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IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

WISEMAN CONSTRUCTION COMPANY, INC.,

Employer Below, Petitioner

vs.) No. 22-ICA-317 (JCN: 2022016571)

KEVIN C. HODGE,

Claimant Below, Respondent 

MEMORANDUM DECISION

Petitioner Wiseman Construction Company, Inc. (“Wiseman”) appeals the decision 

of the Workers’ Compensation Board of Review (“Board”) dated December 8, 2022, 

modifying the claim administrator’s order and ruling that the claim was compensable for 

lumbar radiculopathy. Respondent Kevin C. Hodge timely filed a response.1 Wiseman did 

not file a reply. 

 

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-

11-4 (2022). After considering the parties’ arguments, the record on appeal, and the 

applicable law, this Court finds no substantial question of law and no prejudicial error. For 

these reasons, a memorandum decision affirming the Board’s order is appropriate under 

Rule 21 of the Rules of Appellate Procedure.

On January 21, 2022, Mr. Hodge, a carpenter’s apprentice and employee of 

Wiseman, was seen at Cabin Creek Health Systems for injuries he reported were sustained 

when he fell at work about two and one-half months earlier. Ashley Portz, PA-C, examined 

Mr. Hodge and noted that he fell thirteen to sixteen feet from a roof onto his tailbone and 

was experiencing worsening low back pain radiating to his right hip, and upper back pain 

radiating to his right scapula. Ms. Portz assessed Mr. Hodge with low back pain, lumbar 

radiculopathy, and thoracic back pain. 

On January 27, 2022, Ms. Portz and Mr. Hodge completed an Employee’s and 

Physicians’ Report of Injury form. Mr. Hodge asserted that on November 2, 2021, he 

suffered a workplace injury involving his low back, middle back, hip, and thigh. Also, Mr. 

Hodge reported that he stopped working due to being laid off in December of 2021. Ms. 

Portz described the injury as lumbar radiculopathy, and also noted injuries to Mr. Hodge’s

middle back, lower back, right hip, and right thigh that were a direct result of an 

occupational injury. 

1 Wiseman is represented by Jillian L. Moore, Esq. and Steven K. Wellman, Esq. 

Mr. Hodge is represented by G. Patrick Jacobs, Esq. 

FILED

April 10, 2023

EDYTHE NASH GAISER, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
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Randall Short, D.O., issued a Physician Review dated February 15, 2022, in which 

he opined that the alleged work injury on November 2, 2021, was not supported by the 

medical records. Dr. Short focused on what he felt was a failure to timely report the injury 

to the employer or a medical provider. On February 18, 2022, the claim administrator

rejected the claim finding that it did not appear that a personal injury was sustained. 

However, the claim administrator authorized payment of Mr. Hodge’s medical expenses 

associated with the evaluation of the reported event. Mr. Hodge protested the order to the 

Board. 

In May of 2022, Mr. Hodge testified via deposition that he was injured on November 

2, 2021, while working for Wiseman. According to Mr. Hodge, he stepped on a piece of 

rotted sheet metal roofing and fell from one part of a roof to another, a distance of 

approximately thirteen feet, landing on his tailbone and back. Mr. Hodge testified that his 

union supervisor, Ryder Gray, was working on the same project and witnessed the accident. 

Further, Mr. Hodge explained that he completed his shift the day of the accident and 

continued to work thereafter due to fear of reprimand for filing a workers’ compensation 

claim. In his testimony, he also admitted that no accident report was completed on that day, 

but he noted that a report was completed around January 4, 2022. Mr. Hodge asserted that 

he first saw a doctor in late January of 2022, and he testified that he experienced pain,

swelling, and numbness after the injury. Mr. Hodge further acknowledged that he was laid 

off in December of 2021 due to a lack of work. 

Nikki Wiseman-Sydnor, the secretary/treasurer for Wiseman, signed an affidavit in 

August of 2022 stating that Mr. Hodge did not report an injury to his supervisor or any 

member of management on November 2, 2021. She further averred that after the alleged 

injury, Mr. Hodge continued to perform all assigned duties until he was laid off in 

December of 2021. Subsequently, Ms. Wiseman-Sydnor authored a second affidavit 

clarifying that in early January of 2022, Mr. Gray mentioned Mr. Hodge’s alleged accident

whereupon Mr. Gray was informed that an incident report was required. Ms. WisemanSydnor further noted that she provided Mr. Hodge with low earnings slips through January 

of 2022, and that he was aware that the slips were only available if he was willing and able 

to work.

Text messages between Mr. Hodge and Mr. Gray dated January 6, 2022, reflect 

conversations about whether an accident report had been completed. Mr. Gray indicated 

that he believed the accident had occurred on November 2, 2021. In an incident report 

dated November 2, 2021, Mr. Gray reported that Mr. Hodge suffered back pain after falling 

off a roof on November 2, 2021.

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2 Mr. Hodge testified that this report was not completed until January of 2022. 
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On December 8, 2022, the Board reversed the claim administrator’s order and held 

Mr. Hodge’s claim compensable for lumbar radiculopathy. The Board relied upon Mr. 

