                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                  FILED
                                                                                  October 26, 2016
                                                                               RORY L. PERRY II, CLERK
MICHAEL A. HICKS,                                                            SUPREME COURT OF APPEALS
Claimant Below, Petitioner                                                       OF WEST VIRGINIA



vs.)   No. 15-1082 (BOR Appeal No. 2050380)
                   (Claim No. 2013004203)

OILFIELD TRUCKING SOLUTIONS,
Employer Below, Respondent


                              MEMORANDUM DECISION
      Petitioner Michael A. Hicks, by Robert L. Stultz, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Oilfield Trucking Solutions, by
Matthew L. Williams, its attorney, filed a timely response

       This appeal arises from the Board of Review’s Final Order dated October 14, 2015, in
which the Board affirmed a March 31, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 24, 2014,
decision to deny the request to reopen 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 that the Board of Review’s decision is in clear violation of a statutory
provision. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the Rules
of Appellate Procedure and is appropriate for a memorandum decision rather than an opinion.

        Mr. Hicks, a water truck driver for Oilfield Trucking Solutions, was maneuvering a hose
on July 4, 2012, when he felt a sharp pull in his abdomen. It was later discovered that he
developed an umbilical hernia. He applied for benefits and his claim was held compensable by
the claims administrator for an umbilical hernia on August 30, 2012. The claims administrator
determined that Mr. Hicks was ineligible for temporary total disability benefits because he did
not initially introduce sufficient evidence showing he was unable to work.

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        Mr. Hicks was primarily treated by Ronald Pearson, M.D., for his hernia and initially was
not a candidate for surgery. Mr. Hicks also had consultations with Marc Costa, M.D., and Kessa
D. Thorpe, PA-C. Ms. Thorpe stated that Mr. Hicks did not ask for temporary total disability
benefits and had worked since the day of his injury. She noted that the only day of work he
missed was the date he was initially examined. On December 6, 2012, office notes from Ms.
Thorpe showed that she examined Mr. Hicks for non-work-related conditions. Mr. Hicks advised
her that he had reinjured his stomach several times from wrestling cattle. Ms. Thorpe advised
him to decrease the amount of lifting, pulling on cattle, and moving bales of hay. Eventually, it
became apparent that Mr. Hicks required surgery. On July 21, 2014, the claims administrator
granted the request for surgery.

        On September 2, 2014, Mr. Hicks requested that he be granted temporary total disability
benefits from August 1, 2012, through April 1, 2013, and from June 15, 2013, until January 15,
2015. Then on September 5, 2014, Mr. Hicks underwent a successful surgery. The claims
administrator denied Mr. Hicks’s request for temporary total disability benefits because it
determined that he retired from his job.

        The Office of Judges determined that the claims administrator properly denied temporary
total disability benefits for the periods of August 1, 2012, through April 1, 2013, and from June
15, 2013, through January 15, 2015. The Office of Judges addressed Mr. Hicks’s assertion that
he was forced to retire because of the compensable injury. The Office of Judges found that Mr.
Hicks indicated in his reopening application dated September 2, 2014, that he retired and began
receiving retirement Social Security benefits on August 1, 2012. The Office of Judges cited to
West Virginia Code of State Rules § 85-1-5.2 (2009) which provides:

              If an individual retires, as long as the individual remains retired, he
              or she is disqualified from receiving temporary total disability
              indemnity benefits as a result of an injury received from the place
              of employment from which he or she retired, unless the application
              for benefits was received prior to his or her retirement.

The Office of Judges found that although Mr. Hicks now states in his latest application dated
September 2, 2014, that he was forced to retire, there was no such allegation in a previous
application dated December 29, 2012. The Office of Judges also noted that the December 29,
2012, application was submitted several months after he had retired. The Office of Judges found
that the assertion of a forced retirement, which was made more than two years after his
retirement, was not persuasive. The Board of Review adopted the findings of the Office of
Judges and affirmed its Order.

        After review, we find that the decision should be remanded to the Office of Judges for
further analysis under West Virginia Code of State Rules § 85-1-5.2. Mr. Hicks testified that he
returned to work on April 19, 2013, and his claim reopening application indicated that he had a
current employer. Because the Office of Judges did not discuss these factors pursuant to West
Virginia Code of State Rules § 85-1-5.2, the case has not been fully considered.

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        For the foregoing reasons, we find that the decision of the Board of Review is in clear
violation of a statutory provision. Therefore, the claim is remanded with instructions to issue a
decision that fully examines the impact of West Virginia Code of State Rules § 85-1-5.2.


                                                                       Reversed and Remanded.


ISSUED: October 26, 2016

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




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