STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

July 11, 2013 

RORY L. PERRY II, CLERK 

AMY M. YOUNG, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 11-1501	 (BOR Appeal No. 2045695) 

(Claim No. 2010127065) 

LOVED ONES IN-HOME CARE, LLC, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Amy M. Young, by Robert M. Williams, her attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Loved Ones In-Home Care, LLC, 

by Lisa A. Warner Hunter, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated September 29, 2011, in 

which the Board reversed a March 2, 2011, Order of the Workers’ Compensation Office of 

Judges and reinstated the claims administrator’s August 17, 2010, decision. In its Order, the 

Office of Judges reversed the claims administrator’s August 17, 2010, decision closing Ms. 

Young’s claim for temporary total disability benefits, and denying authorization for a TENS unit 

and additional physical therapy. 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 that the Board of Review’s decision is based upon a material 

misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited 

circumstances” requirement of Rule 21(d) of the Revised Rules of Appellate Procedure and is 

appropriate for a memorandum decision rather than an opinion. 

Ms. Young suffered an injury while moving a patient when working for Loved Ones InHome Care, LLC. The claim was held compensable for “strain lumbar region of the back,” and 

Ms. Young was granted temporary total disability benefits beginning on February 18, 2010, and 

lasting until further notice. On August 4, 2010, the claims administrator suspended the claim for 

temporary total disability benefits “due to suspicious behavior” and relied upon the “procedures 

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for suspension for claimant abuse,” set forth in West Virginia Code of State Rules § 85-1-14.1­

14.4 (2006). The Office of Judges reversed the claims administrator’s decision dated August 17, 

2010, and ordered the claims administrator to reinstate payment of temporary total disability 

benefits since the date of suspension, August 4, 2010, to December 10, 2010, as substantiated by 

appropriate medical evidence, and also ordered the authorization of a TENS unit and continued 

physical therapy. 

The Board of Review reversed the Office of Judges’ Order and reinstated the claims 

administrator’s decision dated August 17, 2010, in reliance on Dr. Mir’s findings that Ms. Young 

has reached maximum medical improvement, and that a TENS unit and additional physical 

therapy are not reasonable or necessary to treat the compensable injury. On appeal, Ms. Young 

disagrees and asserts that she should not be denied temporary total disability benefits on the basis 

of suspicious behavior because there was no notice of it being suspended and her maximum 

medical improvement status is not at issue. She further asserts that Dr. Mir’s opinion is not as 

credible as that of Dr. Jarrell because Dr. Mir is hired exclusively by employers throughout West 

Virginia to defend their workers’ compensation claims. Loved Ones In-Home Care, LLC 

maintains that Ms. Young failed to establish that she is entitled to any additional temporary total 

disability benefits, and further argued the medical evidence established that Ms. Young sustained 

only a lumbar sprain/strain and did not require any additional treatment outside the guidelines set 

forth in West Virginia Code of State Rules § 85-20 (2006). 

The Board of Review concluded that Ms. Young is no longer entitled to temporary total 

disability benefits, authorization of a TENS unit, and additional physical therapy because she has 

reached maximum medical improvement. However, the Board of Review failed to take notice 

that Ms. Young’s temporary total disability benefits were suspended on August 4, 2010, even 

though she was not found to have reached maximum medical improvement until September 22, 

2010. The Office of Judges erred in continuing Ms. Young’s temporary total disability benefits 

after she had reached maximum medical improvement. Therefore, Ms. Young is entitled to 

temporary total disability benefits from August 4, 2010, until September 22, 2010, when she 

reached maximum medical improvement. The Board of Review was partially correct in reversing 

the Office of Judges’ Order and reinstating the claims administrator’s decision of denying 

additional physical therapy and a TENS unit, and the Board of Review is partially wrong in 

denying Ms. Young temporary total disability benefits. Therefore, the Board of Review is 

affirmed in part in the denial of the TENS unit and the additional physical therapy and reversed 

in part on the denial of temporary total disability benefits and granted temporary total disability 

benefits from August 4, 2010, until September 22, 2010. 

Affirmed in Part and Reversed in Part. 

ISSUED: July 11, 2013 

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CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Robin J. Davis 

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