                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                                 March 6, 2013

                                                                            RORY L. PERRY II, CLERK

DAVID WALKER,                                                             SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-0766	 (BOR Appeal No. 2045140)
                   (Claim No. 2010099033)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

MAXIM CRANE WORKS,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner David Walker, by Patrick Maroney, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Maxim Crane Works, by Denise
Pentino and Aimee Stern, its attorneys, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated April 6, 2011, in which
the Board affirmed a September 14, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 3, 2009,
decision closing 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.

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        Mr. Walker injured his lower back on July 9, 2009, while employed as a general laborer
with Maxim Crane Works. On July 15, 2009, the claim was held compensable for low back
strain, and on August 3, 2009, the claims administrator closed the claim for temporary total
disability benefits based on a finding that medical evidence had not been received demonstrating
that Mr. Walker continued to be temporarily and totally disabled, and also based on a finding that
Mr. Walker retired on July 29, 2009. In its Order affirming the August 3, 2009, claims
administrator’s decision, the Office of Judges held that the claim was properly closed for
temporary total disability benefits because Mr. Walker’s voluntary retirement, effective August
1, 2009, is not a result of the compensable injury. Mr. Walker disputes this finding and asserts
that he retired as a result of multiple work-related injuries, and therefore is entitled to temporary
total disability benefits until October 13, 2009, at which time Dr. Mukkamala found him to be at
maximum medical improvement.

       The Office of Judges relied on West Virginia Code of State Rules § 85-1-5.2 (2009),
which states:
              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. An
              individual who has retired is also barred from reopening for
              temporary total disability indemnity benefits an earlier claim filed
              in connection with an injury received at the place of employment
              from which he or she retired. This section does not preclude
              payments of benefits otherwise due a claimant if the retiree has
              returned to employment and suffers a compensable injury or
              payment of benefits if the compensable injury causes the
              individual to retire.

        The Office of Judges found that Mr. Walker’s deposition testimony shows that he had
planned his retirement before the July 9, 2009, injury, based on his testimony that he told Dr.
Shaffer, his treating physician, about his planned retirement before the July 9, 2009, injury. The
Office of Judges further found that Mr. Walker alleges that he sustained another work-related
injury to his lower back on June 25, 2009. However, in a July 8, 2009, treatment note Dr. Shaffer
specifically states that Mr. Walker had not sustained a recent injury. Additionally, two affidavits
from Maxim Crane Works employees state that Mr. Walker retired on July 29, 2009, and in no
way indicated that he was retiring as a result of a work-related injury. The Board of Review
agreed with the Office of Judges’ reasoning and affirmed its conclusion that the claim was
properly closed for temporary total disability benefits because Mr. Walker’s retirement was not
precipitated by the compensable injury. 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

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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: March 6, 2013

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

DISSENTING:
Justice Menis E. Ketchum




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