West Virginia Record

Wednesday, October 23, 2019

Supreme Court sides with workers' compensation board on appeal

State Supreme Court

By Kyla Asbury | Sep 16, 2019


CHARLESTON — The West Virginia Supreme Court of Appeals sided with the West Virginia Workers' Compensation Board of Review in an appeal involving temporary disability benefits.

John Stout II made a claim for temporary total disability benefits and that claim was denied on March 1, 2018, and the claim was closed, according to a Sept. 3 decision.

The Workers' Compensation Office of Judges reversed the claims administrator's orders and awarded Stout temporary total disability benefits from Sept. 29, 2017, through Oct. 27, 2017, and thereafter as substantiated by proper medical evidence.

The Office of Judges also reversed the claims administrator’s decision to close the claim for the payment of temporary total disability benefits.

However, the Board of Review reversed and vacated that decision on Aug. 28, 2018, and reinstated the claim's administrator's earlier orders.

Stout previously worked for Advantage Solutions as a retail sales representative. He was injured at work on July 19, 2017, when he was lifting a large bag of cat litter while working at Wal-Mart. A plastic strap broke on the box and the box fell on Stout’s right foot causing pain, swelling, bruising and causing him to walk with a limp.

Stout was treated by several physicians and returned to work on Sept. 14, 2017, with restrictions. His temporary total disability benefits were suspended once he was able to return to work, however, approximately two weeks later, his employment was terminated.

The claims administrator issued to orders in March 2018 denying Stout's claim and closing the claim. On May 9, 2018, the Office of Judges found that Stout showed by a preponderance of the evidence that the claims administrator erred in closing the claim for the payment of temporary total disability benefits and denying benefits pursuant to the separate orders.

The Office of Judges then determined that Stout was entitled to temporary total disability benefits from Sept. 29, 2017, through Oct. 27, 2017, and thereafter as established by proper medical evidence and also found that Stout did not violate the employer’s attendance policy--the reason given for why he was fired.

The Board of Review then issued an order on Aug. 28, 2018, that found that the Office of Judges’ analysis and conclusions were affected by error of law and clearly wrong in view of the reliable, probative and substantial evidence of the whole record.

"After review, we agree with the decision of the Board of Review," the decision states. "The Board of Review was correct to reverse the Order of the Office of Judges based upon the facts in evidence and the statutory language of West Virginia Code § 23-4-7(a)(e) (2018)."

The decision states that evidence clearly shows that Stout was terminated from his employment for violation of the employer’s attendance policy and because he was terminated for cause, there were no lost wages to replace.

"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 so clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor of the Board of Review’s findings, reasoning and conclusions, there is insufficient support to sustain the decision," the decision states.

West Virginia Supreme Court of Appeals Case number: 18-0835

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