STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

July 9, 2015 

RORY L. PERRY II, CLERK 

FRANKLIN L. VANNOY, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 14-1067	 (BOR Appeal No. 2049357) 

(Claim No. 2013024315) 

S & E CLEARING & HYDROSEEDING, LLC, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Franklin L. Vannoy, by Anne Wandling, his attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. S & E Clearing & Hydroseeding, 

LLC, by Matthew Williams, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated September 23, 2014, in 

which the Board affirmed a March 27, 2014, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s February 28, 2013, 

decision rejecting the petitioner’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. 

The petitioner alleges that he injured himself when he slipped while repairing a piece of 

heavy machinery and fell a distance of approximately four to five feet, landing on his back. On 

January 31, 2013, he filed a Report of Injury listing the date of injury as October 3, 2012, which 

was signed by Robert Lowe, M.D. Dr. Lowe indicated that he first treated the petitioner in 

relation to the alleged injury on October 9, 2012. 

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A letter dated October 3, 2012, and signed “Josh Jones, Foreman” was submitted in 

support of the petitioner’s claim. The letter states that the petitioner was injured while repairing 

an excavator when he slipped, fell a distance of four to five feet, and landed on his back. The 

letter then indicates that because the petitioner experienced difficulty with his right leg giving out 

the following day, he was instructed not to return to work until he obtained clearance to do so 

from a physician. 

Richard Hall investigated the circumstances surrounding the alleged injury on behalf of 

the claims administrator. During the course of his investigation, he interviewed Diann Hannah, 

who is employed in a managerial position with S & E Clearing & Hydroseeding; Christopher 

“Josh” Jones, employed by S & E Clearing & Hydroseeding as a mechanic; Randall Mapes, who 

was the petitioner’s direct supervisor; Bobby Daugherty, who is employed as a heavy equipment 

operator with S & E Clearing & Hydroseeding; and the petitioner. Mr. Hall conducted all five 

interviews on February 14, 2013. 

Ms. Hannah stated to Mr. Hall that the petitioner was hired by S & E Clearing & 

Hydroseeding in the early summer of 2012 as a mechanic. She then stated that the petitioner’s 

last documented date of employment was September 1, 2012, but noted that the petitioner 

reported his injury as occurring on October 3, 2012. Ms. Hannah then opined that the signature 

on the letter purporting to be written by “Josh Jones” does not match the known signature of Mr. 

Jones contained in his personnel file and further stated that Mr. Jones personally told her that he 

did not write the letter allegedly bearing his signature. 

The petitioner reported to Mr. Hall that he is certain that he was not injured on October 3, 

2012, and stated that he now believes that the alleged injury occurred in either August of 2012 or 

September of 2012. The petitioner then stated that he initially reported the date of injury as 

October 3, 2012, because Mr. Jones, his coworker, reported to him that October 3, 2012, was the 

correct date of injury. Further, the petitioner stated that both Mr. Jones and Mr. Daugherty 

witnessed the incident. Additionally, the petitioner reported to Mr. Hall that he requested a letter 

from Mr. Jones describing the alleged injury and further reported that he received the requested 

letter in the mail and submitted it to the claims administrator as evidence. 

Mr. Jones reported to Mr. Hall that he is also known by the name “Josh Jones” but that he 

routinely signs all documents as “Christopher J. Jones”. He then stated that the petitioner never 

requested that Mr. Jones vouch for him regarding a work-related injury and further stated that 

Mr. Jones did not write nor sign the letter dated October 3, 2012, allegedly bearing Mr. Jones’s 

signature. Further, Mr. Jones stated that he was unaware that the petitioner had ever suffered a 

work-related injury. Additionally, Mr. Daugherty reported to Mr. Hall that he never witnessed 

the petitioner sustain a work-related injury and never heard the petitioner mention that he 

sustained a work-related injury. Finally, Mr. Mapes reported to Mr. Hall that the petitioner never 

reported sustaining a work-related injury to any of his supervisors. 

The claims administrator rejected the petitioner’s application for workers’ compensation 

benefits on February 28, 2013, based upon a finding that an investigation of the alleged injury 

revealed sufficient inconsistencies and contradictions to conclude that a work-related injury did 

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not occur. The petitioner testified in a hearing before the Office of Judges on June 11, 2013, and 

once again stated that he was injured in the course of his employment when he slipped while 

repairing an excavator. He reiterated his prior assertion that Mr. Jones and Mr. Daugherty were 

both witnesses to the alleged incident. 

In its Order affirming the February 28, 2013, claims administrator’s decision, the Office 

of Judges held that the petitioner has failed to demonstrate that he sustained an injury in the 

course of and resulting from his employment. The Board of Review affirmed the reasoning and 

conclusions of the Office of Judges in its decision dated September 23, 2014. On appeal, the 

petitioner asserts that the evidence of record demonstrates that he sustained an injury in the 

course of his employment with S & E Clearing & Hydroseeding, LLC. 

The Office of Judges found that the evidence of record demonstrates that the petitioner 

was not employed with S & E Clearing & Hydroseeding on the initially reported date of injury, 

namely October 3, 2012. The Office of Judges further found that the evidence of record does not 

provide clear evidence establishing that the petitioner sustained an injury in either August of 

2012 or September of 2012. Further, the Office of Judges noted that evidence received from the 

petitioner’s treating physician, Dr. Lowe, indicates that the petitioner reported sustaining an 

injury after falling from a piece of heavy equipment, but Dr. Lowe does not specify when the 

alleged injury occurred. 

Moreover, the Office of Judges noted that the claim is fraught with inconsistencies 

concerning not only the alleged date of injury, but also the circumstances surrounding the alleged 

injury. Specifically, the Office of Judges noted that although the petitioner identified Mr. Jones 

and Mr. Daugherty as witnesses to the alleged incident, both denied ever witnessing the 

petitioner sustain a work-related injury. Finally, the Office of Judges concluded that Mr. Hall’s 

investigation reveals that the “Josh Jones” letter provided to the claims administrator is a forgery, 

as was confirmed by Mr. Jones’s own statements. We agree with the reasoning and conclusions 

of the Office of Judges as affirmed by the Board of Review. The evidence of record fails to 

establish that the petitioner sustained an injury in the course of and resulting from his 

employment with S & E Clearing & Hydroseeding, LLC. 

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: July 9, 2015 

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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 

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