William Michael Reese v. W. Va. Div. of Environmental Protection

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS FILED
April 23, 2013

RORY L. PERRY II, CLERK

WILLIAM MICHAEL REESE, SUPREME COURT OF APPEALS

OF WEST VIRGINIA
Claimant Below, Petitioner

vs.) No. 11-0945 (BOR Appeal No. 2045199)
(Claim No. 2009086277)

WEST VIRGINIA DIVISION OF
ENVIRONMENTAL PROTECTION,
Employer Below, Respondent

MEMORANDUM DECISION
Petitioner William Michael Reese, by Patrick Maroney, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. The West Virginia Division of
Environmental Protection, by H. Toney Stroud, its attorney, filed a timely response.

This appeal arises from the Board of Review’s Final Order dated May 24, 2011, in which
the Board affirmed an October 1, 2010, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s November 9, 2009,
decision closing the claim for temporary total disability benefits. The Court has carefully
reviewed the records, written arguments, and appendices contained in the briefs, and the case is
mature for consideration.

This Court has considered the parties’ briefs and the record on appeal. 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. Reese sustained multiple injuries on April 1, 2009, when he slipped and fell at work.
On August 25, 2009, Dr. Mukkamala performed an independent medical evaluation and found
that because Mr. Reese is currently not able to receive any further treatment as a result of his
obesity, he is at maximum medical improvement. On October 7, 2009, Dr. Thaxton performed a
records review. She agreed with Dr. Mukkamala’s conclusions and found that the medical
evidence does not support continued temporary total disability benefits in this case.
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 In its Order affirming the November 9, 2009, claims administrator’s decision, the Office
of Judges held that Mr. Reese failed to show that he is entitled to additional temporary total
disability benefits. Mr. Reese disputes this finding and asserts that the evidence of record
demonstrates that he is entitled to temporary total disability benefits.

West Virginia Code § 23-4-7a (2005) states that temporary total disability benefits
terminate after a claimant has reached maximum medical improvement, regardless of whether he
has been released to return to work. The Office of Judges found the reports of Drs. Mukkamala
and Thaxton, who both found Mr. Reese to be at maximum medical improvement because he is
not able to receive further treatment, to be the most persuasive evidence of record. The Board of
Review reached the same reasoned conclusions in its decision of May 24, 2011. We agree with
the reasoning and conclusions of the Board of Review.

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.

Affirmed.

ISSUED: April 23, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING:
Justice Menis E. Ketchum

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