                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                               February 7, 2013

                                                                            RORY L. PERRY II, CLERK

RANDY D. KINCAID,                                                         SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-0685 (BOR Appeal No. 2045069)
                    (Claim No. 2010113882)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

MAPLE COAL COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Randy D. Kincaid, by John Shumate Jr., his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Maple Coal Company, by Sean
Harter, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated March 28, 2011, in
which the Board modified an August 26, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s November 19,
2009, decision and held the claim compensable and granted 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.

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        Mr. Kincaid was working for Maple Coal Company when he injured his neck on
September 4, 2009. The claims administrator rejected the claim for workers’ compensation
benefits on November 19, 2009, finding that a work-related injury did not occur.

        The Office of Judges reversed the claims administrator’s Order, holding the claim
compensable, and granted temporary total disability benefits from September 5, 2009, through
April 1, 2010, and thereafter as substantiated by proper medical evidence. The Board of Review
modified the Office of Judges' Order to grant temporary total disability benefits from September
5, 2009, through September 18, 2009. On appeal, Mr. Kincaid asserts that he was off work until
April 1, 2010, that there was no medical evidence to support the Board of Review’s finding that
he was not entitled to temporary total disability benefits past September 18, 2009, and that he is
entitled to temporary total disability benefits through at least April 1, 2010. Maple Coal
Company maintains that Mr. Kincaid was not entitled to temporary total disability benefits past
September 18, 2009, as found by the Board of Review.

        The Board of Review found that the claim was properly held compensable by the Office
of Judges, but that Mr. Kincaid was only entitled to temporary total disability benefits through
September 18, 2009. The Board of Review noted the lack of evidence establishing that Mr.
Kincaid was unable to work beyond September 18, 2009. Additionally, the Board of Review
noted a lack of evidence detailing treatment after October 2, 2009. Thus, it concluded that the
preponderance of the evidence did not establish that Mr. Kincaid was entitled to temporary total
disability benefits after September 18, 2009. We agree with the reasoning and conclusions of the
Board of Review.

        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: February 7, 2013

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

DISSENTING:
Justice Menis E. Ketchum

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