### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED MURRAY AMERICAN ENERGY, INC., May 21, 2018

EDYTHE NASH GAISER , CLERK 

### Employer Below, Petitioner SUPREME COURT OF APPEALS

OF WEST VIRGINIA 

### vs.) No. 18-0056 (BOR Appeal No. 2015028184) (Claim No. 2052110)

JOHN VINESKY, Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner, Murray American Energy, Inc., by, Denise D. Pe ntino and Aimee M. Stern, its attorneys, appeals the decision of the West Vi rginia Workers’ Compensation Board of Review. John Vinesky, by William C. Gallagher, his attorney, filed a timely response.

The issue on appeal is vocational rehabilitation. On February 14, 2017, the claims

administrator closed the claim for vocational reha bilitation services and benefits. The Office of Judges reversed the claims administrator in its July 24, 2017, Order. The Order was affirmed by the Board of Review on December 28, 2017. The Court has carefully reviewed the records, written arguments, and appendi ces 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 deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds that the Board of Review’s decision is based upon material misstatements and mischaracterizations of the evidentiary record. This case satisfies the “limited circumstances” requirement of Ru le 21(d) of the Rules of Appella te Procedure and is appropriate

for a memorandum decision ra ther than an opinion.

Mr. Vinesky, a rib pinner, injured his left kne e on April 13, 2015, when he injured his left knee after stepping on a rock in the mine. He was diagnosed with a knee sprain. The claims administrator held the claim compensable for a spra in of an unspecified s ite of the knee and leg on May 15, 2015. On June 19, 2015, Mr. Vinesky underwent a left knee arthroscopic partial medial meniscectomy. He was released to re turn to full duty work on August 10, 2015.

Mr. Vinesky worked for one day before seek ing treatment for his left knee, which he injured after stepping on a pile of loose coal. Mr. Vinesky was di agnosed with left knee pain due

1to possible sprain. On December 9, 2015, Mr. Vine sky underwent a left kn ee arthroscopic lateral release. The pre-operative diagnosis was possibl e recurrent medial meniscus tear and lateral patellar compression syndrome. The post-operative diagnosis was left knee stable lateral meniscus tear and lateral patellar compressi on syndrome. Mr. Vinesky underwent a functional capacity evaluation on April 5, 2016, which showed he could pe rform light physical demand level jobs. His physical limitations presented a barrier to return to work unless modifications could be made. Mr. Vinesky had some minimal range of motion and strength deficits in the left knee but was mainly limited by pain with weight bearing activities. Mr . Vinesky’s permanent work restrictions included occasional lifting and carrying up to twenty pounds; sitting up to eight hours per day; standing, walking, or driving up to one hour per day; and no climbing, crawling, or squatting.

Erin Saniga, M.Ed., CRC, LPC, performed a vocational evaluation on July 11, 2016. She noted Mr. Vinesky complained of severe swelling of the left knee, severe left knee pain, and difficulty going up and down steps. Mr. Vinesky wore a brace and walked with one crutch. He

had been advised to wean himself off of the crutch, but had not b een able to do so. Mr. Vinesky reported that he had taken the civil service test for a maintenance position and that he had applied for front desk jobs at local hotels. Ms. Saniga concluded that Mr. Vinesky needed to explore his ability to transition to sedentary wor k. Mr. Vinesky expressed an interest in obtaining unemployment benefits and was told he coul d not receive rehabil itation benefits and unemployment benefits at the same time. He also expressed an interest in obtaining a CDL. Ms. Saniga advised this was beyond the restric tions imposed. She recommended a period of concurrent job retention and vocational explora tion during which Mr. Vine sky could find jobs in the local labor market. She explained that he woul d be required to participate eight hours a day in vocational rehabilitation activities, as he had been released to return to work for eight hours a day.

The rehabilitation plan deve loped by Ms. Saniga included thirty days of vocational exploration, job retention, and rehabilitation temporary total di sability. Mr. Vinesky started computer training and participated in thirty days of job search. The vocational plan was extended in December of 2016 and January of 2017. In a Ja nuary 12, 2017, report, Ms. Saniga noted that Mr. Vinesky had applied for a number of positions for which he was not qualified or that were not within his physical capabilities. These in cluded a help desk position, a business manager position, cardiology technical assistant, and di etary aide. On February 9, 2017, Ms. Saniga

recommended no further vocational rehabilitati on services. On February 14, 2017, the claims

administrator closed the claim for vocational re habilitation benefits as no evidence had been

received to substantiate the c ontinuation of benefits and no furt her vocational rehabilitation had

been recommended.

