                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
PILGRIM’S PRIDE CORPORATION                                                    October 21, 2013
                                                                            RORY L. PERRY II, CLERK
OF WEST VIRGINIA, INC.,                                                   SUPREME COURT OF APPEALS
Employer Below, Petitioner                                                    OF WEST VIRGINIA




vs.)   No. 11-1212 (BOR Appeal No. 2045598)
                   (Claim No. 2008045376)

MODESTO ACOSTA,
Claimant Below, Respondent


                             MEMORANDUM DECISION

       Petitioner Pilgrim’s Pride Corporation, by Stephen Mathias, its attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. Modesto Acosta, by
Robert Stultz, his attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated July 28, 2011, in which
the Board affirmed a January 18, 2011, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges reversed the claims administrator’s August 18, 2010, decision
denying Mr. Acosta’s request to reopen his claim for further consideration of 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. Acosta suffered a crush-type injury to his left leg on May 28, 2008, and the claim
was held compensable. His injury was initially diagnosed as a contusion, but the record indicates
that he later developed reflex sympathetic dystrophy of the left lower extremity. Following the
aggravation of his compensable injury, he was granted temporary total disability benefits from
August 31, 2009, through September 2, 2009. In its January 18, 2011, Order reversing the
August 18, 2010, claims administrator’s decision, the Office of Judges held that Mr. Acosta
remained temporarily and totally disabled until March 5, 2010, and therefore awarded him
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temporary total disability benefits from September 3, 2009, through March 5, 2010. The Board
of Review affirmed the reasoning and conclusions of the Office of Judges. Pilgrim’s Pride
Corporation disputes this finding and asserts that the evidence of record demonstrates that Mr.
Acosta was not temporarily and totally disabled beyond September 2, 2009.

       The Office of Judges found that the issue in this case is not whether the claim should be
reopened for temporary total disability benefits, but whether Mr. Acosta remained temporarily
and totally disabled beyond September 2, 2009. West Virginia Code § 23-4-7a (2005) states that
temporary total disability benefits are not paid 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 Mr. Acosta’s reopening application persuasively shows that he
was unable to work until March 5, 2010, due to pain and swelling with increased activity. The
Board of Review reached the same reasoned conclusions in its decision of July 28, 2011.

        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: October 21, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum

DISSENTING:
Justice Robin J. Davis
Justice Allen H. Loughry II




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