respectfully dissent.