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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

George E. Keaton,

Claimant Below, Petitioner

v.) No. 23-24 (JCN: 2020021565)

 (ICA No. 22-ICA-32)

 

Beckley Garbage Disposal, 

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner George E. Keaton appeals the November 18, 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 total 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 those 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). 

 Affirmed.

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. Code § 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 VIRGINIA
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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 alleged 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 Garbage 

Disposal, No. 12-ICA-32, 2022 WL 17169081 (W. Va. Ct. App. Nov. 18, 2022) (memorandum 

decision), which in turn affirmed orders of the West 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 shoulder 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 

shoulder 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 Moore1hearing 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 preexisting 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).
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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 

coincidentally 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 the Court’s decision is to deny 

such an evaluation, I respectfully dissent.