                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
MURRAY AMERICAN ENERGY, INC.,                                                       May 21, 2018
                                                                             EDYTHE NASH GAISER, CLERK
Employer Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs.)   No. 18-0056 (BOR Appeal No. 2015028184)
                    (Claim No. 2052110)

JOHN VINESKY, 

Claimant Below, Respondent 



                              MEMORANDUM DECISION
       Petitioner, Murray American Energy, Inc., by, Denise D. Pentino and Aimee M. Stern, its
attorneys, appeals the decision of the West Virginia Workers’ Compensation Board of Review.
John Vinesky, by William C. Gallagher, his attorney, filed a timely response.

       The issue on appeal is vocational rehabilitation. On February 14, 2017, the claims
administrator closed the claim for vocational rehabilitation services and benefits. The Office of
Judges reversed the claims administrator in its July 24, 2017, Order. The Order was affirmed by
the Board of Review on December 28, 2017. 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 that the Board of Review’s decision is based upon material
misstatements and mischaracterizations of the evidentiary record. This case satisfies the “limited
circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate
for a memorandum decision rather than an opinion.

       Mr. Vinesky, a rib pinner, injured his left knee on April 13, 2015, when he injured his left
knee after stepping on a rock in the mine. He was diagnosed with a knee sprain. The claims
administrator held the claim compensable for a sprain of an unspecified site of the knee and leg
on May 15, 2015. On June 19, 2015, Mr. Vinesky underwent a left knee arthroscopic partial
medial meniscectomy. He was released to return to full duty work on August 10, 2015.

        Mr. Vinesky worked for one day before seeking treatment for his left knee, which he
injured after stepping on a pile of loose coal. Mr. Vinesky was diagnosed with left knee pain due
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to possible sprain. On December 9, 2015, Mr. Vinesky underwent a left knee arthroscopic lateral
release. The pre-operative diagnosis was possible recurrent medial meniscus tear and lateral
patellar compression syndrome. The post-operative diagnosis was left knee stable lateral
meniscus tear and lateral patellar compression syndrome. Mr. Vinesky underwent a functional
capacity evaluation on April 5, 2016, which showed he could perform light physical demand
level jobs. His physical limitations presented a barrier to return to work unless modifications
could be made. Mr. Vinesky had some minimal range of motion and strength deficits in the left
knee but was mainly limited by pain with weight bearing activities. Mr. Vinesky’s permanent
work restrictions included occasional lifting and carrying up to twenty pounds; sitting up to eight
hours per day; standing, walking, or driving up to one hour per day; and no climbing, crawling,
or squatting.

        Erin Saniga, M.Ed., CRC, LPC, performed a vocational evaluation on July 11, 2016. She
noted Mr. Vinesky complained of severe swelling of the left knee, severe left knee pain, and
difficulty going up and down steps. Mr. Vinesky wore a brace and walked with one crutch. He
had been advised to wean himself off of the crutch, but had not been able to do so. Mr. Vinesky
reported that he had taken the civil service test for a maintenance position and that he had
applied for front desk jobs at local hotels. Ms. Saniga concluded that Mr. Vinesky needed to
explore his ability to transition to sedentary work. Mr. Vinesky expressed an interest in obtaining
unemployment benefits and was told he could not receive rehabilitation benefits and
unemployment benefits at the same time. He also expressed an interest in obtaining a CDL. Ms.
Saniga advised this was beyond the restrictions imposed. She recommended a period of
concurrent job retention and vocational exploration during which Mr. Vinesky could find jobs in
the local labor market. She explained that he would be required to participate eight hours a day in
vocational rehabilitation activities, as he had been released to return to work for eight hours a
day.

        The rehabilitation plan developed by Ms. Saniga included thirty days of vocational
exploration, job retention, and rehabilitation temporary total disability. Mr. Vinesky started
computer training and participated in thirty days of job search. The vocational plan was extended
in December of 2016 and January of 2017. In a January 12, 2017, report, Ms. Saniga noted that
Mr. Vinesky had applied for a number of positions for which he was not qualified or that were
not within his physical capabilities. These included a help desk position, a business manager
position, cardiology technical assistant, and dietary aide. On February 9, 2017, Ms. Saniga
recommended no further vocational rehabilitation services. On February 14, 2017, the claims
administrator closed the claim for vocational rehabilitation benefits as no evidence had been
received to substantiate the continuation of benefits and no further vocational rehabilitation had
been recommended.

