Debra B Ford v. City of Marshall

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA FILED FRANK MAYER, June 27, 2025 Claimant Below, Petitioner ASHLEY N. DEEM, CHIEF DEPUTY CLERK INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA v.) No. 24-ICA-462 (JCN: 2023021874) CITY OF CLARKSBURG, Employer Below, Respondent MEMORANDUM DECISION Petitioner Frank Mayer appeals the October 30, 2024, order of the Workers’ Compensation Board of Review (“Board”). Respondent City of Clarksburg (“Clarksburg”) filed a response.1 Mr. Mayer did not reply. The issue on appeal is whether the Board erred in affirming the claim administrator’s order, which denied authorization for a right reverse total shoulder arthroplasty. This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51- 11-4 (2024). 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 May 24, 2023, while employed by Clarksburg, Mr. Mayer was mowing when he slipped and fell, landing with his leg bent underneath him. Mr. Mayer was seen at the United Hospital Center Emergency Room on the date of the injury, with a chief complaint of left knee pain and right shoulder pain. The assessment was a patella fracture and right shoulder strain. Mr. Mayer filed an Employees’ and Physicians’ Report of Occupational Injury dated May 24, 2023, indicating that he suffered an injury to his right shoulder and left leg when he was cutting grass on a hillside, and he fell when the bank gave way. The physician’s portion was signed at United Hospital Center and notes an occupational injury to the right shoulder and left knee. On May 26, 2023, Mr. Mayer was seen by William Dahl, M.D., who assessed a rupture of the left quadricep, a closed fracture of the left patella, and an injury of the right shoulder. Dr. Dahl opined that Mr. Mayer would benefit from surgical fixation of the left 1 Mr. Mayer is represented by J. Thomas Greene, Jr., Esq., and T. Colin Greene, Esq. Clarksburg is represented by James W. Heslep, Esq. 1 quadriceps rupture. The claim administrator issued an order dated May 31, 2023, holding the claim compensable for a strain of muscle, fascia, and tendon involving the right shoulder and upper arm; a strain of the left quadriceps; and a closed fracture of the left patella. Mr. Mayer was seen by Joshua Sykes, M.D., on November 27, 2023, for a follow up subsequent to a left quadriceps repair performed on June 1, 2023. Mr. Mayer reported a constant sharp, burning, and throbbing pain that he rated 5/10, and is worse with activity; that he had numbness and tingling when sitting; that his knee continued to swell; and that he was progressing with physical therapy. On December 28, 2023, Mr. Mayer underwent a CT of his right shoulder, which had the impression of severe acromioclavicular and mild glenohumeral osteoarthritis, retracted tears of the supraspinatus and infraspinatus tendons, a suspected full thickness tear of the superior bundle of the subscapularis, and suspected extensive degenerative labral tearing. On January 23, 2024, Dr. Sykes assessed Mr. Mayer with status post tendon repair, rupture of left quadriceps, and right rotator cuff tear. Dr. Sykes noted that Mr. Mayer has had a work-related shoulder tear for over twenty years that had progressed from his previous MRI. On February 7, 2024, Mr. Mayer was evaluated by Kelly Agnew, M.D. Dr. Agnew noted that Mr. Mayer has a large retracted, irreparable right rotator cuff tear, that was documented in 2003, and that this tear was never repaired. Dr. Agnew opined that there was nothing on the recent CT scan with arthrogram of the right shoulder to suggest an acute injury and that all the changes were chronic. Dr. Agnew further opined that there was no evidence of a lingering strain and that the findings were expected from the chronic rotator cuff disruption. Dr. Agnew found that Mr. Mayer had reached maximum medical improvement from the shoulder and upper arm portion of his injury. Dr. Agnew noted that Mr. Mayer had been offered total shoulder arthroplasty by Dr. Sykes, and he opined that any such treatment would be for the underlying chronic pathology that dates back to 2003; and that arthroplasty could not possibly be ascribed to any identifiable injury involving the right shoulder from May 24, 2023. Mr. Mayer followed u

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA FILED June 27, 2025 LATONYA BURTON, ASHLEY N. DEEM, CHIEF DEPUTY CLERK Plaintiff Below, Petitioner INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA v.) No. 24-ICA-339 (Cir. Ct. Kanawha Cnty. Case No. CC-20-2024-C-462) WEST VIRGINIA DIVISION OF CORRECTIONS and JOHN AND JANE DOES, Defendants Below, Respondents MEMORANDUM DECISION Petitioner Latonya Burton appeals the July 26, 2024, order from the Circuit Court of Kanawha County granting Respondent West Virginia Division of Corrections (“WVDCR”) and John and Jane Does’ (collectively “the Does”) Motion to Dismiss and denying Ms. Burton’s July 22, 2024, motion moving the circuit court to reconsider its ruling dismissing all Ms. Burton’s claims against the Does. WVDCR and the Does filed a response.1 Ms. Burton filed a reply. This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51- 11-4 (2024). 