STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

September 15, 2015 

RORY L. PERRY II, CLERK 

JAMES HAWLEY, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 14-1316	 (BOR Appeal No. 2049556) 

(Claim No. 2013013340) 

WHEELING LINEN SERVICE, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner James Hawley, by William Gallagher, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. Wheeling Linen Service, Inc., by Lisa 

Warner Hunter, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated November 25, 2014, in 

which the Board affirmed a June 9, 2014, Order of the Workers’ Compensation Office of Judges. 

In its Order, the Office of Judges affirmed the claims administrator’s September 5, 2013, 

decision closing Mr. Hawley’s claim for temporary total disability benefits. The Office of Judges 

also affirmed the claims administrator’s September 11, 2013, decision denying Mr. Hawley’s 

request for vocational rehabilitation 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. Hawley injured his left shoulder and cervical spine on November 12, 2012, while 

lifting a very heavy bag of soiled linen. The claims administrator’s decision holding the claim 

compensable is not contained in the evidentiary record. However, it appears that the claim has 

been held compensable for sprains/strains of the cervical spine and left shoulder. 

1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

On July 17, 2013, ChuanFang Jin, M.D., performed an independent medical evaluation. 

In addition to the compensable cervical and left shoulder sprains, she diagnosed Mr. Hawley 

with pre-existing degenerative disease of the cervical spine. She then opined that Mr. Hawley has 

reached maximum medical improvement in relation to the compensable injuries. Dr. Jin noted 

that although Mr. Hawley continues to experience some cervical spine pain, he expressed a 

desire to return to work. She therefore released him to return to work at modified duty with the 

following work restrictions: lifting no more than fifteen pounds, carrying no more than five 

pounds, and avoidance of prolonged sitting. On August 23, 2013, Wheeling Linen Service, Inc., 

wrote to Mr. Hawley indicating that a light duty position was available for him consistent with 

the restrictions imposed by Dr. Jin. 

On September 5, 2013, the claims administrator closed Mr. Hawley’s claim on a 

temporary total disability basis. On September 11, 2013, the claims administrator denied Mr. 

Hawley’s request for authorization of vocational rehabilitation benefits. Wheeling Linen Service, 

Inc., sent a second letter to Mr. Hawley on November 26, 2013, indicating that although he was 

released to return to work in August of 2013 and actually returned to work on September 3, 

2013, with full accommodation of the restrictions imposed by Dr. Jin, Mr. Hawley stated that he 

could not work at all after working at modified duty for approximately one hour, and that Mr. 

Hawley had had no further contact with Wheeling Linen Service, Inc. On February 13, 2014, Mr. 

Hawley was deposed. He testified that he was unable to perform the modified duty position 

offered by Wheeling Linen Service, Inc., because it caused him to experience severe neck pain 

with resulting numbness in his legs as it required him to stand with his head downturned in order 

to feed napkins through a mechanical ironer. 

In its Order affirming the September 5, 2013, and September 11, 2013, claims 

administrator’s decisions, the Office of Judges held that Mr. Hawley has failed to demonstrate 

that he remained temporarily totally disabled at the time of the claims administrator’s closure of 

the claim for temporary total disability benefits and further held that Mr. Hawley has failed to 

show that he is entitled to vocational rehabilitation benefits in the instant claim. The Board of 

Review affirmed the reasoning and conclusions of the Office of Judges in its decision dated 

November 25, 2014. On appeal, Mr. Hawley asserts that his return to work on September 3, 

2013, should be classified as an unsuccessful trial return to work; that Wheeling Linen Service, 

Inc., was unable to accommodate the work restrictions imposed by Dr. Jin; and that he is 

therefore entitled to vocational rehabilitation benefits. Further, Mr. Hawley asserts that the 

claims administrator, Office of Judges, and Board of Review erred in closing his claim on a 

temporary total disability basis. 

West Virginia Code § 23-4-7a (2014) states that temporary total disability benefits are 

not payable after a claimant has reached maximum medical improvement, is released to return to 

work, or actually returns to work, whichever occurs first. As was noted by the Office of Judges, 

pursuant to the statute, Dr. Jin’s July 17, 2013, finding that Mr. Hawley has reached maximum 

medical improvement and her decision to release him to return to work terminated his eligibility 

for temporary total disability benefits. 

2 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Further, the Office of Judges determined that Mr. Hawley’s argument that his return to 

work was a trial return to work governed by West Virginia Code § 23-4-7b (2014) is 

unpersuasive. The Office of Judges found that the evidence of record establishes that Wheeling 

Linen Service, Inc., provided Mr. Hawley with a light duty position consistent with the work 

restrictions imposed by Dr. Jin. The Office of Judges further found that the record is devoid of 

any medical evidence corroborating Mr. Hawley’s assertion that he was physically unable to 

perform the light duty position provided by Wheeling Linen Service, Inc. The Office of Judges 

concluded that in the absence of corroborating medical evidence, Mr. Hawley’s assertion that he 

was unable to perform the light duty position provided by Wheeling Linen Service, Inc., is not 

credible. 

Regarding Mr. Hawley’s request for vocational rehabilitation benefits, the Office of 

Judges noted that Mr. Hawley argues that he is eligible for vocational rehabilitation pursuant to 

West Virginia Code § 23-4-9 (2014) based upon his assertion that Wheeling Linen Service, Inc., 

is unable to accommodate the work restrictions imposed by Dr. Jin. The Office of Judges found 

that Mr. Hawley’s argument is unpersuasive because the evidentiary record clearly shows that 

Wheeling Linen Service, Inc., did provide him with a light duty position fully compliant with the 

restrictions imposed by Dr. Jin. We agree with the reasoning and conclusions of the Office of 

Judges as affirmed by 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: September 15, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

3