WEST VIRGINIA RECORD

CHARLESTON - The state Supreme Court has sided with a former hotel employee in reversing the state Workers’ Compensation Board of Review’s order that had cut off her disability benefits prematurely.

The 4-1 memorandum decision was issued March 6. Justice Robin Jean Davis dissented.

Claimant Geneva I. Blankenship was employed with the Greenbrier Hotel Corporation when she says she was injured while making up a bed on Sept. 29, 2007. She reached “maximum medical improvement” on Feb. 23, 2009, according to the opinion.

The claims administrator, however, stopped paying Blankenship benefits on Sept. 29, 2008. Blankenship requested that she be paid until she reached the maximum medical improvement date of Feb. 2009.

The appeal came after the Board of Judges order affirming the claims administrator was affirmed by the Board of Review.

“Pursuant to West Virginia Code § 23-4-7a(e) (2005), payment of temporary total disability benefits must stop on the earliest date that a claimant a) reaches maximum medical improvement, b) is released to return to work, or c) actually returns to work,” the opinion states.

“Ms. Blankenship never returned to work following the compensable injury, and was never released to return to work. She retired in March of 2009 due to her compensable injuries, after reaching maximum medical improvement.

“The evidence of record indicates that Ms. Blankenship remained temporarily and totally disabled until reaching maximum medical improvement on February 23, 2009, and that because she retired after reaching maximum medical improvement, her retirement does not affect her ability to receive temporary total disability benefits because they terminated at the time she reached maximum medical improvement.

“Therefore, the decision of the Board of Review is reversed, and the case is remanded with the instruction to grant Ms. Blankenship temporary total disability benefits through February 23, 2009, when she reached maximum medical improvement, pursuant to West Virginia Code § 23-4-7a(e).

“For the foregoing reasons, we find that the decision of the Board of Review is in clear violation of a statutory provision, and is also based upon a material mischaracterization of the evidentiary record. Therefore, the decision of the Board of Review is reversed.”