                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                                July 9, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
KRISTIE E. SHRADER,                                                           OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-1073	 (BOR Appeal No. 2049475)
                   (Claim No. 2013008852)

PAR-MAR OIL COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Kristie E. Shrader, by Robert Stultz, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Par-Mar Oil Company, by Alyssa
Sloan, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated September 25, 2014, in
which the Board affirmed a May 21, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 12, 2013,
decision denying Ms. Shrader’s request for authorization of temporary total disability benefits
from June 12, 2013, through August 17, 2013. 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.

        Ms. Shrader injured her lower back on September 19, 2012, while stocking merchandise
in the course of her employment as a manager at a convenience store. On October 3, 2012, the
claims administrator held the claim compensable for a lumbar sprain/strain. On October 31,
2012, the claims administrator granted Ms. Shrader temporary total disability benefits from
September 20, 2012, through September 23, 2012. Additionally, Ms. Shrader later testified in a
deposition that she received additional temporary total disability benefits from October 4, 2012,
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through October 18, 2012. Further, Ms. Shrader testified that she returned to work at light duty
on October 19, 2012, and continued working until her employment was terminated by Par-Mar
Oil Company on June 11, 2013, for employee misconduct.

       Joseph Grady II, M.D., performed an independent medical evaluation on May 13, 2013.
He opined that although he does not believe any additional treatment is needed for the
compensable lumbar sprain, Ms. Shrader has not yet reached maximum medical improvement
because she is continuing to pursue treatment for ongoing pain arising from the sacroiliac region.
On June 12, 2013, Ms. Shrader was treated by Josh Baker, PA-C, supervised by Timothy Peasak,
D.O. She reported experiencing ongoing back pain and further stated that her employment was
terminated the previous day. She also requested that a letter be written to the claims
administrator on her behalf requesting assistance until she obtains new employment.

         Ms. Shrader was again treated by Mr. Baker and Dr. Peasak on July 2, 2013. It was noted
that she was scheduled to receive a transforaminal epidural steroid injection in the lumbar spine
on July 12, 2013. Ms. Shrader stated that she has been unable to obtain new employment
following the termination of her employment with Par-Mar Oil Company, and she requested a
letter listing the dates on which she could be medically excused from reporting to work if she
were gainfully employed. Mr. Baker provided her with a letter stating that she should be excused
from any obligation to report to work from June 12, 2013, through July 13, 2013. On July 23,
2013, Ms. Shrader was once again treated by Mr. Baker and Dr. Peasak. She stated that the
epidural lumbar spine injection greatly improved her symptoms but reported experiencing
renewed lumbar spine pain after injuring herself while mowing her lawn. Mr. Baker provided a
new letter indicating that she should be excused from any obligation to report to work from June
12, 2013, through August 17, 2013.

        On August 12, 2013, the claims administrator denied authorization of Ms. Shrader’s
request for temporary total disability benefits from June 12, 2013, through August 17, 2013,
based upon a finding that Ms. Shrader’s employment had been terminated for reasons unrelated
to the compensable injury as of the requested onset date for temporary total disability benefits. In
its Order affirming the August 12, 2013, claims administrator’s decision, the Office of Judges
determined that Ms. Shrader has failed to demonstrate that she was unable to return to work as a
result of her compensable injury. The Board of Review affirmed the reasoning and conclusions
of the Office of Judges in its decision dated September 25, 2014. On appeal, Ms. Shrader asserts
that the evidence of record demonstrates that she is entitled to temporary total disability benefits
from June 12, 2013, through August 17, 2013.

        West Virginia Code § 23-4-7a (2014) states that temporary total disability benefits are
not payable after a claimant has reached maximum medical improvement, is released to return to
work, or actually returns to work, whichever occurs first. The evidence of record demonstrates
that immediately following the compensable injury, Ms. Shrader initially received temporary
total disability benefits. However, the record also clearly demonstrates that as of October 19,
2012, she was released to return to work at light duty and actually returned to work in that
capacity until her employment was terminated on June 11, 2013, after which time she requested
additional temporary total disability benefits. Therefore, pursuant to the provisions of West
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Virginia Code § 23-4-7a, Ms. Shrader’s eligibility for temporary total disability benefits in
relation to the compensable injury ended on October 19, 2012, because she was not only released
to return to work on that date but actually returned to work on October 19, 2012.

       Finally, it is important to note that although the Office of Judges declined to discuss Ms.
Shrader’s eligibility for temporary total disability benefits following the termination of her
employment for employee misconduct, West Virginia Code §§ 23-4-6(b) and 23-4-6d(b) (2014)
provides that temporary total disability benefits represent the replacement of lost wages arising
from a compensable injury. Because Ms. Shrader’s employment was terminated for employee
misconduct one day prior to the requested onset date for temporary total disability benefits, she is
also not entitled to temporary total disability benefits pursuant to West Virginia Code §§ 23-4­
6(b) and 23-4-6d(b).

        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: July 9, 2015

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

DISSENTING:
Justice Menis E. Ketchum




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