STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

MICHELLE KNICELY, April 18, 2014 

RORY L. PERRY II, CLERK Claimant Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 12-1073 (BOR Appeal No. 2046860) 

(Claim No. 2011031310) 

MYERS FUN TIME CAFE, LLC, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Michelle Knicely, by Jonathan C. Bowman, her attorney, appeals the decision 

of the West Virginia Workers’ Compensation Board of Review. Myers Fun Time Cafe, LLC, by 

Jeffrey B. Brannon, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated August 16, 2012, in 

which the Board remanded a January 6, 2012, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges reversed the claims administrator’s March 16, 2011, 

decision denying Ms. Knicely’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. 

Ms. Knicely was employed as a casino attendant by Myers Fun Time Cafe, LLC. In the 

early morning hours of January 26, 2011, Ms. Knicely slipped and fell on the premises of Myers 

Fun Time Cafe, LLC. The claims administrator denied Ms. Knicely’s application for workers’ 

compensation benefits based upon a finding that she did not receive a personal injury in the 

course of and as a result of her employment. The Office of Judges reversed the claim 

administrator’s decision and held that a preponderance of the evidence indicates that Ms. 

Knicely’s injury occurred in the course of and as a result of her employment. The Office of 

Judges held Ms. Knicely’s claim compensable for concussion, neck sprain, ankle sprain, and 

such other diagnoses as indicated by proper medical evidence. 

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The Board of Review remanded the claim to the Office of Judges’ chief administrative 

law judge for the taking of such new, additional or further evidence that may be necessary for a 

full and complete development of the facts of the claim. Ms. Knicely appeals and asserts that the 

Board of Review’s ruling must be reversed as it is clearly based upon additional new evidence 

not previously filed with the Office of Judges and therefore, the Board of Review acted outside 

of the scope of its statutory authority. Myers Fun Time Cafe, LLC, maintains that Ms. Knicely 

withheld critical information during discovery that was not uncovered until after the Office of 

Judges entered it decision. Myers Fun Time Cafe, LLC, further maintains that the Board of 

Review has the power to remand a claim to the Office of Judges for further evidentiary 

development. 

West Virginia Code § 23-5-12(d) (2006) provides that instead of affirming, reversing or 

modifying the decision of the administrative law judge, the Board of Review may for good cause 

shown, to be set forth in the order of the Board of Review, remand the case to the chief 

administrative law judge for the taking of such new, additional or further evidence as in the 

opinion of the Board of Review may be necessary for a full and complete, development of the 

facts of the case. In its Order, the Board of Review set forth claims by Myers Fun Time Cafe, 

LLC, regarding a prior workers’ compensation claim in which Ms. Knicely alleged a similar 

injury. The Board of Review remanded the Office of Judges’ Order dated January 6, 2012, with 

instructions for the Office of Judges to consider any new evidence along with the evidence that 

was previously considered and to render a decision affirming, reversing, or modifying its 

decision of January 6, 2012. We agree with the reasoning and conclusions of the Board of 

Review. 

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: April 18, 2014 

CONCURRED IN BY: 

Chief Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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