                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             November 14, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
PHILLIP FRYE,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0843	 (BOR Appeal No. 2048193)
                    (Claim No. 2012025154)


PINE RIDGE COAL COMPANY, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Phillip Frye, by Edwin H. Pancake, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Pine Ridge Coal Company, LLC, by
Henry C. Bowen, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated July 24, 2013, in which
the Board affirmed a February 19, 2013, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges modified the claims administrator’s July 16, 2012, decision
denying Mr. Frye’s request to reopen his claim for temporary total disability 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.

        Mr. Frye worked for Pine Ridge Coal Company, LLC as a utility worker. Mr. Frye filed a
request to reopen his claim for temporary total disability benefits. Paul Bachwitt, M.D.,
concluded that Mr. Frye’s multi-level degenerative disc disease was pre-existing and that he was
at his maximum medical improvement when he returned to full duty work on January 21, 2012.
He further concluded that Mr. Frye’s 5% impairment for this compensable injury had been fully
compensated by his previously received 8% permanent partial disability award for the lumbar
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spine. The claims administrator denied the request to reopen the claim on a temporary total
disability benefits basis based upon the independent medical evaluation of Dr. Bachwitt.

        The Office of Judges modified the claims administrator’s decision and denied the request
for reopening on the basis that there is insufficient medical evidence to demonstrate that Mr.
Frye was entitled to additional temporary total disability benefits due to the subject compensable
injury. The Board of Review affirmed the Order of the Office of Judges. On appeal, Mr. Frye
disagrees and asserts that his need for temporary total disability benefits is justified by the
medical evidence and his testimony. He further asserts that even though he initially returned to
work, he has shown reliable evidence that proves his back injury has progressed with increasing
pain levels to render him disabled again from his usual occupation as a coal miner. The employer
maintains that the evidence in record does not support a reopening of the claim because the facts
are substantially similar to those already considered. It further maintains that there is no evidence
of an aggravation or progression of Mr. Frye’s injury not previously considered. Pine Ridge Coal
Company, LLC asserts that Mr. Frye returned to work after Dr. Bachwitt found him to have
reached his maximum medical improvement until he was laid off due to the mine closing and
that reaching maximum medical improvement is one statutory basis for stopping temporary total
disability benefits.

        The Office of Judges found that the evidence revealed Mr. Frye suffered an injury to his
low back on January 16, 2012, and was held compensable for lumbosacral sprain. The Office of
Judges concluded that the evidence further showed Mr. Frye had pre-existing problems in his
low back in the form of degenerative changes that caused him to be off work for a significant
amount of time prior to his work-related incident. The Office of Judges pointed out that Mr. Frye
was able to return to work for a short period of time immediately after the injury. The Office of
Judges concluded that Mr. Frye may have a herniated disc in the lumbar spine but this condition
is not compensable. It held that the record is insufficient to reopen the claim for temporary total
disability benefits. The Board of Review affirmed the Order of the Office of Judges.

        We agree with the conclusion of the Board of Review and the findings of the Office of
Judges. Mr. Frye was able to return to work immediately following the injury and only ceased
working when he was laid off because the mine was shut down. The evidence shows that Mr.
Frye had pre-existing problems in his lower back. The claim was held compensable for
lumbosacral sprain and not for a herniated disc. Therefore, temporary total disability benefits
have properly been denied because the evidence does not reveal that Mr. Frye is temporarily
totally disabled due to the lumbosacral sprain, the only compensable condition of the claim.

        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: November 14, 2014
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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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