STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
April 19, 2013
RORY L. PERRY II, CLERK
FRANK JEFF BERTRAND, SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 11-1030 (BOR Appeal No. 2045447)
(Claim No. 2010130536)
ALADDIN SIGNS, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Frank Bertrand, by Sue Anne Howard, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Aladdin Signs, Inc., by Jeffrey
Brannon, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated June 10, 2011, in which
the Board affirmed a December 28, 2010, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s August 30, 2010, decision
holding the claim compensable and granting eight weeks of temporary total disability benefits.
The Office of Judges also reversed the claims administrator’s September 10, 2010, decision
denying a request for additional 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. Bertrand was working for Aladdin Signs when he injured his lower back lifting a
steel cage. The claim was held compensable for a low back sprain/strain, and on August 30,
2010, the claims administrator granted Mr. Bertrand eight weeks of temporary total disability
benefits. On September 10, 2010, the claims administrator denied a request for additional
temporary total disability benefits.
1
The Office of Judges reversed the claims administrator’s September 10, 2010, decision
and granted Mr. Bertrand temporary total disability benefits through September 24, 2010, the
date of an independent medical evaluation by Dr. Hennessey. On appeal, Mr. Bertrand asserts
that his temporary total disability benefits were wrongfully terminated, and as such, he is entitled
to temporary total disability benefits through at least November 29, 2010, and thereafter as
substantiated by medical evidence. On September 24, 2010, Dr. Hennessey evaluated Mr.
Bertrand and found no evidence of a residual lumbar strain, and that he was able to return to
work with temporary restriction to light duty.
The Office of Judges concluded that the medical evidence of record established that Mr.
Bertrand was entitled to temporary total disability benefits through September 24, 2010. Under
West Virginia Code § 23-4-7a (2005), temporary total disability benefits are suspended at the
earliest of: (a) information that the claimant has reached his/her maximum degree of medical
improvement; or (b) has been released to return to work; or (c) has actually returned to work.
The Office of Judges noted that the medical evidence in this case is problematic due to gaps in
treatment by the treating physician, Dr. Kovalick. However, the Office of Judges found that Dr.
Hennessey’s September 24, 2010, report established that Mr. Bertrand had reached maximum
medical improvement, and was released to return to work. Thus, Mr. Bertrand is entitled to
temporary total disability benefits through September 24, 2010. The Board of Review reached
the same reasoned conclusions in its June 10, 2011, Order. 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 19, 2013
CONCURRED IN BY:
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Chief Justice Brent D. Benjamin, Not Participating
2