Mr. Vinesky testified via deposition on April 21, 2017, that he understood the rehabilitation plan and worked with Ms. Saniga on finding j obs. He was required to look for jobs, which he did in person and online. He was offered a job earning $2.00 per hour, which Ms. Saniga said was not acceptable due to the low wage . She also advised him that many of the jobs for which he was applying were not within his p hysical restrictions. Mr. Vinesky also bid on jobs at the mining company through the union, but due to his low seniority he was not able to get one

2of those jobs. The mining jobs usually were not j obs that were within hi s physical restrictions. He called some of the employers fo r jobs he applied to outside of the mines to see if the job was within his physical restrictions . He applied for jobs for which he thought he coul d suffer through the pain, even if they were outsi de of his physical capab ilities. He was never really given a firm job offer. He requested authorization through th e rehabilitation plan to enroll in a Microsoft Applications course at West Virg inia Northern Community College.

On May 2, 2017, Ms. Saniga testified via de position. She had identified 210 occupations that would be appropriate for Mr. Vinesky in relation to his education, background, work experience, and physical restricti ons. Mr. Vinesky told her he had no computer skills. Therefore, she recommended Mr. Vinesky take a basic com puter course to get him familiar with the keyboard and to enable him to become familiar w ith the use of the computer and its programs. She thought this would benefit him as he searched for jobs but also with the jobs themselves. Mr. Vinesky participated in the job exploration portion of his plan from July to November. This is the portion of the program that generally lasts thirty days. It lasted longer in his case in order to allow time for Mr. Vinesky to take the basi c computer class. In her opinion, Mr. Vinesky obtained the basic computer skills he needed for employment from this class. Mr. Vinesky then participated in the job search portion of the plan for ninety days. Ms. Saniga had concerns about the type of jobs for which Mr . Vinesky applied as they were too physically demanding. There were also some position for which he was not qu alified in terms of ed ucation and training. Ms. Saniga opined that the Microsoft Applications cl ass Mr. Vinesky wanted to take would not alter his employability. This course was designed toward facilitating employment in a business office environment. She also opined that the way he presented himself to employers was negatively impacting his ability to obtain a job.

In its July 24, 2017, Order, the Office of Judges found the closure of the claim for vocational benefits was not appropriate as no evidence had been submitted to indicate Mr. Vinesky was not cooperating, was not participating, or failed to make satisfactory progress toward the completion of his plan. It also found Ms. Saniga’s opinion that Mr. Vinesky was able to seek and apply for appropriate available employ ment on his own did not mean that his benefits

should be terminated and was inconsistent with the hierarchy of rehabili tation services. The goal

of the rehabilitation services wa s to return Mr. Vinesky to em ployment. The Office of Judges

determined that the closure of the claim penalized the “coopera ting and compliant” claimant who was seeking employment but had not found it yet. It also determined that “ it seemed logical that

rehabilitation services would cont inue to advise and help Mr. Vi nesky in finding appropriate jobs to apply for until he is employed; or if no job is offered, to move onto the next point of the Hierarchy which would be employ ment by a new employer with on the job training”. Therefore, the Office of Judges reversed the claims admini strator’s decision and reinstated the vocational

rehabilitation services and benefits. The Boar d of Review adopted th e findings of fact and conclusions of law of the Office of Judges and affirmed its Order on December 28, 2017.

After review, we disagree with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review. The claims administrator closed the claim for vocational

benefits as no evidence had been received to substantiate the c ontinuation of benefits and no

further vocational rehabilitation had been recomm ended. However, West Virginia Code of State

3Rules § 85-15-4 establishes seve n priorities that must be fo llowed in providing rehabilitation services. The evidentiary record does not contai n any findings regarding where Mr. Vinesky was placed on the hierarchy at the conclusion of hi s rehabilitation services, or why Ms. Saniga recommended ending the services. Additi onally, the Office of Judges reasoning that

rehabilitation services should be continued w ithout any findings of fact in relation to the hierarchy was not proper.

For the foregoing reasons, we find that the de cision of the Board of Review is based upon

material misstatements and mischaracterizations of the evidentiary record. Therefore, the

decision of the Board of Review is reversed an d remanded with instruc tions for the Office of Judges to determine whether Mr. Vinesky is entitle d to additional vocational rehabilitation using the seven-step hierarchy of vocational rehabilitation.

Reversed and Remanded.

ISSUED: May 21, 2018

CONCURRED IN BY: Chief Justice Margaret L. Workman

Justice Robin J. Davis Justice Allen H. Loughry II

Justice Elizabeth D. Walker

DISSENTING : Justice Menis E. Ketchum

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