                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS
                                                                                    FILED
LLOYD A. DUNBAR,                                                                 October 4, 2013
                                                                             RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                 SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

vs.)   No. 12-0003	 (BOR Appeal No. 2046008)
                    (Claim No. 2010120239)

PATRIOT COAL CORPORATION,
Employer Below, Respondent


                              MEMORANDUM DECISION
      Petitioner Lloyd A. Dunbar, by Michael E. Froble, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review.

        This appeal arises from the Board of Review’s Final Order dated November 28, 2011, in
which the Board affirmed an April 27, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s March 2, 2010,
decision denying the reopening of 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.

        Mr. Dunbar worked for Patriot Coal Corporation as a shuttle car operator. On December
18, 2009, Mr. Dunbar was operating a shuttle car when he allegedly injured his lower back due
to the car hitting a hole and bouncing him. The claim was held compensable for lumbar sprain.
On February 16, 2010, Dr. Zahir noted that Mr. Dunbar’s lower back pain had improved but was
persistent, and that he was totally disabled because of his heart condition and three heart attacks.
On July 22, 2010, Dr. Jafary stated that Mr. Dunbar was originally taken off work on December
28, 2009, for the work-related injury, but on January 7, 2010, he recommended Mr. Dunbar
remain off work due to his heart condition. On April 14, 2011, Dr. Mukkamala concluded that
Mr. Dunbar had reached maximum medical improvement and was able to return to work at a
light duty level.
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       The Office of Judges affirmed the claims administrator’s decision, and held that Mr.
Dunbar was not temporarily and totally disabled as a result of his compensable injury. Mr.
Dunbar disagrees and asserts that the Board of Review was plainly wrong in closing the claim
for temporary total disability benefits because Dr. Zahir knows his condition best and still
intends for him to continue having physical therapy.

        The Office of Judges determined that Mr. Dunbar’s denial of prior back pain is
inaccurate, and that there is medical evidence from Dr. Jafary to establish treatment for chronic
low back pain from March 2, 2009, through December 14, 2009. The Office of Judges stated that
Dr. Zahir may not have known of Mr. Dunbar’s chronic back pain before the compensable injury
since he did not mark on the Report of Occupational Injury that Mr. Dunbar had a history of
back pain. Dr. Jafary took Mr. Dunbar off work initially for his back pain but subsequently took
him off work for his heart condition. Dr. Zahir also noted that Mr. Dunbar’s back pain was
improving, but he was totally disabled because of his heart attacks. The Office of Judges
concluded that Mr. Dunbar clearly was treated for back pain prior to the compensable injury of
December 18, 2009, and therefore, the claim for temporary total disability benefits will remain
closed. The Board of Review reached the same reasoned conclusions in its decision of November
28, 2011. 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: October 4, 2013

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

DISSENTING:
Chief Justice Brent D. Benjamin




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