                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

MCELROY COAL COMPANY,                                                                 FILED
Employer Below, Petitioner                                                        February 21, 2020
                                                                               EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
vs.)   No. 19-0038 (BOR Appeal No. 2053171)                                        OF WEST VIRGINIA
                   (Claim No. 2013002855)

JOSHUA RICHARDS,
Claimant Below, Respondent


                              MEMORANDUM DECISION
       Petitioner McElroy Coal Company, by Counsel Denise D. Pentino and Aimee M. Stern,
appeals the decision of the West Virginia Workers’ Compensation Board of Review (“Board of
Review”). Joshua Richards, by Counsel William C. Gallagher, filed a timely response.

        The issue on appeal is vocational rehabilitation benefits. The claims administrator closed
the claim for vocational rehabilitation on February 5, 2018. The Office of Judges reversed and
remanded the decision in its July 13, 2018, Order with instructions to form a rehabilitation plan
and pay Mr. Richards temporary total disability benefits until completion of the rehabilitation plan
or rejection of the plan by Mr. Richards. The Order was affirmed by the Board of Review on
December 21, 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.

       Mr. Richards, a track man, was injured in the course of his employment on July 19, 2012,
when the man bus he was operating was struck by another bus. The July 21, 2012, Employees’
and Physicians’ Report of Injury indicates he injured his lower back and neck. The claim was held
compensable for post-concussion syndrome, neck sprain, headache, unspecified head injury, and
lumbar sprain.


                                                 1
       Mr. Richards underwent a left L4-5 microdiscectomy for a herniated disc in October of
2015. In January of 2017, he underwent lumbar spine surgery due to a recurrent herniated disc,
radiculopathy, and lower back pain. Mr. Richards was referred for a permanent partial disability
evaluation on May 12, 2017. The claims administrator listed the compensable diagnoses as fusion
of lumbar spine, fusion of cervical spine, left foot drop, and lumbar intervertebral disc disorder
with radiculopathy.

        A May 31, 2017, physical therapy treatment note indicates Mr. Richards reported that he
felt “okay” and that he was going back to school to prepare for a new job. On August 29, 2017, a
functional capacity evaluation was performed and indicated Mr. Richards was at the medium
physical demand level. It was noted that he last worked in 2015 and had been off of work for two
years. A workers’ compensation duty form was completed at MedExpress on November 20, 2017,
and indicated Mr. Richards could work modified duty. He had limitations in lifting, was unable to
work underground, could not wear steel toed shoes, could stand/walk for half of a shift only, and
needed breaks as required.

        In a December 22, 2017, letter to the claims administrator, Mr. Richards’s counsel
requested referral for vocational rehabilitation since Mr. Richards’s back and foot drop prevented
him from returning to the mines. On December 28, 2017, the claims administrator granted twenty
hours of plan development if it was determined by a rehabilitation evaluation that Mr. Richards
would benefit from the services. The authorization dates were December 28, 2016, through
February 28, 2017. Mr. Richards’s counsel submitted another letter on January 16, 2018, in which
he asked if Mr. Richards would be receiving temporary partial rehabilitation benefits as his
employment begins. It was noted that Mr. Richards was approved for an apprenticeship program
with a local union.

       The claims administrator determined on January 25, 2018, that Mr. Richards is not eligible
for temporary partial rehabilitation benefits because a rehabilitation plan was not written or
implemented. His return to work was therefore not part of a rehabilitation plan. On February 1,
2018, a closure report was prepared by Erin Saniga, M.Ed., C.R.C. It was indicated that the claim
was being closed because Mr. Richards was not eligible for vocational services due to his
acceptance into a program outside of participation in a rehabilitation program.

         In a February 16, 2018, letter to the claims administrator, Mr. Richards’s counsel stated
that he is in an apprenticeship program but it is a schooling process until work is actually available.
Claimant’s counsel stated that steady work would likely not be available until April and there was
no guarantee of employment. He asserted that Mr. Richards would still benefit from a vocational
rehabilitation program.

        The claims administrator closed the claim for vocational rehabilitation on February 5,
2018. The Office of Judges reversed and remanded the decision on July 13, 2018, with instructions
to form a rehabilitation plan and pay Mr. Richards temporary total disability benefits until
completion of the rehabilitation plan or rejection of the plan by Mr. Richards. It found that Ms.
Saniga performed a file closure review in which she stated that Mr. Richards was ineligible for
rehabilitation benefits since he was accepted to an apprenticeship program outside of his
                                                  2
rehabilitation plan. The Office of Judges determined that Mr. Richards had a referral for vocational
rehabilitation and that the process should have proceeded from that point. His apprenticeship
would not have caused rehabilitation efforts to cease. The apprenticeship program was paid for by
Mr. Richards and there is was no guarantee of employment. The Office of Judges concluded that
the reason for the closure of the claim was the apprenticeship but it appears from Ms. Saniga’s
report that the apprenticeship would not result in gainful employment. The Office of Judges noted
that the apprenticeship was for iron working, which is a heavy physical demand level that Mr.
Richards is not capable of performing. Further, he was not paid for his time in the classroom. The
Office of Judges therefore held that Mr. Richards was entitled to vocational rehabilitation to assist
him in returning to gainful employment. The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its Order on December 21, 2018.

         After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Though Mr. Richards enrolled in an apprenticeship outside of
vocational rehabilitation services, such apprenticeship is unpaid and unlikely to lead to gainful
employment. Further, Mr. Richards cannot physically perform the job for which the apprenticeship
is training him. As he has not return to gainful employment, Mr. Richards was properly afforded
vocational rehabilitation services and temporary total disability benefits until such time that he
returns to work.

         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: February 21, 2020


CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




                                                 3