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 circuit court’s order is appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure. Ms. Burton was incarcerated at Eastern Regional Jail (“ERJ”) located in Martinsburg, West Virginia. ERJ is a correctional facility owned and operated by WVDCR. On April 11, 2022, Ms. Burton alleges she was being loaded into a prison transportation van to be taken from ERJ to Potomac Highlands Regional Jail and Correctional Facility (“PHRJ”) for a one-night layover before she reached Lakin Correctional Center and Jail (“Lakin”). During the process of being loaded into a transport van, Ms. Burton alleges both her arms and legs were shackled. The complaint alleges “[t]he corrections officer did not help the plaintiff into the van and did brace her from behind as she attempted to lift her body into the van while shackled.” Ms. Burton further alleges she struck her head on a 1 Ms. Burton is represented by Joseph H. Spano, Jr., Esq. WVDCR and the Does are represented by Matthew R. Whitler, Esq. 1 metal pole while trying to enter the van, fell backwards down metal steps, and fell headfirst onto the ground suffering injury. She alleges the corrections officer moved out of the way and allowed her to fall. Finally, she alleges she did not receive medical care while she was at PHRJ or Lakin. On April 18, 2024, Ms. Burton filed her complaint against WVDCR and John and Jane Does. The complaint alleges a claim for negligence against all respondents, a claim for negligent infliction of emotional distress against all respondents, and a claim for negligent hiring, retention, and supervision against WVDCR only. On May 20, 2024, respondents filed a motion to dismiss arguing they were entitled to qualified immunity. Ms. Burton filed a response and respondents filed a reply. At the July 12, 2024, hearing on the motion, Ms. Burton’s counsel clarified that although the complaint states that the unidentified officer did “brace [Ms. Burton] from behind as she attempted to lift her body into the van while shackled,” it was intended to state that Ms. Burton was not braced during her attempt to enter the van. After hearing arguments from the parties, the circuit court found that the unknown correctional officer engaged in discretionary acts and that Ms. Burton failed to plead that the respondents were in violation of a clearly established right. The circuit court then granted qualified immunity to all respondents, dismissed all three counts of the complaint, and granted the motion to dismiss. That same day, Ms. Burton filed a motion moving the circuit court to reconsider its ruling to dismiss the negligence and negligent infliction of emotional distress claims against the Does. On July 22, 2024, after respondents submitted their proposed order, Ms. Burton filed a renewed objection to the dismissal. On July 26, 2024, the circuit court entered a written order granting the motion to dismiss on all claims with prejudice and denying Ms. Burton’s objections because there was no cause to reconsider its ruling. It is from this order that Ms. Burton now appeals. This Court reviews a circuit court’s rulings on a motion to dismiss under a de novo standard of review. Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995) (“Appellate review of a circuit court’s order granting a motion to dismiss

NUMBER 13-25-00278-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG IN RE CMG3, LLC D/B/A USA FOUNDATION REPAIR ON PETITION FOR WRIT OF MANDAMUS MEMORANDUM OPINION Before Chief Justice Tijerina and Justices West and Cron Memorandum Opinion by Justice Cron1 By petition for writ of mandamus, relator CMG3, LLC d/b/a USA Foundation Repair contends that the trial court abused its discretion by disqualifying its counsel of record, Stephen P. Carrigan and Carrigan & Anderson, PLLC, in the underlying personal injury lawsuit. 2 1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R. 47.4 (distinguishing opinions and memorandum opinions). 2 This petition for writ of mandamus arises from trial court cause number 2022CCV-61423-3 in the County Court at Law No. 3 of Nueces County, Texas. Relator filed a related appeal from this same trial court proceeding which is docketed in our appellate cause number 13-25-00248-CV. By separate  Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem. Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836, 840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that: (1) the trial court abused its discretion, and (2) the relator lacks an adequate remedy on appeal. In re USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 135–36; Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). When a trial court abuses its discretion by granting a motion to disqualify counsel, appeal is an inadequate remedy. In re Murrin Bros. 1885, Ltd., 603 S.W.3d 53, 57 (Tex. 2019) (orig. proceeding); In re Turner, 542 S.W.3d 553, 555 (Tex. 2017) (orig. proceeding) (per curiam); In re Guar. Ins. Servs., Inc., 343 S.W.3d 130, 132 (Tex. 2011) (orig. proceeding) (per curiam); In re Cerberus Cap. Mgmt., L.P., 164 S.W.3d 379, 383 (Tex. 2005) (orig. proceeding) (per curiam); In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding) (per curiam); NCNB Tex. Nat’l Bank v. Coker, 765 S.W.2d 398, 400 (Tex. 1989) (orig. proceeding). Consequently, the “pertinent inquiry” in such cases is whether the trial court abused its discretion by disqualifying counsel. See In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (orig. proceeding) (per curiam). The Court, having examined and fully considered the petition for writ of mandamus, the response filed by real party in interest Ismael Perez, the record provided, and the memorandum opinion issued on this same day, we have dismissed that appeal for want of jurisdiction. See CMG3, LLC v. USA Found. Repair v. Perez, No. 13-25-00248-CV, 2025 WL _____, at *__ (Tex. App.