                              STATE OF WEST VIRGINIA
                                                                                    FILED
                          SUPREME COURT OF APPEALS                               March 10, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
VIRA D. ROSE,                                                                  OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-0947 (BOR Appeal No. 2047004)
                   (Claim No. 2007215893)

AMFIRE, LLC,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Vira D. Rose, by Jerome J. McFadden, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Amfire, LLC, by Robert J. Busse, its
attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated July 17, 2012, in which
the Board affirmed a February 13, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s December 22, 2010,
decisions which denied a request for retroactive authorization for physical therapy and a 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 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.

        Ms. Rose, a belt man and fire boss, injured her left shoulder and knee in the course of her
employment when she tripped and fell down a flight of stairs. The claim was held compensable
for sprain of the neck; sprain of the knee and leg; and sprain of the shoulder and upper arm. In
his treatment note on September 10, 2007, Robert Kropac, M.D., diagnosed Ms. Rose with a
partial rotator cuff tear and a sprain of the left knee superimposed on degenerative changes. He

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recommended surgery to treat the shoulder condition. Ms. Rose declined to have surgery at that
time. She returned to work on February 26, 2008.

       Ms. Rose underwent an independent medical evaluation with Joseph Grady, M.D., on
March 18, 2008. He determined that she had reached maximum medical improvement for her
compensable knee and neck conditions. He noted that a rating for the left shoulder should be
withheld pending an MRI and reevaluation. Ms. Rose injured her back on June 23, 2009, and has
not returned to any type of employment since the injury. The claims administrator denied a
request on December 22, 2010, to reopen the claim for temporary total disability benefits based
upon the fact that Ms. Rose was receiving Social Security retirement benefits.

        The Office of Judges affirmed the decision of the claims administrator in its February 13,
2012, Order. Ms. Rose argued that though she is currently collecting Social Security retirement
benefits, she has not retired, nor was that her intent. The Office of Judges determined that West
Virginia Code of State Rules § 85-1-5.2 (2006), provides that if an individual retires he or she is
disqualified from receiving temporary total disability benefits unless the application for benefits
was filed prior to retirement. He or she is also barred from reopening a claim for temporary total
disability benefits. The Office of Judges concluded that Ms. Rose had in fact retired and was
therefore ineligible for temporary total disability benefits.

        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its July 17, 2012, decision. However, the Board of Review
declined to adopt the Office of Judges’ analysis regarding retirement. It found that Ms. Rose
injured her shoulder in January of 2007. She returned to full duty in February of 2008. She
injured her back on June 23, 2009, and failed to return to work following that injury. The Board
of Review ultimately concluded that Ms. Rose failed to meet her burden of proof to establish that
she is entitled to a reopening of her claim for temporary total disability benefits.

        This Court agrees with the reasoning and conclusions of the Board of Review. Ms. Rose
returned to work on full duty following her compensable shoulder injury. She continued to work
until she injured her back on June 23, 2009. After that injury, she did not return to any type of
employment. Because the decision of the Board of Review is supported by the evidentiary
record, it is hereby affirmed.

        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: March 10, 2014



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




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