Hodge’s deposition, the text messages between Mr. Hodge and Mr. Gray, and the injury 

report. The Board noted that West Virginia Code § 23-4-1c(a)(2)(B) (2009)3required it to 

consider whether a notice of layoff was given within sixty days of the filing of the claim 

and that West Virginia Code of State Rules § 85-1-3.1 (2009)

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required the prompt 

reporting of work injuries. However, the Board found that neither the statute nor the rule

precluded a finding of compensability when the evidence established the credibility of the 

claim. The Board found that Mr. Hodge fell from one part of a roof to another while 

3 West Virginia Code § 23-4-1c(a) provides, in part, as follows: 

(2) In making a determination regarding the compensability of a newly filed 

claim . . . the Insurance Commissioner, private carrier or self-insured employer, 

whichever is applicable, shall consider the date of the filing of the claim for benefits 

for a determination of the following:

. . . 

(B) Whether the claimant received notice within sixty days of the

filing that his or her employment position was to be eliminated, including, 

but not limited to, the claimant’s worksite, a layoff or the elimination of the 

claimant’s employment position;

. . . 

(D) In the event of an affirmative finding upon any of these four 

factors, the finding shall be given probative weight in the overall 

determination of the compensability of the claim or of the merits of the 

reopening request.

4 West Virginia Code of State Rules § 85-1-3.1 provides, in part, as follows:

Immediately after sustaining an occupational injury, a claimant should 

1) seek necessary medical care; 2) immediately on the occurrence of the 

injury or as soon as practicable thereafter give or cause to be given to the 

employer or any of the employer’s agents a written notice of the occurrence 

of the injury; and 3) file a workers’ compensation claim ... Failure to 

immediately give notice to the employer of the injury weighs against a 

finding of compensability in the weighing of the evidence mandated by W. 

Va. Code § 23-4-1g and dilutes the credibility and reliability of the claim. 

Notice provided to the employer within two (2) working days of the injury 

shall be deemed immediate notice: Provided, That under no circumstances 

shall the fact that notice of an occupational injury was provided by the 

claimant later than two (2) working days from the time of the injury be the 

sole basis for denial of a claim.
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working for Wiseman on November 2, 2021, and sustained an injury for which he timely 

filed a workers’ compensation claim.5 Wiseman now appeals. By order entered on January 

27, 2023, this Court granted Wiseman’s motion to stay the Board’s order pending the 

outcome of this appeal.

Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in 

part, as follows:

The Intermediate Court of Appeals may affirm the order or decision of the 

Workers’ Compensation Board of Review or remand the case for further 

proceedings. It shall reverse, vacate, or modify the order or decision of the 

Workers’ Compensation Board of Review, if the substantial rights of the 

petitioner or petitioners have been prejudiced because the Board of Review’s 

findings are:

(1) In violation of statutory provisions;

(2) In excess of the statutory authority or jurisdiction of the Board of Review;

(3) Made upon unlawful procedures;

(4) Affected by other error of law;

(5) Clearly wrong in view of the reliable, probative, and substantial evidence 

on the whole record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly 

unwarranted exercise of discretion.

Duff v. Kanawha Cnty. Comm’n, No. 22-ICA-10, __ W. Va. __, __, 882 S.E.2d 916, 921

(Ct. App. 2022).

On appeal, Wiseman argues that the Board failed to give the statutorily required 

probative weight to the fact that Mr. Hodge did not file a workers’ compensation claim 

until after he was laid off from work. Further, Wiseman argues that the Board failed to 

afford any weight to Mr. Hodge’s failure to comply with the requirement in West Virginia 

Code of State Rules § 85-1-3.1 to seek medical care and notify the employer immediately.

Moreover, Wiseman argued that Mr. Hodge continued to receive low earning slips from 

the employer, which were only available if he was willing and able to work. Thus, Wiseman 

asserts that it was inconsistent for Mr. Hodge to allege he was unable to work due to an 

injury.

In response, Mr. Hodge asserts that the Board did not err in holding the claim 

compensable. Mr. Hodge contends that the Board considered Wiseman’s arguments when 

it determined an injury occurred in the course of and resulting from his employment on 

November 2, 2021. Referencing his deposition testimony, Mr. Hodge argues that he did 

5 West Virginia Code § 23-4-15(a) (2010) allows for the filing of a workers’ 

compensation claim up to six months after the date of the injury. 
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not report the incident in November of 2021 because he was scared of being reprimanded, 

a common concern among young workers, and that he tried to keep working, which should 

be applauded rather than punished.

Upon review, we find no error in the Board’s conclusions. Although the Board could

have provided more analysis in its order, it appears that the Board applied probative weight 

to Mr. Hodge’s lay-off notice and weighed Mr. Hodge’s delay in seeking medical 

treatment. As the Board found, neither West Virginia Code § 23-4-1c(a)(2)(B) nor West 

Virginia Code of State Rules § 85-1-3.1 preclude a holding of compensability here because 

the evidence established the credibility of the claim.

Accordingly, we affirm the Board’s December 8, 2022, order and vacate the stay 

granted by this Court on January 27, 2023.

Affirmed.

ISSUED: April 10, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear

Judge Charles O. Lorensen

Judge Thomas E. Scarr, not participating