                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS                                    FILED
                                                                                    September 3, 2019
JOHN STOUT II,                                                                  EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
Claimant Below, Petitioner                                                          OF WEST VIRGINIA



vs.)   No. 18-0835 (BOR Appeal No. 2052915)
                   (Claim No. 2018002461)

ADVANTAGE SOLUTIONS,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner John Stout II, by Counsel William Gallagher, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). Advantage Solutions,
by Counsel Noah Barnes, filed a timely response.

        The issue on appeal is whether or not Mr. Stout is entitled to temporary total disability
benefits in this claim. On March 1, 2018, the claims administrator denied Mr. Stout’s request for
temporary total disability benefits from February 15, 2018, through April 23, 2018. In a separate
Order dated March 1, 2018, the claims administrator closed the claim for temporary total disability
benefits. In its Order, the Workers’ Compensation Office of Judges (“Office of Judges”) reversed
the claims administrator’s Orders. The Office of Judges awarded temporary total disability benefits
from September 29, 2017, through October 27, 2017, and thereafter as substantiated by proper
medical evidence. The Office of Judges also reversed the claims administrator’s decision to close
the claim for the payment of temporary total disability benefits. This appeal arises from the Board
of Review’s Final Order dated August 28, 2018, in which the Board reversed and vacated the May
9, 2018, Order of the Office of Judges, and reinstated the claims administrator’s two orders dated
March 1, 2018.

        The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. 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.


                                                 1
       Mr. Stout previously worked for Advantage Solutions as a retail sales representative. He
was injured at work on July 19, 2017, when he was lifting a large bag of cat litter while working
at Wal-Mart. A plastic strap broke on the box and the box fell on Mr. Stout’s right foot causing
pain, swelling, bruising, and causing him to walk with a limp. He filed an Employees’ and
Physicians’ Report of Injury on August 2, 2017. The physician’s section of the form was completed
by Timothy Wilson, D.O., who diagnosed Mr. Stout with a nondisplaced fracture of the distal
phalanx of the right great toe. Dr. Wilson checked the box indicating that the injury was an
occupational injury and he referred Mr. Stout to Michael Kovalick, D.O.

        Mr. Stout treated with Dr. Kovalick for his injury. Dr. Kovalick thereafter completed a
Physician’s Report of Work Ability form dated August 9, 2017, indicating that he could return to
work with restrictions from August 10, 2017, through August 31, 2017. Dr. Kovalick limited Mr.
Stout’s activity to be mostly seated duty with occasional walking or standing. Mr. Stout was also
ordered to rest his foot as much as possible. Advantage Solutions issued a letter dated August 11,
2017, indicating that Mr. Stout was approved for a leave of absence from August 9, 2017, through
August 31, 2017. The claims administrator held the claim compensable for nondisplaced fracture
of the distal phalanx of the right great toe, sequela by Order dated August 15, 2017.

         Mr. Stout was seen at East Ohio Regional Medical Center on September 7, 2017, by Dr.
Kovalick for a follow-up examination. Mr. Stout reported that he was still having pain and felt
unsteady when climbing up or going down stairs. Dr. Kovalick stated that he was able to palpate
the great toe without much difficulty and that Mr. Stout was able to flex and extend his toe. After
reviewing the initial x-rays, Dr. Kovalick noted that he was having a difficult time seeing any
fracture of the right great toe. Dr. Kovalick believed that it was not definite as to whether Mr. Stout
ever had a nondisplaced fracture and, if so, it would have healed within the six weeks since the
injury. Dr. Kovalick released Mr. Stout to return to work as of September 11, 2017, with the
restrictions that he should not run, jump, squat, or climb.

        Mr. Stout returned to work on September 14, 2017. The claims administrator suspended
temporary total disability benefits on September 14, 2017, and noted that he had been released to
return to work. Mr. Stout was able to work for several weeks. However, he was terminated on
September 29, 2017, for violation of the employer’s attendance policy.

        A day before Mr. Stout’s termination, he returned to Dr. Kovalick complaining of pain
between his first and second metatarsal on his right foot, as well as some pain along the plantar
surface of his foot. He also complained that his ankle felt unsteady. Dr. Kovalick noted no bruising
or discoloration of Mr. Stout’s foot. Dr. Kovalick also filled out a Physician’s Report of Work
Ability form and marked the box that Mr. Stout could return to work with restrictions from
September 28, 2017, through October 27, 2017. Dr. Kovalick referred Mr. Stout to Joseph H.
Goodwin, DPM.

