                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
REX ASHLEY,                                                                       May 7, 2015
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 13-0459 (BOR Appeal No. 2047847)
                    (Claim No. 2012018786)


EASTERN ASSOCIATED COAL, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Rex Ashley, pro se, appeals the decision of the West Virginia Workers’
Compensation Board of Review. Eastern Associated Coal, LLC, by Henry C. Bowen, its
attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated April 3, 2013, in which
the Board affirmed an October 23, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s January 17, 2012, decision
to not grant 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. Ashley injured his lower back on September 9, 2011, when he was moving concrete
blocks at work. Mr. Ashley reported to Fairmont General Hospital emergency room on
September 11, 2011, with complaints of lower back pain. Mr. Ashley applied for workers’
compensation benefits. On January 17, 2012, the claims administrator held the claim
compensable for a lumbar strain, but further directed that medical treatment be covered only for
the date of September 11, 2011. The claims administrator denied Mr. Ashley’s request for
temporary total disability benefits due to the determination that Mr. Ashley was temporarily and

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totally disabled secondary to the compensable injury for less than four days. Mr. Ashley
protested the denial of temporary total disability benefits.

        The Office of Judges determined that Mr. Ashley failed to prove that his lumbar strain
resulted in any disability lasting longer than three days. In arriving at its decision, the Office of
Judges noted that Mr. Ashley had sought treatment from approximately seven different medical
providers for the same injury. The first medical provider, Fairmont General Hospital, diagnosed
him with a chronic lower back pain and advised him he could return on the following day. Each
successive medical provider found that Mr. Ashley would not be disabled for more than three
days based upon the same injury. Mr. Ashley’s only evidence to support his temporary total
disability claim is treatment notes and work excuse forms from the seven different medical
providers. None of the work excuse forms provide detailed medical conclusions or any reasoning
behind the conclusions. Accordingly, the Office of Judges concluded that Mr. Ashley could not
prove his disability lasted more than three days, which is a requirement under West Virginia
Code § 23-4-5 (2003). The Board of Review adopted the findings of the Office of Judges and
affirmed its Order.

       We agree with the Office of Judges and the Board of Review. Mr. Ashley has failed to
prove that his compensable injury resulted in more than three days of disability. West Virginia
Code § 23-4-5 provides the following:

               If the period of disability does not last longer than three days from
               the day the employee leaves work as the result of the injury, no
               award shall be allowed, except the disbursements provided for in
               the two next preceding sections, but if the period of disability lasts
               longer than seven days from the day the employee leaves work as a
               result of the injury, an award shall be allowed for the first three
               days of such disability.

        Mr. Ashley did receive a multitude of work excuses from several different doctors from
September 23, 2011, through March 6, 2011. However, the evidence that Mr. Ashley has
presented is not sufficiently reliable to support his request for temporary total disability benefits.
The work excuse forms do not say that he was disabled for more than three days following his
injury.

        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: May 7, 2015

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

DISSENTING:
Justice Menis E. Ketchum




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