                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                            September 18, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
RESCARE,                                                                      OF WEST VIRGINIA

Employer Below, Petitioner

vs.)   No. 13-0277	 (BOR Appeal No. 2047659)
                    (Claim No. 2011023960)


BONNETTA COEBURN,
Claimant Below, Respondent


                             MEMORANDUM DECISION
       Petitioner ResCare, by Aimee L. Morgan-Stern and Denise D. Klug-Pentino, its
attorneys, appeals the decision of the West Virginia Workers’ Compensation Board of Review.
Bonnetta Coeburn, by Gregory S. Prudich, her attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated February 14, 2013, in
which the Board affirmed an August 27, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges modified the claims administrator’s February 28, 2011,
decision that held the claim compensable for a left lateral tibia plateau fracture but denied
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.

        Ms. Coeburn worked as a home healthcare aide for ResCare. On January 17, 2011, Ms.
Coeburn was trying to keep a client from breaking a window in her home and from hurting
herself or someone else in the home when the client lost her balance. Then, Ms. Coeburn lost her
balance and fell. Steven B. O’Saile, D.O., began treating Ms. Coeburn for her compensable
injury on January 19, 2011, and did not release her to return to work until June 6, 2011. The

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claims administrator held the claim compensable for a left lateral tibia plateau fracture but denied
temporary total disability benefits.

        The Office of Judges modified the claims administrator’s decision and ordered temporary
total disability benefits to be paid from January 17, 2011, to June 6, 2011. The Board of Review
affirmed the Order of the Office of Judges. The Board of Review applied a different reasoning
than the Order of the Office of Judges and relied on the fact that Ms. Coeburn had not reached
her maximum medical improvement nor was she medically certified to return to work. On
appeal, ResCare disagrees and asserts that Ms. Coeburn is not entitled to temporary total
disability benefits pursuant to West Virginia Code of State Rules § 85-1-5.1 (2009) because she
continued to perform her contractual duties for Southern Highlands for forty-two hours a week
and received payment for those duties. It further asserts that Ms. Coeburn’s payment from
Southern Highlands is not a government benefit received for her disabled son but rather income
for her as an independent contractor. Ms. Coeburn maintains that Dr. O’Saile, treated her for the
compensable injury beginning on January 19, 2011, and did not release her to return to work
until June 6, 2011.

        The Office of Judges and Board of Review both agreed that Ms. Coeburn should receive
temporary total disability benefits from January 17, 2011, to June 6, 2011, but relied on different
reasoning. The Office of Judges relied on West Virginia Code § 23-4-6(b) (2005) that states if an
injury causes temporarily and totally disability then a claimant should receive benefits based on
earnings, wherever earned, at date of injury. The Office of Judges found that Ms. Coeburn was
unable to perform her job as a home healthcare provider for ResCare. It also found that she was
not disabled from caring for her autistic son. The Office of Judges concluded that the fact that
Ms. Coeburn was able to care for her son during this time is completely irrelevant and does not
disqualify her from receiving temporary total disability benefits.

        The Board of Review found that Ms. Coeburn’s job duties with ResCare and her duties
under a state/federally funded program of the Social Security Act were not similar. The Board of
Review pointed out that Ms. Coeburn was required with ResCare to leave her home and take her
clients places but she was not required to leave her home under the state/federally funded
program of the Social Security Act. The Board of Review, therefore, concluded that Ms.
Coeburn had not reached her maximum medical improvement nor had she been medically
certified to return to work until June 6, 2011. This Court agrees with the conclusion of the Board
of Review. Ms. Coeburn was treated by Dr. O’Saile for her compensable injury beginning on
January 17, 2011, and was not released to return to work until June 6, 2011, nor was she found to
be at her maximum medical improvement. This Court finds that Ms. Coeburn is entitled to
temporary total disability benefits from January 17, 2011, until June 6, 2011.

        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.
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ISSUED: September 18, 2014

CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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