                                                                                   FILED
                             STATE OF WEST VIRGINIA                              July 15, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS

                          SUPREME COURT OF APPEALS                            OF WEST VIRGINIA




KELCEY FRANCIS WOLFE,
Claimant Below, Petitioner

vs.)   No. 11-1262 (BOR Appeal No. 2045764)
                    (Claim No. 2009070889)

CONSOLIDATION COAL COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Kelcey Francis Wolfe, by Robert L. Stultz, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Consolidation Coal Company, by
Gary W. Nickerson, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated August 12, 2011, in
which the Board affirmed a February 15, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed two claims administrator’s orders from April
23, 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. For these reasons, a memorandum
decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

        In this case, Mr. Wolfe was employed as a long-wall mining mechanic by Consolidation
Coal Company. On November 10, 2008, Mr. Wolfe was pulling a come-a-long that broke loose
and caused him to fall, injuring his back and right hip area. Mr. Wolfe continued to work several
more days without seeking medical treatment. On November 16, 2008, Mr. Wolfe sought
medical treatment at Monongalia General Hospital. At that time, Mr. Wolfe reported the accident
that occurred on November 10, 2008, and stated that when he rolled over in bed that morning he
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had felt a pop and was now in severe pain. The impression was lumbar radiculopathy and
multilevel mild degenerative facet arthropathy. On April 28, 2010, the Board of Review held Mr.
Wolfe’s claim compensable for strain/sprain of the lumbar and authorized DexPak and
methocarbamol.

         On April 23, 2010, the claims administrator issued an order closing Mr. Wolfe’s claim
for temporary total disability benefits. Mr. Wolfe appealed that decision arguing that his inability
to work from November 16, 2008, until March 16, 2009, was due to the normal consequences
that flowed from his compensable lumbar strain injury.

        The Office of Judges found that Mr. Wolfe had not met his burden of proof to show that
he missed work due to his compensable injury. The Office of Judges found that Mr. Wolfe
missed work due to a herniated disc and then for surgery on that herniated disc. The Office of
Judges noted that Mr. Wolfe’s claim was held compensable only for lumbar sprain. The
herniated disc has not been held compensable in this claim. The Board of Review affirmed the
decision of the Office of Judges.

        West Virginia Code §23-4-1c (2009) provides for the payment of temporary total
disability benefits during the healing or recovery period after an injury. On April 28, 2010, Mr.
Wolfe’s claim was held compensable for lumbar strain/sprain. We believe that evidence of
record demonstrates that the need for surgery is related to Mr. Wolfe’s compensable injury. Mr.
Wolfe missed work from November 16, 2008, until March 16, 2009, due to his injury. We find
that because Mr. Wolfe was absent from work due to his compensable injury that he is entitled to
temporary total disability benefits from November 16, 2008, until March 16, 2009.

       For the foregoing reasons, we find that the decision of the Board of Review is based upon
a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision
of the Board of Review is reversed and remanded to grant temporary total disability benefits
from November 16, 2008, through March 16, 2009.

                                                                             Reverse and Remand.

ISSUED: July 15, 2013

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

DISSENTING:
Justice Robin J. Davis
Justice Allen H. Loughry II



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Justice Loughry, dissenting:



        In its notice dated March 24, 2010, the claims administrator found insufficient evidence to

support temporary total disability benefits for the period of November 16, 2008, through March 16,

2009, as requested by Mr. Wolfe. The claims administrator allowed the claim to remain open for 45

days in order for the claimant to introduce additional evidence supporting the asserted period of

disability. No additional evidence was ever submitted by Mr. Wolfe, and the claim was closed by the

claims administrator on April 23, 2010. On appeal, the Office of Judges held that the claim was properly

closed for temporary total disability benefits and stated that the evidence does not prove that the

claimant was out of work for his lumbar sprain but rather due to a non-compensable condition. The

claims administrator, Office of Judges, and Board of Review all correctly found that Mr. Wolfe failed to

meet his burden of providing evidence to substantiate the continuation of temporary total disability

benefits, as it relates to his compensable lumbar sprain injury. Therefore, I dissent.




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