STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
May 22, 2013
RORY L. PERRY II, CLERK
JOHN K. SHACKLEFORD, SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 11-1178 (BOR Appeal No. 2045485)
(Claim No. 2008030728)
ORKIN, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner John K. Shackleford, by J. Robert Weaver, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Orkin, Inc., by H. Dill Battle III, its
attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated July 21, 2011, in which
the Board affirmed a December 15, 2010, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s November 2, 2009, and
December 29, 2009, decisions 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. Shackleford was working for Orkin, Inc. when he injured his right hip and lower
back when he fell down some steps. The claim was held compensable for contusion of the right
hip, lumbar sprain/strain, and sprain/strain of the right hip. On November 2, 2009, the claims
administrator closed the claim for temporary total disability benefits based on the independent
medical evaluation by Dr. Grady on September 14, 2009, which found that Mr. Shackleford had
reached maximum medical improvement. On December 29, 2009, the claims administrator again
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closed the claim for temporary total disability benefits because no medical evidence had been
received indicating that Mr. Shackleford remained temporarily and totally disabled.
The Office of Judges affirmed the claims administrator’s decisions, and held that the
preponderance of the evidence established that Mr. Shackleford was no longer entitled to
temporary total disability benefits. On appeal, Mr. Shackleford argues that his testimony along
with the medical evidence establishes that he remained temporarily and totally disabled through
March 8, 2010. Orkin, Inc. maintains that the closure of the claim for temporary total disability
benefits was supported by the reliable evidence because Mr. Shackleford had reached maximum
medical improvement.
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 concluded that the evidence established that Mr.
Shackleford had reached maximum medical improvement at the time of Dr. Grady’s September
14, 2009, independent medical evaluation. It also noted that no viable suggestions had been
offered regarding modalities of treatment for Mr. Shackleford’s complaints of pain. The Office
of Judges concluded that any treatment past that point has been either palliative in nature or
ineffective in demonstrating improvement in Mr. Shackleford’s condition. Thus, the decision to
close the claim for temporary total disability benefits was correct. The Board of Review reached
the same reasoned conclusions in its decision of July 21, 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: May 22, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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