STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
JOHN VINESKY,
FILED
Claimant Below, Petitioner December 11, 2020
EDYTHE NASH GAISER, CLERK
vs.) No. 19-1053 (BOR Appeal No. 2054293) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
(Claim No. 2015028184)
MURRAY AMERICAN ENERGY, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner John Vinesky, by Counsel William C. Gallagher, appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). Murray American
Energy, Inc., by Counsel Denise D. Pentino and Aimee M. Stern, filed a timely response.
The issue on appeal is vocational rehabilitation services. The claims administrator closed
the claim for vocational rehabilitation services on January 4, 2019. The Workers’ Compensation
Office of Judges (“Office of Judges”) affirmed the decision in its May 30, 2019, Order. The Order
was affirmed by the Board of Review on October 21, 2019.
The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. 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.
Mr. Vinesky, a coal miner, injured his left knee when he stepped on a rock at work on April
13, 2015. A Functional Capacity Evaluation was performed on April 5, 2016, and indicated Mr.
Vinesky could perform light physical demand level jobs. His physical limitations presented a
barrier to return to work unless modifications could be made. Mr. Vinesky had some minimal
range of motion and strength deficits in the left knee but was mainly limited by pain with weight
bearing activities. Mr. Vinesky’s permanent work restrictions included occasional lifting and
carrying up to twenty pounds; sitting up to eight hours per day; standing, walking, or driving up to
one hour per day; and no climbing, crawling, or squatting.
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An April 26, 2016, work/activity status report indicates Mr. Vinesky had left knee pain and
a recurrent medical meniscus tear. He was able to perform limited duty. The claims administrator
referred Mr. Vinesky for a rehabilitation evaluation on June 3, 2016. A closure report was prepared
on February 9, 2017, indicating that no further vocational rehabilitation services were
recommended. Based on Mr. Vinesky’s vocational history and physical capabilities, he was
capable of seeking and applying for employment. No formal training was required. The claim was
closed for vocational rehabilitation services on February 14, 2017.
Mr. Vinesky testified in an April 21, 2017, deposition that he understood the rehabilitation
plan and that he worked with Erin Saniga, M.Ed., CRC, LPC, to find jobs. He was required to look
for jobs, which he did in person and online. Mr. Vinesky bid on jobs through the union but due to
his low seniority he was not able to get one of those jobs. Also, the jobs usually were not within
his physical restrictions. He called some of the employers for jobs he applied to outside of the
mines to see if the job was within his physical restrictions. He applied for jobs for which he thought
he could suffer through the pain, even if they were outside of his physical capabilities. Mr. Vinesky
stated that he was never really given a firm job offer. He requested authorization through the
rehabilitation plan to enroll in a technology certificate course at West Virginia Northern
Community College.
Ms. Saniga testified in a May 2, 2017, deposition that she identified 210 occupations that
would be appropriate for Mr. Vinesky in relation to his education, background, work experience,
and physical restrictions. Mr. Vinesky told her he had no computer skills. Therefore, she
recommended Mr. Vinesky take a basic computer course to get him familiar with the keyboard
and to enable him to become familiar with the use of the computer and its programs. She thought
this would benefit him in looking for jobs as well as in the jobs themselves. Mr. Vinesky
participated in the job exploration portion of his plan from July to November. This is the portion
of the program that generally lasts thirty days. It lasted longer in his case in order to allow time for
Mr. Vinesky to take the basic computer class. In her opinion, Mr. Vinesky obtained the basic
computer skills he needed for employment from this class. Mr. Vinesky then participated in the
job search portion of the plan for ninety days. Ms. Saniga had concerns about the type of jobs for
which Mr. Vinesky applied as they were too physically demanding. There were also some
positions for which he was not qualified in terms of education and training. Ms. Saniga opined that
a technology certificate that Mr. Vinesky wanted to obtain would not alter his employability. This
course was designed toward facilitating employment in a business office environment. She also
opined that the way he presented himself to employers was negatively impacting his ability to
obtain a job.
Vocational rehabilitation services were reinstated per an August 3, 2017, Office of Judges’
Order on August 3, 2017. An August 25, 2017, rehabilitation plan by Allegiant indicates Mr.
Vinesky was to complete a Computer Information Technology Certificate program from August
28, 2017, through December 31, 2017. Mr. Vinesky agreed to the plan. The plan was extended to
December 15, 2018. A January 2, 2019, closure report by Allegiant indicates Mr. Vinesky had
completed the training program and the claim was therefore closed for vocational rehabilitation
services. It was noted that in October of 2018, Mr. Vinesky expressed interest in pursuing an
Associate Degree in Microsoft Applications, which would require an additional thirty credits. Mr.
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Vinesky was only taking twelve credits per semester at $2,788 per semester. An associate degree
would require an additional three semesters to complete. Mr. Vinesky only had $4,900 left out of
his lifetime rehabilitation limit. Through his certificate program, Mr. Vinesky had become
qualified for many jobs. It was opined that Mr. Vinesky required no further training to obtain
gainful employment. The claims administrator closed the claim for vocational rehabilitation
services on January 4, 2019.
On March 7, 2019, Mr. Vinesky testified in a deposition that he had applied for fifty to
sixty jobs and had yet to find employment. Ms. Saniga also testified in a deposition that day. She
stated that prior to completing vocational there were 210 occupations that would be appropriate
for Mr. Vinesky in relation so his education, background, work experience, and physical
restrictions. Mr. Vinesky was still qualified for those positions. Completion of the certificate
program made him qualified for 1,894 occupations. Ms. Saniga opined that Mr. Vinesky was
provided sufficient vocational training to obtain gainful employment. She stated that Mr. Vinesky
does not require an associate degree to find a job. Christy Farnsworth, Director at the Academic
Support Center of WV Northern Community College, also testified that day. She asserted that an
associate degree would make Mr. Vinesky more employable. She stated that her research showed
few jobs for Mr. Vinesky’s technology certificate.
The Office of Judges affirmed the claims administrator’s closure of the claim for
rehabilitation services on May 30, 2019. It found that Mr. Vinesky’s rehabilitation goal was to
return to suitable gainful employment. To that end, he obtained a certificate in Computer
Information Technology. Mr. Vinesky testified that he had applied for fifty to sixty jobs with no
job offers. Ms. Farnsworth testified that an associate degree would make Mr. Vinesky more
employable. The Office of Judges determined that Mr. Vinesky had received approximately two
years of vocational services and had used the majority of his financial allotment. Ms. Saniga
testified that Mr. Vinesky’s certificate made him qualified for 1,894 jobs as compared to the 210
he was qualified for prior to training. The Office of Judges found that Ms. Saniga’s opinion was
more credible than that of Ms. Farnsworth, who found far fewer jobs from her search. It was
unclear what parameters Ms. Farnsworth used. The Office of Judges concluded that Mr. Vinesky
had received sufficient vocational rehabilitation services to return to gainful employment. The
Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and
affirmed its Order on October 21, 2019.
After review, we agree with the reasoning and conclusions of the Board of Review as
affirmed by the Office of Judges. Though Mr. Vinesky wishes to further his education, he has
received sufficient vocational rehabilitation services to become gainfully employed.
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.
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Affirmed.
ISSUED: December 11, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
DISSENTING:
Justice Margaret L. Workman
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