                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
WILLIAM S. PLUMLEY,                                                              February 3, 2017
                                                                              RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

vs.)   No. 16-0190	 (BOR Appeal No. 2050695)
                   (Claim No. 2014027981)

ESSROC READY MIX,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner William S. Plumley, by Patrick Maroney, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Essroc Ready Mix, by Daniel
Murdock, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated February 3, 2016, in
which the Board affirmed a July 10, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 5, 2014,
decision closing Mr. Plumley’s claim for workers’ compensation benefits on a temporary total
disability basis. 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.

        Mr. Plumley sustained a right inguinal hernia in the course of his employment on March
18, 2014.1 On May 24, 2014, Leonard Fichter, D.O., laparoscopically repaired the right inguinal
hernia. Additionally, Mr. Plumley received temporary total disability benefits from the date of

1
 The evidentiary record does not contain any details regarding the circumstances of the injury.
However, it is clear that Mr. Plumley’s claim for workers’ compensation benefits was held
compensable for a right inguinal hernia.
                                                1
surgery until he returned to work on July 14, 2014. On September 5, 2014, the claims
administrator closed Mr. Plumley’s claim on a temporary total disability basis.

        In its Order affirming the September 5, 2014, claims administrator’s decision, the Office
of Judges held that the claims administrator properly closed the claim on a temporary total
disability basis because Mr. Plumley became ineligible to receive additional temporary total
disability benefits following his return to work on July 14, 2014. The Board of Review affirmed
the reasoning and conclusions of the Office of Judges in its decision dated February 3, 2016. On
appeal, Mr. Plumley requests an award of temporary total disability benefits from March 25,
2014, through March 30, 2014, and from April 8, 2014, through April 13, 2014.2

        As was noted by the Office of Judges, the sole issue in the instant appeal is the closure of
Mr. Plumley’s claim on a temporary total disability basis. West Virginia Code § 23-4-7a (2005),
provides that temporary total disability benefits are not payable after a claimant has reached
maximum medical improvement, is released to return to work, or actually returns to work,
whichever occurs first. The Office of Judges found that pursuant to West Virginia Code § 23-4­
7a, the claim was properly closed on a temporary total disability basis because Mr. Plumley was
released to return to work approximately two months prior to the closure of the claim. We agree
with the reasoning and conclusions of the Office of Judges, as affirmed by the Board of Review.




2
 Mr. Plumley’s request for additional temporary total disability benefits was not addressed in the
September 5, 2014, claims administrator’s decision closing the claim and, as such, is not ripe for
consideration on appeal.
                                                 2
        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: February 3, 2017

CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




                                                3
