Supreme Court overrules Workers' Comp board; Loughry files dissent

CHARLESTON – A mining mechanic for Consolidation Coal will get paid for his time off work after the state Supreme Court’s overruling of the Workers’ Compensation Board of Review.

The court issued the 3-2 majority memorandum opinion reversing the Board of Review’s decision on July 15. The majority was composed of Chief Justice Brent D. Benjamin and justices Margaret L. Workman and Menis E. Ketchum. Justices Robin Jean Davis and Allen H. Loughry II made up the dissenting votes with Loughry filing a written dissent.

Kelcey Francis Wolfe was employed as a long-wall mechanic by Consolidation Coal Company when he fell on the job on Nov. 10, 2008, injuring his back and right hip area. Wolfe was pulling a come-a-long that broke loose and caused him to fall, according to the opinion.

Wolfe continued to work for several more days, not seeking treatment until Nov. 16, 2008. He reported that on that morning he experienced severe pain after rolling over in bed and feeling a pop.

Wolfe was diagnosed with multilevel mild degenerative facet anthropathy with lumbar radiculopathy. On April 28, 2010, the Board of Review held Wolfe’s claim compensable for strain/sprain of the lumbar and authorized DexPak and methocarbamol.

By this time, however, Wolfe had undergone surgery on his back and missed work from Nov. 16, 2008 until March 16, 2009. He appealed the ruling of the claims administrator to the Workers’ Compensation Office of Judges.

The Office of Judges found Wolfe had not proved he missed work due to his compensable strain/sprain, finding that his time off was due to a herniated disk and that the disk herniation, and subsequent surgery for the condition, was not compensable.

The Board of Review affirmed the decision of the Office of Judges, finding the claim compensable for strain/sprain of the lumbar but holding that the ruling did not cover the surgery for the herniated disk. He appealed to the order of the Board of Review to the state high court.

“West Virginia Code §23-4-1c (2009) provides for the payment of temporary total disability benefits during the healing or recovery period after an injury. On April 28, 2010, Mr. Wolfe’s claim was held compensable for lumbar strain/sprain. We believe that evidence of record demonstrates that the need for surgery is related to Mr. Wolfe’s compensable injury,” the majority opinion states.

“Mr. Wolfe missed work from November 16, 2008, until March 16, 2009, due to his injury. We find that because Mr. Wolfe was absent from work due to his compensable injury that he is entitled to temporary total disability benefits from November 16, 2008, until March 16, 2009.

“For the foregoing reasons, we find that the decision of the Board of Review is based upon a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision of the Board of Review is reversed and remanded to grant temporary total disability benefits from November 16, 2008, through March 16, 2009.”

In his dissenting opinion, Loughry noted that the claims administrator had allowed the claim to remain open for an extended time to give Wolfe time to introduce additional evidence supporting his claim that the herniated disc surgery was related to his work accident but that no additional evidence was ever submitted.

“The claims administrator, Office of Judges, and Board of Review all correctly found that Mr. Wolfe failed to meet his burden of providing evidence to substantiate the continuation of temporary total disability benefits, as it relates to his compensable lumbar sprain injury. Therefore, I dissent," he wrote.