                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             October 20, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
LEONARD DEMPSEY,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0656 (BOR Appeal No. 2047971)
                   (Claim No. 2011021876)

PARSLEY ENTERPRISES, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Leonard Dempsey, by Anne L. Wandling, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review.

        This appeal arises from the Board of Review’s Final Order dated May 28, 2013, in which
the Board reversed a December 7, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges reversed the claims administrator’s July 3, 2012, decision
which closed the claim for temporary total disability benefits. 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. Dempsey, a coal miner, was injured in the course of his employment on December
29, 2010, when his right hand was caught in a door handle. He required surgery on his wrist and
on May 10, 2012, Jerry Ambrosia, M.D., and Steven Novotny, M.D., determined that x-rays
showed excellent healing of the fractured wrist. Mr. Dempsey was released to return to full
active duty at work with no restrictions. The claims administrator thereafter closed the claim for
temporary total disability benefits on July 3, 2012.


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        The Office of Judges reversed the claims administrator’s decision in its December 7,
2012, Order and granted Mr. Dempsey temporary total disability benefits from May 25, 2012,
through July 12, 2012. It found that Mr. Dempsey was released to return to work on May 22,
2012, and worked for only two days before he was taken off of work again by Dr. Novotny. He
was treated again on July 12, 2012, by Dr. Novotny and released to return to work on July 13,
2012. Thereafter, Paul Bachwitt, M.D., performed an independent medical evaluation of Mr.
Dempsey and found him to be at maximum medical improvement as of July 17, 2012. The
Office of Judges therefore found that Mr. Dempsey was entitled to temporary total disability
benefits from May 25, 2012, through July 12, 2012.

        The Board of Review reversed the Office of Judges’ Order and reinstated the claims
administrator’s decision in its May 28, 2013, decision. It found that Drs. Novotny and Ambrosia
determined on May 10, 2012, that Mr. Dempsey was doing quite well and had no significant
pain. He reported at that time that he had been performing all of his activities of daily living
without significant hindrance. Imaging studies showed excellent alignment of the fracture with
good healing and the physicians released him to return to work with no restrictions. The claims
administrator then closed the claim for temporary total disability benefits and Mr. Dempsey
protested and submitted a report from Dr. Novotny dated July 12, 2012. On that date, Mr.
Dempsey reported a swelling mass that came and went and hurt when he was active. Dr.
Novotny found no evidence of a mass and range of motion of the wrist was unchanged from the
previous examination. X-rays were also unremarkable, showing only a well healed fracture.
Ultrasound showed no evidence of fluid in the wrist. The Board of Review noted that Dr.
Novotny stated he did not trust Mr. Dempsey and that he had issues with compliance. He
released him to return to work the following day. The Board of Review found no medical
evidence to justify the payment of temporary total disability benefits during the requested time
period. It determined that Dr. Novotny did not see Mr. Dempsey between May 10, 2012, and
July 12, 2012. He also did not indicate that Mr. Dempsey was temporarily and totally disabled
during the time period between those examinations.

       We agree with the reasoning and conclusions of the Board of Review. There is no
evidence in the record to indicate that Mr. Dempsey was temporarily and totally disabled during
the requested time period. There are no medical reports during the time period and no physician
of record opined that he was temporarily and totally disabled from May 25, 2012, through July
12, 2012.

        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: October 20, 2014


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

DISSENTING:
Justice Brent D. Benjamin
Justice Menis E. Ketchum




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