                             STATE OF WEST VIRGINIA


                          SUPREME COURT OF APPEALS
                                                                                    FILED
TERRY BENTLEY,                                                                    March 30, 2017
                                                                              RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

vs.)   No. 16-0319 (BOR Appeal No. 2050871)
                   (Claim No. 2014008949)


CONSOL OF KENTUCKY, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION

        Petitioner Terry Bentley, by Samuel F. Hanna, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Consol of Kentucky, Inc., by James W.
Heslep, its attorney, filed a timely response.
       This appeal arises from the Board of Review’s Final Order dated March 3, 2016, in which
the Board affirmed a September 24, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s November 4, 2014,
decision that closed the 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. Bentley, a heavy equipment mechanic for Consol of Kentucky, Inc., was working on
September 15, 2013, when his right forearm was pinned between his mechanic truck and the
front tire of a rock truck. He was treated at Charleston Area Medical Center and found to have a
fracture of the right radius and ulna. From the date of the injury through November 27, 2013, Mr.
Bentley underwent four surgeries to repair the fracture.
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        Prasadarao Mukkamala, M.D., performed an independent medical evaluation and his
report dated September 2, 2014, was introduced into evidence. Dr. Mukkamala opined that Mr.
Bentley was at maximum medical improvement and suffered from 29% whole person
impairment in relation to the compensable injury. In an addendum report dated September 9,
2014, Dr. Mukkamala stated that it was clear that Mr. Bentley could not return to his previous
occupation. Mr. Bentley’s right hand and upper extremity had lost significant function. With
only minimal function remaining, he was currently restricted to the sedentary physical demand
level. Dr. Mukkamala recommended that Mr. Bentley undergo vocational rehabilitation.

       On September 24, 2014, the claims administrator held the claim compensable for post-
traumatic stress disorder; fracture of shaft of radius, open; fracture of shaft of ulna, open; and
crushing injury of the forearm. On November 4, 2014, the claims administrator closed the claim
for temporary total disability benefits.

        On November 17, 2014, treatment records from Hilltop Primary Care authored by
Geraldine Hatfield, APRN, indicated that Mr. Bentley was complaining of weakness in the right
hand, low back pain, headaches, and flashbacks from the injury since the date of injury. She
opined that he suffered a crush injury to his entire body when his entire body was struck by
heavy equipment and crushed against the front tire of a large truck. She listed his diagnoses as
lumbago, neck pain, cervical disc disorder, and secondary hypertension. Ms. Hatfield completed
a diagnosis update request two days later in which she requested that the diagnoses identified in
her treatment note be added as compensable conditions of the claim.

       On September 24, 2013, the Office of Judges determined that a preponderance of
evidence supported closing the claim for temporary total disability benefits. The Office of Judges
found that Mr. Bentley may indeed continue to need treatment; however, any future treatment
will be attributable to a permanent disability as opposed to any temporary disability. The Office
of Judges found that there was not sufficient evidence to show that Mr. Bentley had not reached
maximum medical improvement. The Office of Judges noted that Dr. Mukkamala found him to
be at maximum medical improvement and suggested an impairment rating. The Board of Review
adopted the findings of the Office of Judges and affirmed its Order on March 3, 2016.

        After review, we agree with the Office of Judges and Board of Review. Pursuant to West
Virginia Code § 23-4-7a (2005), temporary total disability benefits are suspended once a
claimant has reached maximum medical improvement, has been released to return to work, or
has actually returned to work, whichever occurs first. In this case the evidence indicates that Mr.
Bentley reached his maximum medical improvement in relation to the compensable injury.
Because the evidence of record indicates it was proper to close the claim for temporary total
disability benefits, the Office of Judges and Board of Review are not in error and should be
affirmed.

        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.
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                                        Affirmed.

ISSUED: March 30, 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




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