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### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

VIRA D. ROSE, Claimant Below, Petitioner

vs.) No. 12-0947 (BOR Appeal No. 2047004)

(Claim No. 2007215893)

AMFIRE, LLC, Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Vira D. Rose, by Jerome J. McFadden, he r attorney, appeals the decision of the West Virginia Workers’ Compensation Board of Review . Amfire, LLC, by Robert J. Busse, its attorney, filed a timely response.

This appeal arises from the Board of Review’s Final Order dated July 17, 2012, in which the Board affirmed a February 13, 2012, Order of th e Workers’ Compensation Office of Judges. In its Order, the Office of Judges affirmed the cla ims administrator’s December 22, 2010, decisions which denied a request for retroactive au thorization for physical therapy and a request to reopen the claim for temporary total disability benefits. The Court has carefully reviewed the records, written arguments, and appendices containe d 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 decisio nal process would not be significantly aided by oral argument. Upon consideration of the standar d 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. Rose, a belt man and fire boss, injured her le ft shoulder and knee in the course of her employment when she tripped and fell down a flight of stairs. The claim was held compensable for sprain of the neck; sprain of the knee and leg; and sprain of the shoulder and upper arm. In his treatment note on September 10, 2007, Robert Kr opac, M.D., diagnosed Ms. Rose with a partial rotator cuff tear and a sprain of the left knee superimposed on degenerative changes. He FILED

March 10, 2014

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

recommended surgery to treat the shoulder condition . Ms. Rose declined to have surgery at that time. She returned to work on February 26, 2008.

Ms. Rose underwent an independent medical evaluati on with Joseph Grady, M.D., on March 18, 2008. He determined that she had reached maximum medical improvement for her compensable knee and neck conditions. He noted that a rating for the left shoulder should be withheld pending an MRI and reevaluation. Ms. Rose injured her back on June 23, 2009, and has not returned to any type of employment since the in jury. The claims administrator denied a request on December 22, 2010, to reopen the claim f or temporary total disability benefits based upon the fact that Ms. Rose was receiving Social Se curity retirement benefits.

The Office of Judges affirmed the decision of the claims administrator in its February 13, 2012, Order. Ms. Rose argued that though she is cur rently collecting Social Security retirement benefits, she has not retired, nor was that her int ent. The Office of Judges determined that West Virginia Code of State Rules § 85-1-5.2 (2006), pro vides that if an individual retires he or she is disqualified from receiving temporary total disabil ity benefits unless the application for benefits was filed prior to retirement. He or she is also ba rred from reopening a claim for temporary total disability benefits. The Office of Judges concluded that Ms. Rose had in fact retired and was therefore ineligible for temporary total disability benefits.

The Board of Review adopted the findings of fact an d conclusions of law of the Office of Judges and affirmed its Order in its July 17, 2012, decision. However, the Board of Review declined to adopt the Office of Judges’ analysis re garding retirement. It found that Ms. Rose injured her shoulder in January of 2007. She return ed to full duty in February of 2008. She injured her back on June 23, 2009, and failed to re turn to work following that injury. The Board of Review ultimately concluded that Ms. Rose failed to meet her burden of proof to establish that she is entitled to a reopening of her claim for tem porary total disability benefits.

This Court agrees with the reasoning and conclusion s of the Board of Review. Ms. Rose returned to work on full duty following her compens able shoulder injury. She continued to work until she injured her back on June 23, 2009. After that injury, she did not return to any type of employment. Because the decision of the Board of Re view is supported by the evidentiary record, it is hereby affirmed.

For the foregoing reasons, we find that the decisi on of the Board of Review is not in clear violation of any constitutional or statutory provis ion, 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: March 10, 20143



### 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