ACNR Resources, Inc. v. Thomas Banco

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
ACNR RESOURCES, INC., May 1, 2026
Employer Below, Petitioner ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
v.) No. 25-ICA-386 (JCN: 2025011213)

THOMAS BANCO,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner ACNR Resources, Inc. (“ACNR”) appeals the September 3, 2025, order
of the Workers’ Compensation Board of Review (“Board”), which reversed the claim
administrator’s order that rejected the claim, and ordered that Respondent Thomas Banco’s
claim be held compensable for a left elbow fracture and rupture of the left triceps tendon,
and remanded the claim to the claim administrator to issue an order for a determination of
Mr. Banco’s entitlement to temporary total disability (“TTD”) benefits. Mr. Banco filed a
response.1 ACNR did not file 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 Board’s order is appropriate under
Rule 21 of the West Virginia Rules of Appellate Procedure.

Mr. Banco is employed by ACNR at its Marshall County Mine as a compliance
foreman and fireboss. On May 5, 2025, Mr. Banco sought medical care in the emergency
department at Reynolds Memorial Hospital and stated he was experiencing pain and
swelling in his left elbow. He stated he slipped and fell on his elbow while he was chasing
his granddaughter on May 4, 2025. An x-ray was performed and showed a proximal
avulsion fracture and findings suggesting a distal triceps tendon tear. The clinical
impression was a closed fracture of the left elbow.

In a Marshall County Mine Report of Injury Investigation form completed on May
6, 2025, Mr. Banco stated that he fractured his left elbow after tripping and falling at work

1
ACNR is represented by Aimee M. Stern, Esq. Mr. Banco is represented by
Christopher J. Wallace, Esq.

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on May 4, 2025. Mr. Banco stated he was performing his job as a fire boss when he tripped
on a roller hidden under approximately eight inches of water and mud. Mr. Banco stated
the fall occurred around 10:30 p.m. and he reported it to ACNR at 11:15 p.m. on that same
date. On May 7, 2025, Mr. Banco again presented to the emergency department at
Reynolds Memorial Hospital, this time complaining of increased left arm pain and
swelling. The clinical impression was left arm pain and swelling, a left elbow olecranon
fracture, and left triceps tendon tear.

On May 7, 2025, Mr. Banco filed an Employees’ and Physicians’ Report of
Occupational Injury or Disease (“Report of Injury”) stating he was injured at work on May
4, 2025, when he was walking over a conveyor belt, which was underwater, and tripped on
a roller structure causing him to fall. The physician’s section was completed by a medical
provider at WVU Reynolds Hospital on May 7, 2025, and the provider stated Mr. Banco
suffered an occupational injury to his left elbow.

On May 14, 2025, Mr. Banco was seen by Michael D. Myers, D.O., and reported
persistent left elbow pain and swelling following his fall in the coal mine. An MRI showed
a full-thickness retracted tear of the left triceps. Dr. Myers assessed Mr. Banco with a
rupture of the left triceps tendon and a closed fracture of the olecranon process of the left
ulna. Dr. Myers recommended surgery to repair the triceps tear. On May 19, 2025, the
claim administrator issued an order denying Mr. Banco’s claim due to a failure to timely
report the injury and conflicting information regarding how the injury occurred. Mr. Banco
protested this order.

Mr. Banco signed a written statement on July 21, 2025, explaining that he provided
different stories about how he was injured because he was concerned that he would be fired
from his job if the injury was not severe enough to file a workers’ compensation claim. He
stated that he suffered a prior knee injury and was off work for a few months. During that
time off, Mr. Banco heard rumors that he was going to be fired, and, once he returned to
work, ACNR’s general manager called a meeting and alleged that employees were making
fraudulent injury claims. Mr. Banco further stated that he was demoted two levels from a
lead foreman to a compliance foreman after he returned to work following the knee injury.
This elbow injury occurred only two weeks after Mr. Banco returned to work from his knee
injury, and he was worried he would be fired based on the general manager’s statements.
He relayed these concerns to his supervisor and wanted to determine if the injury was
serious before he filed a workers’ compensation claim. He told the emergency department
that he had fallen while chasing his granddaughter because he thought the injury might be
minor. He was already scheduled off on May 5, 2025, but immediately reported the injury
when he returned to work on May 6, 2025. He was asked to fill out an accident report, and
ACNR’s human resources representative advised Mr. Banco to return to the emergency
department on May 7, 2025, to complete a Report of Injury.