        Mr. Vinesky testified via deposition on April 21, 2017, that he understood the
rehabilitation plan and worked with Ms. Saniga on finding jobs. He was required to look for
jobs, which he did in person and online. He was offered a job earning $2.00 per hour, which Ms.
Saniga said was not acceptable due to the low wage. She also advised him that many of the jobs
for which he was applying were not within his physical restrictions. Mr. Vinesky also bid on jobs
at the mining company through the union, but due to his low seniority he was not able to get one
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of those jobs. The mining jobs usually were not jobs that were within his physical restrictions.
He called some of the employers for jobs he applied to outside of the mines to see if the job was
within his physical restrictions. He applied for jobs for which he thought he could suffer through
the pain, even if they were outside of his physical capabilities. He was never really given a firm
job offer. He requested authorization through the rehabilitation plan to enroll in a Microsoft
Applications course at West Virginia Northern Community College.

        On May 2, 2017, Ms. Saniga testified via deposition. She had identified 210 occupations
that would be appropriate for Mr. Vinesky in relation to his education, background, work
experience, and physical restrictions. Mr. Vinesky told her he had no computer skills. Therefore,
she recommended Mr. Vinesky take a basic computer course to get him familiar with the
keyboard and to enable him to become familiar with the use of the computer and its programs.
She thought this would benefit him as he searched for jobs but also with the jobs themselves. Mr.
Vinesky participated in the job exploration portion of his plan from July to November. This is
the portion of the program that generally lasts thirty days. It lasted longer in his case in order to
allow time for Mr. Vinesky to take the basic computer class. In her opinion, Mr. Vinesky
obtained the basic computer skills he needed for employment from this class. Mr. Vinesky then
participated in the job search portion of the plan for ninety days. Ms. Saniga had concerns about
the type of jobs for which Mr. Vinesky applied as they were too physically demanding. There
were also some position for which he was not qualified in terms of education and training. Ms.
Saniga opined that the Microsoft Applications class Mr. Vinesky wanted to take would not alter
his employability. This course was designed toward facilitating employment in a business office
environment. She also opined that the way he presented himself to employers was negatively
impacting his ability to obtain a job.

        In its July 24, 2017, Order, the Office of Judges found the closure of the claim for
vocational benefits was not appropriate as no evidence had been submitted to indicate Mr.
Vinesky was not cooperating, was not participating, or failed to make satisfactory progress
toward the completion of his plan. It also found Ms. Saniga’s opinion that Mr. Vinesky was able
to seek and apply for appropriate available employment on his own did not mean that his benefits
should be terminated and was inconsistent with the hierarchy of rehabilitation services. The goal
of the rehabilitation services was to return Mr. Vinesky to employment. The Office of Judges
determined that the closure of the claim penalized the “cooperating and compliant” claimant who
was seeking employment but had not found it yet. It also determined that “it seemed logical that
rehabilitation services would continue to advise and help Mr. Vinesky in finding appropriate jobs
to apply for until he is employed; or if no job is offered, to move onto the next point of the
Hierarchy which would be employment by a new employer with on the job training”. Therefore,
the Office of Judges reversed the claims administrator’s decision and reinstated the vocational
rehabilitation services and benefits. The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its Order on December 28, 2017.

        After review, we disagree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The claims administrator closed the claim for vocational
benefits as no evidence had been received to substantiate the continuation of benefits and no
further vocational rehabilitation had been recommended. However, West Virginia Code of State
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Rules § 85-15-4 establishes seven priorities that must be followed in providing rehabilitation
services. The evidentiary record does not contain any findings regarding where Mr. Vinesky was
placed on the hierarchy at the conclusion of his rehabilitation services, or why Ms. Saniga
recommended ending the services. Additionally, the Office of Judges reasoning that
rehabilitation services should be continued without any findings of fact in relation to the
hierarchy was not proper.

       For the foregoing reasons, we find that the decision of the Board of Review is based upon
material misstatements and mischaracterizations of the evidentiary record. Therefore, the
decision of the Board of Review is reversed and remanded with instructions for the Office of
Judges to determine whether Mr. Vinesky is entitled to additional vocational rehabilitation using
the seven-step hierarchy of vocational rehabilitation.


                                                                       Reversed and Remanded.

ISSUED: May 21, 2018

CONCURRED IN BY:
Chief Justice Margaret L. Workman 

Justice Robin J. Davis 

Justice Allen H. Loughry II 

Justice Elizabeth D. Walker 


DISSENTING: 

Justice Menis E. Ketchum 





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