                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             February 4, 2016
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
RODNEY A. HAMBY,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 15-0251 (BOR Appeal No. 2049816)
                   (Claim No. 2013025206)

GENESIS RAIL SERVICES, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Rodney A. Hamby, by Stephen P. New, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Genesis Rail Services, Inc., by
Marion E. Ray, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated February 24, 2015, in
which the Board affirmed a September 16, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 30, 2013,
decision denying a request for a vocational rehabilitation referral. 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. Hamby, a truck driver, injured his shoulder and cervical spine in the course of his
employment on March 18, 2013, when he ran his truck into an embankment. Mr. Hamby was
treated for the injury by Robert Kropac, M.D. Dr. Kropac diagnosed cervicodorsal
musculoligamentous strain superimposed on degenerative disc disease and degenerative arthritis
with cervical spinal stenosis and upper extremity radicular component as well as a contusion of
the left shoulder with impingement syndrome associated with rotator cuff tendonitis. He opined
that Mr. Hamby was temporarily and totally disabled until July 15, 2013, when he was released
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to return to modified duty. Genesis Rail Services, Inc., stated in a letter on May 14, 2013, that it
would offer Mr. Hamby light duty work structured around his restrictions. On October 8, 2013,
Mr. Hamby was released to return to full duty work.

       Two independent medical evaluations were performed by Joseph Grady, M.D. On June
20, 2013, Dr. Grady listed the diagnoses of cervical myofascial strain superimposed on
multilevel degenerative changes and left shoulder myofascial strain superimposed on
degenerative changes. He opined that Mr. Hamby was not at maximum medical improvement
and needed steroid injections and physical therapy. On September 26, 2013, Dr. Grady found
that Mr. Hamby had reached maximum medical improvement and had 5% impairment for his
cervical spine. Mr. Hamby also underwent a functional capacity evaluation on July 2, 2013, in
which it was determined that he could work at the sedentary level.

        The claims administrator denied a request for a vocational rehabilitation referral on
October 20, 2013. It stated that Mr. Hamby was released to return to full duty work by Dr.
Kropac on October 8, 2013. It further stated that Genesis Rail Services, Inc., accommodated his
light duty restrictions, and when he was released to return to full duty, they did not have any
work available. The Office of Judges affirmed the decision in its September 16, 2014, Order. It
stated that West Virginia Code § 23-4-9 (2005) provides for vocational rehabilitation services to
assist workers in returning to suitable gainful employment. The Office of Judges concluded that
the preponderance of the evidence shows that Mr. Hamby is able to return to suitable gainful
employment. Dr. Grady evaluated him on September 26, 2013, and found he had reached
maximum medical improvement. Shortly thereafter, on October 8, 2013, Mr. Hamby was seen
by his treating physician, Dr. Kropac. Dr. Kropac found at that time that he could return to full
duty work. The Office of Judges found no indication in any of Dr. Kropac’s reports that Mr.
Hamby is in need of vocational rehabilitation. The Office of Judges also found nothing to
contradict Genesis Rail Services, Inc.,’s assertion that it had no jobs available. The Board of
Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed
its Order on February 24, 2015.

       On appeal, Mr. Hamby argues that he was laid off because he was released to return to
work with restrictions that Genesis Rail Services, Inc., could not accommodate, and since he
cannot return to his prior job, he asserts he is entitled to a vocational rehabilitation referral.
Genesis Rail Services, Inc., argues that it is not responsible for retraining an able-bodied
employee or creating a job for him when his skills are no longer needed. It asserts that Mr.
Hamby’s injury had no bearing on its need to downsize and that he is capable of finding another
job doing comparable work so vocational services are not necessary.

        After review, we agree with the reasoning of the Office of Judges and the conclusions of
the Board of Review. The record shows that Mr. Hamby was injured, returned to work on light
duty, and when he was released to return to full duty, there were no jobs available. His treating
physician’s notes state that he is fully capable of performing his work duties. There is no
evidence in the record that Mr. Hamby requires vocational rehabilitation in order to find suitable
gainful employment.

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        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: February 4, 2016

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




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