STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

December 3, 2014 

RORY L. PERRY II, CLERK 

SWVA, INC., SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Employer Below, Petitioner 

vs.) No. 13-1016 (BOR Appeal No. 2048220) 

(Claim No. 2012020814) 

FOREST A. ADKINS, 

Claimant Below, Respondent 

MEMORANDUM DECISION 

Petitioner SWVA, Inc., by Steven K. Wellman, its attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. 

This appeal arises from the Board of Review’s Final Order dated September 4, 2013, in 

which the Board affirmed a February 21, 2013, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges reversed the claims administrator’s January 20, 2012, 

decision which rejected 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. 

Mr. Adkins, a laborer, was injured in the course of his employment on June 30, 2011, 

while swinging a sledgehammer. He testified in a deposition on May 9, 2012, that he reported 

the injury to his foreman and filled out an incident report. After the injury, he was sore for a few 

days and thought he had pulled a muscle. He stated that he believed the injury would resolve on 

its own but he kept aggravating it when he used a sledgehammer. He stated that he sustained no 

left shoulder injuries prior to June 30, 2011. 

The employee’s and physician’s report of injury dated December 21, 2011, indicates that 

Mr. Adkins sustained a left shoulder strain while swinging a sledgehammer in the course of his 

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employment. A treatment note dated December 21, 2011, by Allen Young, M.D., states that Mr. 

Adkins was swinging a sledgehammer at work and felt a pop in his shoulder. He worked around 

the pain for some time but eventually was no longer able to. There was no history of a prior left 

shoulder injury. Dr. Young diagnosed sprain of the left shoulder and upper arm. He opined that 

there was likely a tendon tear that would need to be surgically treated. A left shoulder MRI 

revealed full thickness and intrasubstance tears of the supraspinatus tendon, intrasubstance tears 

of the infraspinatus and subscapularis tendons, and an anterior labral tear. 

The claims administrator rejected the claim on January 20, 2012. The Office of Judges 

reversed the decision and held the claim compensable for a left shoulder injury in its February 

21, 2013, Order. The Office of Judges determined that a preponderance of the evidence indicated 

that Mr. Adkins injured his left shoulder in the course of his employment. He testified that he 

was able to work through his shoulder discomfort but that the pain progressively worsened. The 

Office of Judges found that this was not inconsistent with him failing to mention a shoulder 

injury to his treating physician when he saw him on September 14, 2011. Mr. Adkins testified his 

injury worsened with subsequent aggravations until he was in considerable pain by December of 

2011. At that point, he sought treatment. Further, the Office of Judges found that Mr. Adkins 

testified that he promptly reported the injury to his supervisor, and his assertion was not 

disputed. Ultimately, the Office of Judges held that Mr. Adkins gave a credible account of how 

his injury occurred, and the fact that he did not report the injury until much later did not, in itself, 

mean that he did not suffer a compensable injury. The Board of Review adopted the findings of 

fact and conclusions of law of the Office of Judges and affirmed its Order in its September 4, 

2013, decision. 

On appeal, SWVA, Inc., argues that the evidentiary record does not support Mr. Adkins’s 

contention that he was injured in the course of his employment. After review, we agree with the 

reasoning of the Office of Judges and the conclusions of the Board of Review. The evidentiary 

record indicates Mr. Adkins sustained a left shoulder injury in the course of and resulting from 

his employment. The fact that he did not immediately seek medical attention does not mean he 

did not sustain a compensable injury. He promptly reported the injury to his supervisor and filled 

out an incident report. 

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: December 3, 2014 

CONCURRED IN BY: 

Chief Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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DISSENTING: 

Justice Brent D. Benjamin 

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