       On October 2, 2017, the claims administrator issued a protestable Order informing Mr.
Stout that it had received medical evidence to continue temporary total disability benefits.
Temporary total disability benefits were continued after being suspended on September 14, 2017.
On November 1, 2017, the claims administrator approved the request for a referral to Dr. Goodwin.
                                                  2
Dr. Goodwin examined Mr. Stout on November 15, 2017, and he reported pain on palpation of the
right hallux as well as moderate soft tissue swelling. The claims administrator authorized Dr.
Goodwin as the treating physician of record by letter dated January 10, 2018.

        Dr. Goodwin completed a Diagnosis Update form on January 11, 2018, wherein he
requested that the diagnoses of nondisplaced fracture distal phalanx right hallux, pain of the right
toes, crush injury of the right foot, and neuralgia/neuritis be added to the claim. Dr. Goodwin
requested authority for electromyography testing and arterial studies to see if the crush injury
caused more than a fracture. On January 16, 2018, the claims administrator authorized Dr.
Goodwin’s request for electromyography testing and an arterial study. An electromyography
procedure of both lower extremities was conducted at Ohio Valley Medical Center on February 1,
2018, which was interpreted as showing no evidence for radiculopathy or neuropathy.

        The claims administrator issued two separate Orders dated March 1, 2018, with respect to
the issue of temporary total disability. The first Order notified Mr. Stout that his request for
temporary total disability benefits for the period of February 15, 2018, to April 23, 2018, was
denied. The claims administrator based its decision upon the information that Mr. Stout had been
released to return to work on September 11, 2017. The Order also noted that Mr. Stout’s
employment had been terminated on September 29, 2017. In the second Order, the claims
administrator closed the claim for temporary total disability benefits because the claims
administrator had not received medical evidence showing that Mr. Stout continued to be totally
disabled. Again, the claims administrator based its decision upon Mr. Stout being released to return
to work on September 11, 2017. Mr. Stout protested both decisions of the claims administrator.

        In an Order dated May 9, 2018, the Office of Judges found that Mr. Stout showed by a
preponderance of the evidence that the claims administrator erred in closing the claim for the
payment of temporary total disability benefits and denying benefits pursuant to its separate Orders
of March 1, 2018. The Office of Judges determined that Mr. Stout is entitled to temporary total
disability benefits from September 29, 2017, through October 27, 2017, and thereafter as
established by proper medical evidence. The Office of Judges also addressed the second Order
dated March 1, 2018, and reversed the claims administrator’s decision by finding that Mr. Stout
did not violate the employer’s attendance policy. The Office of Judges stated that the claims
administrator erred in its reliance on Mr. Stout’s termination based upon a violation of company
policy to deny his request for temporary total disability benefits. The employer protested the
decision.

        In an Order dated August 28, 2018, the Board of Review found that the Office of Judges’
analysis and conclusions were affected by error of law and clearly wrong in view of the reliable,
probative and substantial evidence of the whole record. The Board found that Dr. Kovalick
released Mr. Stout to return to work on September 11, 2017, with restrictions. Mr. Stout returned
to work on September 14, 2017. The Board of Review reasoned that Mr. Stout was working until
his employment was terminated on September 29, 2017. The Board of Review further found that
the claims administrator’s closure of the claim was proper because Mr. Stout was released to return
to work and he returned to work before being terminated by his employer for violating the
employer’s attendance policy. The order of the Office of Judges dated May 9, 2018, was reversed
                                                 3
and vacated. The Board of Review reinstated the two Orders of the claims administrator dated
March 1, 2018.

        After review, we agree with the decision of the Board of Review. The Board of Review
was correct to reverse the Order of the Office of Judges based upon the facts in evidence and the
statutory language of West Virginia Code § 23-4-7(a)(e) (2018). Evidence clearly shows that Mr.
Stout was terminated from his employment for violation of the employer’s attendance policy.
Because he was terminated for cause, there are no lost wages to replace. The Board of Review was
correct to reinstate the claims administrator’s Orders dated March 1, 2018.

         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 so clearly wrong based upon the evidentiary record that even when all
inferences are resolved in favor of the Board of Review’s findings, reasoning and conclusions,
there is insufficient support to sustain the decision. Therefore, the decision of the Board of Review
is affirmed.

                                                                                          Affirmed.

ISSUED: September 3, 2019

CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison

DISSENTING:
Justice Margaret L. Workman




                                                 4
