Clyde R. Stephenson v. W. Va. Office of Insurance Commissioner/Columbia Gas Transmission

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
March 27, 2013
RORY L. PERRY II, CLERK
CLYDE R. STEPHENSON, SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 11-0948 (BOR Appeal No. 2045287)
(Claim No. 2009070220)
WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent
and
COLUMBIA GAS TRANSMISSION, CORP.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Clyde R. Stephenson, by Edwin Pancake, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Columbia Gas Transmission,
Corp., by H. Toney Stroud, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated May 24, 2011, in which
the Board affirmed an October 22, 2010, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s February 17, 2010, and
March 22, 2010, decisions closing the claim for temporary total disability benefits, and denying a
reopening for 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. Stephenson was working for Columbia Gas when he was injured in a work-related
vehicle accident. On February 17, 2010, the claims administrator closed the claim for temporary
total disability benefits because evidence showing continued disability had not been received.
Subsequently, on March 22, 2010, the claims administrator denied a request to reopen the claim
for temporary total disability benefits because the evidence did not demonstrate that Mr.
Stephenson was suffering from any additional disability than what had been previously
considered.
The Office of Judges held that the evidence did not establish that Mr. Stephenson
remained temporarily and totally disabled past January 10, 2010. Mr. Stephenson disputes this
and asserts that because Dr. Hess’s January 10, 2010, evaluation did not contain an impairment
rating it was incomplete until the addendum of July 22, 2010, and he is entitled to temporary
total disability benefits until July 22, 2010. Columbia Gas maintains that the claim was properly
closed for temporary total benefits, and that no evidence indicates that Mr. Stephenson remains
temporarily and totally disabled.
Under West Virginia Code § 23-4-7a (2005), temporary total disability benefits are
suspended at the earliest of: (a) information that the claimant has reached his/her maximum
degree of medical improvement; or (b) has been released to return to work; or (c) has actually
returned to work. The Office of Judges noted that Dr. Richards had released Mr. Stephenson to
return to work as early as April of 2009. It further noted that Dr. Baisas and Dr. Hess found that
Mr. Stephenson had reached maximum medical improvement, on May 13, 2009, and January 10,
2010, respectively.
The Office of Judges noted that during evaluations with both Drs. Baisas and Hess, Mr.
Stephenson had no complaints. Additionally, the Office of Judges noted that Dr. Richards, the
treating physician, stated on July 9, 2009, that Mr. Stephenson had no complaints, but had
appeared to fill out forms. The Office of Judges concluded that the claims administrator was
correct to close the claim for temporary total disability benefits, and deny a reopening of the
claim for temporary total disability benefits. The Board of Review reached the same reasoned
conclusions in its decision of May 24, 2011. 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.
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ISSUED: March 27, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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