                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              March 27, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
JANET L. RICHARDSON,                                                          OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0106 (BOR Appeal No. 2048535)
                   (Claim No. 2012008470)

SPEEDWAY, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Janet L. Richardson, by M. Jane Glauser, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Speedway, LLC, by Howard G.
Salisbury Jr., its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated January 7, 2014, in
which the Board reversed and vacated a June 28, 2013, Order of the Workers’ Compensation
Office of Judges and reinstated the claims administrator’s April 16, 2012, decision denying Ms.
Richardson’s request for six weeks of permanent partial disability benefits for each 1% of her
award. In its Order, the Office of Judges had reversed the claims administrator’s decision and
remanded the claim for further consideration of the resources available to Ms. Richardson
including, but not limited to, vocational rehabilitation benefits and a functional capacity
evaluation. 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. Richardson worked as a sales clerk for Speedway, LLC. On August 29, 2011, she
was assaulted while at work. During the assault, her attacker shoved her repeatedly against a
metal sink, which caused a significant bruise on her back. X-rays were taken of Ms.
Richardson’s back at Wheeling Hospital, which showed multilevel disc narrowing. The x-rays
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did not reveal any acute compression. Ms. Richardson then came under the care of Heather
Gibbons, FNP-BC, who found that she had full range of motion and released her to return to
regular work duty without restrictions. Ms. Richardson returned to work on September 3, 2011,
but she continued to receive evaluations from Ms. Gibbons. The claims administrator held Ms.
Richardson’s claim compensable for a back contusion and determined that she was only eligible
for necessary medical treatment and expenses. An MRI was then taken of Ms. Richardson’s
lumbar spine and revealed multilevel degenerative disc disease and herniations. In light of these
findings, Ms. Gibbons placed Ms. Richardson on light work duty and restricted her from lifting
more than ten pounds or standing for more than two hours in an eight hour day. Speedway, LLC,
was not able to accommodate these restrictions, and Ms. Richardson stopped working. Ms.
Richardson was then treated by Matt El-Kadi, M.D., who diagnosed her with foraminal stenosis
and several disc protrusions throughout the lumbar spine. Sushil M. Sethi, M.D., then performed
an independent medical evaluation of Ms. Richardson. He found that she had reached her
maximum degree of medical improvement and required no further medical treatment for her
compensable contusion. Dr. Sethi determined that the MRI revealed age-related degenerative
disc disease at multiple levels of her spine, and he attributed her ongoing symptoms to this
condition. Dr. Sethi also found that Ms. Richardson had 5% whole person impairment related to
her lumbar injury. The claims administrator granted Ms. Richardson a 5% permanent partial
disability award based on Dr. Sethi’s report. Following this award, Ms. Gibbons again evaluated
Ms. Richardson. She found that Ms. Richardson was not currently working and recommended
that she receive rehabilitation and a functional capacity evaluation in order to assist her in
returning to work. Ms. Gibbons requested authorization for a functional capacity evaluation, but
on March 7, 2012, the claims administrator denied authorization for the request. Ms. Richardson
also requested that her permanent partial disability award be computed on the basis of six weeks
for every one percent of disability. On April 16, 2012, the claims administrator denied Ms.
Richardson’s request. The claims administrator also denied Ms. Richardson’s request for
physical and vocational rehabilitation services on April 27, 2012.1 On June 28, 2013, the Office
of Judges remanded the claims administrator’s decision for further consideration of vocational
rehabilitation benefits including whether Ms. Richardson was entitled to a functional capacity
evaluation. On January 7, 2014, the Board of Review reversed the Order of the Office Judges
and reinstated the claims administrator’s April 16, 2012, decision, leading Ms. Richardson to
appeal.

         The Office of Judges concluded that Ms. Richardson was not eligible for an additional
two weeks of benefits for each percent of her 5% permanent partial disability award because she
was released to return to work with restrictions. The Office of Judges found that Ms. Gibbons
had restricted her to light duty work and that Speedway, LLC, could not accommodate those
restrictions. It further found that, because she was released to return to work with restrictions, she
did not qualify for extra benefits under West Virginia Code § 23-4-6(e)(2) (2005). However, the
Office of Judges concluded that Ms. Richardson was entitled to additional consideration of the
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  Ms. Richardson protested the claims administrator’s March 7, 2012, decision denying authorization for a
functional capacity evaluation and its April 27, 2012, decision denying physical and vocational rehabilitation
benefits. In Richardson v. Speedway, LLC, Nos. 13-0082 & 13-0483 (June 27, 2014) (memorandum decision), this
Court affirmed both claims administrator decisions as well as the closure of Ms. Richardson’s claim for temporary
total disability benefits.
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available rehabilitation services needed to return her to suitable gainful employment, including a
functional capacity evaluation. The Office of Judges noted that Ms. Richardson had previously
been denied rehabilitation benefits, a functional capacity evaluation, and temporary total
disability benefits, but it found that she was entitled to a second look at her rehabilitation options.
It determined that Speedway, LLC, had not carried its shared responsibility under West Virginia
Code § 23-4-9(a) (2005) in attempting to return Ms. Richardson to work.

        The Board of Review concluded that the Order of the Office of Judges was affected by an
error of law and was in excess of its statutory authority because it addressed issues that were no
longer within its jurisdiction. The Board of Review, therefore, reversed the Office of Judges’
Order and reinstated the claims administrator’s decision denying Ms. Richardson’s request for
six weeks of permanent partial disability benefits for each percent of her award. The Board of
Review determined that Ms. Richardson’s entitlement to rehabilitation and a functional capacity
evaluation had already been considered. It found that the Office of Judges no longer had
jurisdiction to grant Ms. Richardson rehabilitation services or a functional capacity evaluation.

         We agree with the conclusions of the Board of Review. Ms. Richardson has not
demonstrated that she is entitled to have her 5% permanent partial disability award calculated at
a rate of six weeks for each percent of the award. Ms. Richardson was released to return to work,
but because she was restricted from performing the duties of her pre-injury job, she is not
entitled to have her award calculated on the basis of six weeks of compensation under West
Virginia Code § 23-4-6(e)(2). Her award should be computed based on the standard four week
rate under West Virginia Code § 23-4-6(e)(1). Ms. Richardson has also not demonstrated that she
is entitled to have her claim remanded to the claims administrator for additional consideration of
vocational rehabilitation services or a possible functional capacity evaluation. Ms. Richardson’s
entitlement to vocational benefits, including a functional capacity evaluation, has previously
been litigated and decided by this Court. Richardson v. Speedway, LLC, Nos. 13-0082 & 13­
0483 (June 27, 2014) (memorandum decision). The June 28, 2013, Order of the Office of Judges
is not consistent with this decision, and the Board of Review properly reversed it. The evidence
in the record demonstrates that Ms. Richardson’s need for vocational services including a
functional capacity evaluation is related to non-compensable degenerative conditions and not her
compensable lumbar contusion.

        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: March 27, 2015




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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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