STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

October 21, 2014 

RORY L. PERRY II, CLERK 

BETH DALEY, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 13-0866 (BOR Appeal No. 2048159) 

(Claim No. 2012014076) 

PROCAREERS, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Beth Daley, pro se, appeals the decision of the West Virginia Workers’ 

Compensation Board of Review. ProCareers, Inc., by Steven K. Wellman, its attorney, filed a 

timely response. 

This appeal arises from the Board of Review’s Final Order dated July 26, 2013, in which 

the Board affirmed a January 29, 2013, Order of the Workers’ Compensation Office of Judges. 

In its Order, the Office of Judges affirmed the claims administrator’s July 14, 2011, 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. 

Ms. Daley worked as a homemaker for ProCareers, Inc. On December 28, 2010, Ms. 

Daley injured her lower back while assisting a client. The claims administrator held the claim 

compensable. Ms. Daley then came under the care of Robert Lowe, M.D., who diagnosed her 

with a lumbar sprain. Ms. Daley was treated with physical therapy, and following this treatment, 

Dr. Lowe determined that she could return to light duty work. Dr. Lowe found that she should be 

restricted from lifting over twenty-five pounds and pushing or pulling over fifteen pounds. Dr. 

Lowe then issued a second letter on June 22, 2011, in which he stated that Ms. Daley did not 

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need any additional physical therapy. Dr. Lowe again stated that Ms. Daley could return to work. 

Dr. Lowe also determined that Ms. Daley had 5% whole person impairment related to her lumbar 

sprain. On July 14, 2011, the claims administrator closed the claim for temporary total disability 

benefits based on Dr. Lowe’s June 22, 2011, opinion. The claims administrator’s decision stated 

that Ms. Daley was offered light duty work that accommodated her restrictions, but she had 

refused suitable employment offers. Following the decision, Teresa Jones, the service 

coordinator for ProCareers, Inc., stated in an affidavit that she had contacted Ms. Daley on three 

separate occasions about light duty employment opportunities. Ms. Jones stated that Ms. Daley 

declined these job opportunities. On January 29, 2013, the Office of Judges affirmed the claims 

administrator’s decision. The Board of Review affirmed the Order of the Office of Judges on 

July 26, 2013, leading Ms. Daley to appeal. 

The Office of Judges concluded that Ms. Daley had reached her maximum degree of 

medical improvement and was not entitled to any additional temporary total disability benefits. 

In reaching this determination, the Office of Judges relied on the fact that Dr. Lowe had released 

Ms. Daley to return to light duty work. The Office of Judges also found that Dr. Lowe’s 

impairment recommendation indicated that he believed she had reached her maximum degree of 

medical improvement. The Board of Review adopted the findings of the Office of Judges and 

affirmed its Order. 

We agree with the conclusion of the Board of Review and the findings of the Office of 

Judges. Ms. Daley has not presented any evidence that she continues to be temporarily and 

totally disabled such that she is entitled to additional temporary total disability benefits. It was 

disputed as to whether ProCareers, Inc., offered Ms. Daley employment which was consistent 

with her work restrictions. Nevertheless, the records and letter of Dr. Lowe, Ms. Daley’s treating 

physician, demonstrate that she had reached her maximum degree of medical improvement with 

respect to her compensable lumbar sprain. Dr. Lowe’s opinion further shows that Ms. Daley was 

capable of returning to work. Ms. Daley has not presented any evidence undermining Dr. Lowe’s 

credibility or challenging his findings. The Office of Judges was within its discretion in relying 

on his opinion. 

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: October 21, 2014 

CONCURRED IN BY: 

Chief Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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