                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             January 15, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
RICKY WARD,                                                                   OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0234	 (BOR Appeal No. 2048836)
                   (Claim No. 2012031245)

ARCELORMITTAL USA XMB PRINCETON DIVISION,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Ricky Ward, by Stephen New, his attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. Arcelormittal USA XMB Princeton
Division, by Michael Kawash, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated February 12, 2014, in
which the Board affirmed a September 27, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 8, 2012,
decision closing Mr. Ward’s 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. Ward injured his cervical spine on March 22, 2012, when he was struck on the back
of the neck by a mine belt structure and the claim was subsequently held compensable.
Following the compensable injury, Mr. Ward began treating with Rebekah Austin, M.D., who
opined that he is unable to return to work in his pre-injury position of underground coal miner
and recommended a course of conservative treatment aimed at helping him reach maximum
medical improvement.

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        On November 14, 2012, J. Travis Burt, M.D., performed an independent medical
evaluation and opined that the treatment Mr. Ward has received to date has yielded no
meaningful improvement. He determined that Mr. Ward had reached maximum medical
improvement and opined that there is no compelling reason not to release Mr. Ward to return to
work. On December 8, 2012, the claims administrator closed Mr. Ward’s claim for temporary
total disability benefits.

        On June 3, 2013, Dr. Austin was deposed. She testified that although Mr. Ward cannot
return to his pre-injury position as an underground coal miner, she would not classify him as
totally disabled and feels that he is capable of performing at the light physical demand level. She
further testified that it is her understanding that Mr. Ward has returned to light duty employment
with Arcelormittal USA, and that his duties include tracking underground coal miners via
computer screen.

        In its Order affirming the December 8, 2012, claims administrator’s decision, the Office
of Judges held that Mr. Ward is no longer entitled to temporary total disability benefits because
the evidence of record demonstrates that he has reached maximum medical improvement and has
returned to work. The Board of Review affirmed the reasoning and conclusions of the Office of
Judges in its decision dated February 12, 2014. On appeal, Mr. Ward asserts that the evidence of
record demonstrates that he is entitled to additional temporary total disability benefits.

        West Virginia Code § 23-4-7a (2005) states 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. Dr. Burt determined that Mr. Ward had
reached maximum medical improvement on November 14, 2012, approximately one month
before the claims administrator’s closure of the claim for temporary total disability benefits. Dr.
Burt’s determination that Mr. Ward has reached maximum medical improvement was confirmed
by a subsequent independent medical evaluation performed by Bruce Guberman, M.D.
Moreover, Mr. Ward’s own treating physician, Dr. Austin, testified that he is not totally disabled.
As Mr. Ward was determined to have reached maximum medical improvement prior to the
claims administrator’s closure of the claim for temporary total disability benefits, he is not
entitled to further temporary total disability benefits pursuant to West Virginia Code § 23-4-7a.
The provisions of West Virginia Code § 23-4-7a further bar Mr. Ward from receiving additional
temporary total disability benefits as he has actually returned to work, albeit in a different
position, with his pre-injury employer.

        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: January 15, 2015

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




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