                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
LLOYD E. HARRELL JR,                                                             April 18, 2014
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.) No. 12-1080	 (BOR Appeal No. 2047075)
                  (Claim No. 2010113496)

WHITE CONSTRUCTION, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Lloyd E. Harrell Jr., by Reginald D. Henry, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. White Construction, Inc., by
Michael N. Watson, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated August 22, 2012, in
which the Board affirmed a March 29, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s June 29, 2011,
decision denying Mr. Harrell’s request for a reopening of this claim on a temporary total
disability basis. 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. Harrell was employed as an iron worker for White Construction, Inc. On October 8,
2009, he sustained an injury to both knees when a windmill blade overturned. Greenbrier Valley
Medical Center released Mr. Harrell to return to work on the day of his injury and he continued
to work over forty hours a week until his employment with White Construction, Inc., ended on
October 28, 2009. Mr. Harrell’s claim was held compensable for bilateral knee contusions on a
no lost time basis. Later, right meniscus tear and a left meniscus tear were added as compensable
conditions. S. Brett Whitfield, M.D., performed a surgical arthroscopy of Mr. Harrell’s left knee
with debridement of the lateral and medial meniscus tears on June 15, 2011. Dr. Whitfield
performed a surgical arthroscopy of Mr. Harrell’s right knee with debridement of the medial and
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lateral meniscus tear on September 7, 2011. Mr. Harrell filed a reopening application requesting
temporary total disability benefits due to his knee surgery. The claims administrator denied his
request for a reopening of the claim on a temporary total disability basis.

        The Office of Judges reversed the claims administrator’s Order and held that the
preponderance of the evidence established that Mr. Harrell’s condition had progressed, that he
was entitled to a reopening on a temporary total disability basis, and that he was temporarily and
totally disabled beginning on June 15, 2011. The Board of Review affirmed the Office of Judges’
Order. Mr. Harrell disagrees and asserts that probative evidence in the record establishes that he
is entitled to additional temporary total disability benefits beginning May 6, 2011. White
Construction, Inc., maintains that the Office of Judges properly concluded that there was no
evidence that Mr. Harrell was temporarily totally disabled prior to his surgery on June 15, 2011.

        The Office of Judges determined that the evidence of record established that Mr. Harrell
had shown his condition had progressed to the point where Dr. Whitfield determined that he
needed surgery. The Office of Judges found that Dr. Whitfield performed the surgeries due to
Mr. Harrell’s meniscus tears, which are compensable conditions and therefore, entitle Mr.
Harrell to temporary total disability benefits after the surgery. The Office of Judges stated that
Mr. Harrell’s request for temporary total disability benefits before his surgery was not supported
by persuasive evidence that he was unable to work during this time period. The Office of Judges
determined that Mr. Harrell was released to return to work by the hospital on the day of his
injury and that he worked forty plus hours a week until his job ended. The Office of Judges
found that Mr. Harrell’s testimony and the letter from the United Steel Workers Union was not
persuasive evidence to establish that Mr. Harrell was temporarily and totally disabled up until his
surgery. The Office of Judges held that the preponderance of the evidence established Mr.
Harrell’s condition had progressed, that Mr. Harrell was entitled to a reopening of his claim on a
temporary total disability basis, and that Mr. Harrell was temporarily and totally disabled
beginning on June 15, 2011. The Board of Review reached the same reasoned conclusions in its
decision of August 22, 2012. We agree with the reasoning and conclusions of the Board of
Review.

        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: April 18, 2014

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


DISSENTING:
Justice Margaret L. Workman




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