CHARLESTON – The West Virginia Supreme Court of Appeals ruled that the Summers County Board of Education rightfully closed a claim for temporary total disability benefits for a kitchen worker who injured her back in 2015.

“The claims administrator closed the claim for temporary total disability benefits on December 7, 2015, and stated that no temporary total disability benefits would be awarded,” the Sept. 22 memorandum decision states. “The Office of Judges affirmed the claims administrator’s decision on July 18, 2016. The Board of Review affirmed the Order of the Office of Judges on November 9, 2016.”

The court stated it found no substantial question of law and no prejudicial error with the record presented.

Vickie Gunter injured her back on Jan. 29, 2015, while she was cleaning pans and wrapping them in foil. While she was cleaning, she turned around and slipped on the floor. Gunter sought treatment at Summers County ARH Hospital, where she was diagnosed with a back sprain. The attending physician did not recommend that she miss any work.

On Feb. 2, 2015, Gunter was treated at Family Care Clinic and prescribed medications and advised to follow up with her family doctor. She reported continued lower back pain and she received an MRI and an order for physical therapy three times a week for four weeks.

On March 12, 2015,  an MRI showed mild degenerative disc disease and a mild bulging disc in the lumbar spine. She continued to be evaluated by Family Care Clinic and other physicians, continued with physical therapy and with her prescribed medications.

On Dec. 7, 2015, the claims administrator closed the claim for temporary total disability benefits and found that because Gunter was not disabled for three days, she was not to receive any temporary total disability benefits. The OOJ affirmed.

“After review, we agree with the decision of the Office of Judges as affirmed by the Board of Review,” the decision states. “The evidence of record supports the finding that Ms. Gunter was not temporarily and totally disabled under the law.”

The original treatment note for the injury did not prescribe missing any time at work, according to the decision.

“Another report indicated that Ms. Gunter should miss one week of work,” the decision states. “However, that report contained a diagnosis of radiculopathy, which has not been held compensable in this claim.”

As the denial of temporary total disability benefits is supported by the evidentiary record, the Office of Judges and Board of Review did not err in affirming the denial.

“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.”

W.Va. Supreme Court of Appeals case number: 16-1146

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