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On September 3, 2024, the Board issued an order reversing the claim administrator’s
May 19, 2025, order, ordering Mr. Banco’s claim be held compensable for a left elbow
fracture and rupture of the left triceps tendon, and remanded the claim to the claim
administrator to determine if Mr. Banco is entitled to TTD benefits. It is from this order
that ACNR now appeals.

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.

Syl. Pt. 2, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024).

On appeal, ACNR asserts one assignment of error and argues the Board was clearly
wrong in finding Mr. Banco’s claim compensable because he stated his injury was not work
related when he first sought treatment and only stated it was work related after he realized
the extent of his injury. We disagree. “In order for a claim to be held compensable under
the Workmen’s Compensation Act, three elements must coexist: (1) a personal injury (2)
received in the course of employment and (3) resulting from that employment.” Syl. Pt. 1,
Barnett v. State Workmen’s Comp. Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970); see
also W. Va. Code § 23-4-1(a) (2024).

In this case, the Board held that Mr. Banco satisfied the first element of this test
because the weight of the medical evidence established that he sustained a left triceps
tendon rupture and a left elbow fracture. Regarding whether this injury was received in the
course of and resulting from employment, the Board acknowledged that Mr. Banco
reported he was injured while chasing his granddaughter when he first sought medical
treatment at the emergency department on May 5, 2025. However, the Board noted that
ACNR’s May 6, 2025, injury investigation form, all subsequent medical records, Mr.

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Banco’s Report of Injury form, and the Employer’s Report of Injury2 contained statements
showing Mr. Banco was injured as a result of a workplace fall that occurred on May 4,
2025. The Board also noted that Mr. Banco’s representation that he immediately reported
his injury to his supervisor was corroborated by statements in ACNR’s Report of Injury
Investigation form indicating the injury was first reported on the date it occurred. The
Board held that Mr. Banco’s statements were consistent throughout the remainder of the
record, with the exception of the emergency department records.

Further, the Board explicitly found Mr. Banco’s written statement explaining why
his reports were inconsistent to be credible and noted that no evidence was presented to
refute his claim that he was concerned about retaliation from ACNR. We decline to disturb
credibility determinations made by the Board. See Martin v. Randolph Cnty. Bd. of Educ.,
195 W. Va. 297, 306, 465 S.E.2d 399, 408 (1995) (“We cannot overlook the role that
credibility places in factual determinations, a matter reserved exclusively for the trier of
fact. We must defer to the ALJ’s credibility determinations and inferences from the
evidence . . . .”).

Based on its review of the evidence, the Board held that Mr. Banco met his burden
of establishing that he sustained an injury in the course of and resulting from his
employment. As the Supreme Court of Appeals of West Virginia has set forth, “[t]he
‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones
which presume an agency’s actions are valid as long as the decision is supported by
substantial evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473
S.E.2d 483 (1996). With this deferential standard of review in mind, we cannot conclude
that the Board was clearly wrong in reversing the claim administrator’s order and holding
Mr. Banco’s claim compensable for a left elbow fracture and a rupture of the left triceps
tendon.

Accordingly, we affirm the Board’s September 3, 2025, order.

Affirmed.

ISSUED: May 1, 2026

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Charles O. Lorensen
Judge S. Ryan White

2
ACNR did not include the Employer’s Report of Injury form in the record on
appeal.

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