— Corpus Christi–Edinburg June __, 2025, no pet. h.) (mem. op.). 2 applicable law, is of the opinion that relator has not met its burden to obtain relief. See In re Turner, 542 S.W.3d at 555–58. Accordingly, we lift the stay previously imposed in this case. See TEX. R. APP. P. 52.10(b) (“Unless vacated or modified, an order granting temporary relief is effective until the case is finally decided.”). We deny the petition for writ of mandamus. JENNY CRON Justice Delivered and filed on the 23rd day of June, 2025. 3

No. 24-ICA-269 – Union Carbide Corporation, a subsidiary of the Dow Chemical Company v. Christina Dearien (decedent) and Thomas Dearien (dependent) FILED June 4, 2025 WHITE, Judge, concurring: ASHLEY N. DEEM, CHIEF DEPUTY CLERK INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA I wholeheartedly concur with the majority’s opinion and its application of the doctrine of collateral estoppel espoused in State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). In the workers’ compensation system, a “claims administrator” is an insurance company employee who, whilst ostensibly applying West Virginia’s workers’ compensation laws and regulations to rule on a claimant’s claim, is also focused on protecting the interests of the insurance company and, indirectly, those of the claimant’s employer. The majority opinion deftly notes that a claims administrator “is not bound by the traditional rules operative to an adversary system” and does not issue decisions remotely on par with “a quasi-judicial determination of an administrative agency.” ___ W. Va. at ___, ___ S.E.2d at ___ (Slip. Op. at 9). Hence, to put the majority’s ruling succinctly: a ruling, assessment, decision, or any other pronouncement by a claims administrator cannot form the basis for collateral estoppel under Miller. This Court recognizes that its authority is limited to what is expressly provided by the Legislature. See W. Va. Code § 51-11-4 (2024). In line with the Legislature’s limitations, the majority opinion constrains its application of Miller and, upon establishing that Miller’s collateral estoppel rule does not apply to claims examiner decisions and that the lower tribunal’s decision was correct, it ends its analysis. 1  What leaves me troubled, however, is that this is the second time in a year that collateral estoppel has arisen at the appellate level in the context of workers’ compensation rulings. It also is the second time in a year that application of the collateral estoppel doctrine has been rejected. In our ruling today, we rejected an employer’s attempt to use an adverse claims administrator’s ruling against a living claimant to later preclude the claim of a dependent seeking benefits for the work-related death of that claimant. In Ruble v. Rust-Oleum Corporation, 250 W. Va. 324, 902 S.E.2d 873 (2024), the Supreme Court of Appeals of West Virginia (“SCAWV”) found, under the collateral estoppel guidelines of Miller, that a tortfeasor in a lawsuit could not use an adverse ruling against a workers’ compensation claimant to subsequently preclude the lawsuit by the claimant against the tortfeasor for injuries the claimant sustained on the job. The SCAWV found that because a workers’ compensation claim uses legal standards and procedural rules that are “substantially different from those in a courtroom,” a final ruling by a workers’ compensation judge does not have preclusive effect in a lawsuit. Id. at 326, 902 S.E.2d at 875. I write separately to underscore that, in cases like the one at bar, where there has been an adverse ruling against a living claimant, that adverse ruling has no preclusive effect on a subsequent claim for death benefits by the deceased claimant’s dependents. West Virginia law is clear: an adverse workers’ compensation decision against a living claimant has no collateral estoppel effect, and no res judicata effect, on a later claim for dependent’s benefits arising from the claimant’s work-related death. None. There are two 2 independent and separate rights of recovery under the Workers’ Compensation Act, both based on the same injury or disease: one for the worker during his or her lifetime, and another for the worker’s dependents after his or her death. The parties in the claims are different, the parties are not in privity, and their statutory rights are different. Put simply, the actions of an injured worker who litigates a workers’ compensation claim while alive will have no preclusive effect on the rights of the worker’s dependent survivors, should the worker die as a result of his or her work-related injury or disease. This is not just my opinion. For eight-and-a-half decades, the Supreme Court of Appeals of West Virginia (“SCAWV”) has found that a claim for workers’ compensation disability benefits by a living claimant, and a claim for death benefits by a deceased claimant’s dependents, “are not the same, nor is a claim for the latter