                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               July 11, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
AMY M. YOUNG,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 11-1501	 (BOR Appeal No. 2045695)
                    (Claim No. 2010127065)

LOVED ONES IN-HOME CARE, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Amy M. Young, by Robert M. Williams, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Loved Ones In-Home Care, LLC,
by Lisa A. Warner Hunter, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated September 29, 2011, in
which the Board reversed a March 2, 2011, Order of the Workers’ Compensation Office of
Judges and reinstated the claims administrator’s August 17, 2010, decision. In its Order, the
Office of Judges reversed the claims administrator’s August 17, 2010, decision closing Ms.
Young’s claim for temporary total disability benefits, and denying authorization for a TENS unit
and additional physical therapy. 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 a material
misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited
circumstances” requirement of Rule 21(d) of the Revised Rules of Appellate Procedure and is
appropriate for a memorandum decision rather than an opinion.

        Ms. Young suffered an injury while moving a patient when working for Loved Ones In-
Home Care, LLC. The claim was held compensable for “strain lumbar region of the back,” and
Ms. Young was granted temporary total disability benefits beginning on February 18, 2010, and
lasting until further notice. On August 4, 2010, the claims administrator suspended the claim for
temporary total disability benefits “due to suspicious behavior” and relied upon the “procedures
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for suspension for claimant abuse,” set forth in West Virginia Code of State Rules § 85-1-14.1­
14.4 (2006). The Office of Judges reversed the claims administrator’s decision dated August 17,
2010, and ordered the claims administrator to reinstate payment of temporary total disability
benefits since the date of suspension, August 4, 2010, to December 10, 2010, as substantiated by
appropriate medical evidence, and also ordered the authorization of a TENS unit and continued
physical therapy.

        The Board of Review reversed the Office of Judges’ Order and reinstated the claims
administrator’s decision dated August 17, 2010, in reliance on Dr. Mir’s findings that Ms. Young
has reached maximum medical improvement, and that a TENS unit and additional physical
therapy are not reasonable or necessary to treat the compensable injury. On appeal, Ms. Young
disagrees and asserts that she should not be denied temporary total disability benefits on the basis
of suspicious behavior because there was no notice of it being suspended and her maximum
medical improvement status is not at issue. She further asserts that Dr. Mir’s opinion is not as
credible as that of Dr. Jarrell because Dr. Mir is hired exclusively by employers throughout West
Virginia to defend their workers’ compensation claims. Loved Ones In-Home Care, LLC
maintains that Ms. Young failed to establish that she is entitled to any additional temporary total
disability benefits, and further argued the medical evidence established that Ms. Young sustained
only a lumbar sprain/strain and did not require any additional treatment outside the guidelines set
forth in West Virginia Code of State Rules § 85-20 (2006).

        The Board of Review concluded that Ms. Young is no longer entitled to temporary total
disability benefits, authorization of a TENS unit, and additional physical therapy because she has
reached maximum medical improvement. However, the Board of Review failed to take notice
that Ms. Young’s temporary total disability benefits were suspended on August 4, 2010, even
though she was not found to have reached maximum medical improvement until September 22,
2010. The Office of Judges erred in continuing Ms. Young’s temporary total disability benefits
after she had reached maximum medical improvement. Therefore, Ms. Young is entitled to
temporary total disability benefits from August 4, 2010, until September 22, 2010, when she
reached maximum medical improvement. The Board of Review was partially correct in reversing
the Office of Judges’ Order and reinstating the claims administrator’s decision of denying
additional physical therapy and a TENS unit, and the Board of Review is partially wrong in
denying Ms. Young temporary total disability benefits. Therefore, the Board of Review is
affirmed in part in the denial of the TENS unit and the additional physical therapy and reversed
in part on the denial of temporary total disability benefits and granted temporary total disability
benefits from August 4, 2010, until September 22, 2010.


                                                          Affirmed in Part and Reversed in Part.

ISSUED: July 11, 2013




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

DISSENTING:
Justice Robin J. Davis




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