                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

CHARLES N. HARE,                                                                    FILED
Claimant Below, Petitioner                                                       October 10, 2017
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs.)   No. 16-1152 (BOR Appeal No. 2051377)                                      OF WEST VIRGINIA

                    (Claim No. 2010134473)

MURRAY AMERICAN ENERGY, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
      Petitioner Charles N. Hare, by Mikel R. Kinser, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Murray American Energy, Inc.,
by James W. Heslep, its attorney, filed a timely response.

        The issue on appeal is the proper time period for payment of temporary total disability
benefits. On September 11, 2015, the claims administrator granted temporary total disability
benefits for the period from May 2, 2010, through May 31, 2010. The Office of Judges reversed
the claims administrator in its June 13, 2016, Order and granted temporary total disability
benefits for the period from May 2, 2010, through April 29, 2012. The Order was modified by
the Board of Review on November 10, 2016. The Board modified the Order to grant temporary
total disability benefits for the period from May 2, 2010, through November 9, 2010. 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.

        Charles N. Hare, a coal miner, injured his left knee on May 1, 2010. He underwent a left
arthroscopic medial meniscectomy on July 12, 2010. Mr. Hare started physical therapy on
August 11, 2010, when he reported having problems with weight bearing activities, specifically
ascending and descending stairs. His goal was to return to his pre-injury level of functioning. Mr.
Hare’s last physical therapy appointment was on November 9, 2010. At that time, he was
reporting no major issues.
                                                1
       A January 18, 2011, letter to Mr. Hare from a representative from the UMWA Health and
Retirement Funds Eligibility Services shows that his application for a retirement pension had
been approved. He was provided a check that represented payments from June of 2010 through
January of 2011.

       After litigation, the claims administrator held the claim compensable for a torn medical
meniscus of the left knee on February 29, 2012. Sushil Sethi, M.D., performed an independent
medical evaluation on March 28, 2014. Mr. Hare provided a history of getting out of a mantrap
when he felt sudden pain and pop in his left knee. He complained of pain in the knee area with
heavy exertion and on squatting or bending too much. Dr. Sethi noted the surgery for the knee
was successful with no complications. Mr. Hare had retired and was not working. Dr. Sethi
opined Mr. Hare had reached maximum medical improvement and assessed 4% whole person
impairment.

        On September 11, 2015, the claims administrator granted temporary total disability
benefits for the period from May 2, 2010, through May 31, 2010. The claims administrator ended
the benefits on May 31, 2010, as information from the employer showed Mr. Hare retired as of
June 1, 2010. The Office of Judges reversed the claims administrator’s decision and granted
temporary total disability for the period from May 2, 2010, through April 29, 2012.

        The Office of Judges determined that, at fifty-eight years old at the time of the injury, “it
is presumed that the claimant did not intend to retire at that time”. It also found that Mr. Hare
filed the claim prior to filing for retirement benefits. Therefore, the Office of Judges found that
Mr. Hare suffered a compensable injury that made him retire. It then relied on West Virginia
Code of State Rules §85-1-5.2 (2006), finding that Mr. Hare was entitled to the statutory
maximum of 104 weeks of temporary total disability benefits. The Office of Judges went on to
state that there was no indication that anyone found Mr. Hare had reached maximum medical
improvement until he was examined by Dr. Sethi on March 28, 2014. Therefore, Mr. Hare was
entitled to temporary total disability benefits for the period from May 2, 2010, through April 29,
2012.

        The Board of Review found the analysis and conclusions of the Office of Judges were
clearly wrong in view of the reliable, probative and substantial evidence on the whole record. It
found Mr. Hare participated in numerous physical therapy sessions from August 25, 2010,
through November 9, 2010, and there was no evidence showing Mr. Hare remained temporarily
and totally disabled after November 9, 2010. The Board of Review found Mr. Hare was entitled
to temporary total disability benefits for the period from May 2, 2010, through November 9,
2010, and modified the Office of Judge’s, Order accordingly.

       After review, we agree with the Board of Review. The Office of Judge’s presumption that
Mr. Hare suffered a compensable injury that made him retire is not supported by the evidence.
The evidentiary record is void of testimony in that regard. The Board of Review relied on the
physical therapy records in determining the date that temporary total disability benefits should be
terminated. The last documented treatment note is November 9, 2010, when Mr. Hare reported
                                                 2
no major issues. Ideally, the evidence would have included physician testimony establishing the
date of maximum medical improvement and/or the date upon Mr. Hare could have returned to
work, as well as Mr. Hare’s own testimony regarding his ability to work. The Board of Review’s
decision is supported by a preponderance of the evidence.


        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 10, 2017


CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




                                                3
