                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               March 4, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
DANIEL J. MONTE,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0502 (BOR Appeal No. 2048970)
                   (Claim No. 2009083552)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

RG STEEL WHEELING, LLC,
Employer/Claimant Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Daniel J. Monte, by William C. Gallagher, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of
Insurance Commissioner, by Jon H. Snyder, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated April 28, 2014, in
which the Board reversed an October 18, 2013, Order of the Workers’ Compensation Office of
Judges and reinstated the claims administrator’s December 18, 2012, decision closing the claim
for vocational rehabilitation benefits. In its Order, the Office of Judges had reversed the claims
administrator’s decision and reopened the claim for vocational rehabilitation 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. Monte worked for RG Steel Wheeling, LLC. On March 10, 2009, he fractured his
left wrist when he slipped and fell. It was later determined that he had also torn his rotator cuff in
his left shoulder. The claims administrator held the claim compensable. Mr. Monte underwent
surgery for his left shoulder as well as physical therapy. Following a course of therapy on his
wrist, Mr. Monte was referred to Working Options, Inc., for vocational rehabilitation services.
Mr. Monte first contacted Working Options, Inc., for rehabilitation services on August 22, 2011.
Frank Collelo, M.S., C.R.C., Q.R.P., the counselor at Working Options, Inc., initially attempted
to return Mr. Monte to work with RG Steel Wheeling, but when this attempt was unsuccessful,
Mr. Collelo initiated the job search phase of the services. Mr. Collelo determined that Mr. Monte
had some undergraduate training in commercial art and design. As part of the services, Mr.
Collelo provided Mr. Monte with training in interviewing and resume writing. He also provided
Mr. Monte with some computer training. Mr. Monte made approximately 400 job contacts while
receiving services from Working Options, Inc.

        On September 24, 2012, after Mr. Monte had received over a year of vocational
rehabilitation services from Working Options, Inc., the claims administrator contacted Mr.
Collelo and requested that he close the claim. The claims administrator indicated to Mr. Collelo
that Mr. Monte’s claim would be reopened for additional rehabilitation services with a West
Virginia provider. The same day, the claims administrator referred Mr. Monte to GENEX
Services and authorized ten hours of rehabilitation plan development. Catherine L. Phillis-
Harvey, M.S., C.R.C., Q.R.P., a case manager for GENEX Services, then made contact with Mr.
Monte and developed a vocational rehabilitation plan under which Mr. Monte was required to
make job search contacts and submit logs of those contacts to her on a weekly basis. Ms. Phillis-
Harvey also stated that she would evaluate Mr. Monte’s rehabilitation needs and develop a plan
for him. The claims administrator then authorized rehabilitation benefits from September 24,
2012, through October 24, 2012. Ms. Phillis-Harvey sent a letter to Mr. Monte stating that his
benefits would be discontinued at the end of this authorized period. The claims administrator
also issued Mr. Monte a suspension notice informing him that, because he had already received
the necessary skills for locating and securing alternative employment, he no longer needed
additional vocational rehabilitation services. The claims administrator informed him that his
claim would be closed on December 2, 2012, unless additional evidence was submitted justifying
the continuation of benefits. On December 18, 2012, the claims administrator closed Mr.
Monte’s claim for vocational rehabilitation benefits. Mr. Monte then testified by deposition that
he had not received adequate vocational assistance from GENEX Services or Ms. Phillis-Harvey.
He testified that he had only communicated with her over the phone and that she did not help
him make any additional employment contacts. Mr. Monte further testified that he was willing to
be retrained and make additional employment contacts if his vocational rehabilitation plan was
reopened. On October 18, 2013, the Office of Judges reversed the claims administrator’s closure
of the claim and ordered that it reformulate a rehabilitation plan for Mr. Monte. The Office of
Judges also ordered that Mr. Monte be paid temporary total disability benefits during the period
of the rehabilitation plan. The Board of Review reversed the Order of the Office of Judges and
reinstated the claims administrator’s decision on April 28, 2014, leading Mr. Monte to appeal.


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        The Office of Judges concluded that the claims administrator did not fulfill its shared
responsibility to provide Mr. Monte with alternative employment. It determined that, despite Mr.
Monte’s motivated attempts to find gainful employment, the claims administrator was merely
“going through the motions” of rehabilitating him instead of actually assisting him in re-entering
the work force. The Office of Judges found that the services provided by GENEX Services were
not sufficient to fulfill the claims administrator’s shared responsibility under West Virginia Code
§ 23-4-9 (2005).

        The Board of Review concluded that the Office of Judges was clearly wrong in view of
the evidence on the whole record. It found that Mr. Monte had been provided sufficient
vocational training and skills necessary to locate suitable gainful employment. The Board of
Review also determined that he did not need any additional vocational rehabilitation services in
order to conduct further job searches. It found that the claims administrator properly closed the
claim for vocational rehabilitation benefits.

        We agree with the conclusions and the findings of the Board of Review. The evidence in
the record demonstrates that the rehabilitation plans conducted by Working Options, Inc., and
GENEX Services provided sufficient vocational training and employment contacts to fulfill the
claims administrator’s responsibility under West Virginia Code § 23-4-9 to assist Mr. Monte in
returning to suitable gainful employment. Although Mr. Monte testified that he would be willing
to participate in another rehabilitation plan, there is no indication that additional services or
training would help him return to suitable employment. He has already received over a year of
vocational services, which included resume building, computer training in commercial art, and
job search assistance. Mr. Monte has not been able to find suitable gainful employment. The
claims administrator, however, has provided him sufficient assistance in returning to the work
force, and it properly closed his claim for vocational rehabilitation benefits.

        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 4, 2015

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

DISSENTING:
Chief Justice Margaret L. Workman
Justice Menis E. Ketchum
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