STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

November 29, 2016 STEVEN CHRISTENSEN, RORY L. PERRY II, CLERK 

Claimant Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 16-0091	 (BOR Appeal No. 2050598) 

(Claim No. 2013005932) 

IVS HYDRO, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Steven Christensen, by Patrick Maroney, his attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. IVS Hydro, Inc., by Lisa Warner 

Hunter, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated January 5, 2016, in 

which the Board affirmed a June 8, 2015, Order of the Workers’ Compensation Office of Judges. 

In its Order, the Office of Judges affirmed the claims administrator’s October 10, 2014, decision 

closing Mr. Christensen’s claim for workers’ compensation benefits on a temporary total 

disability basis. 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. Christensen injured his left elbow on August 7, 2012, while manipulating a large, 

high-pressure water hose. He initially sought treatment in the emergency department of 

Charleston Area Medical Center’s Teay’s Valley Hospital on August 18, 2012, where he was 

diagnosed with acute left lateral epicondylitis. His application for workers’ compensation 

benefits was subsequently held compensable for lateral epicondylitis of the left elbow. 

Additionally, Mr. Christensen received temporary total disability benefits from August 18, 2012, 

through August 23, 2012, from October 8, 2012, through October 22, 2012, and from July 11, 

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2013, through September 8, 2014. On September 4, 2014, Jack Steel, M.D., Mr. Christensen’s 

treating physician, released him to return to work at full duty as of September 8, 2014. On 

October 10, 2014, the claims administrator closed Mr. Christensen’s claim on a temporary total 

disability basis. Paul Bachwitt, M.D., performed an independent medical evaluation on 

December 4, 2014, and authored a report memorializing his findings on December 9, 2014. Dr. 

Bachwitt determined that Mr. Christensen has reached maximum medical improvement with 

respect to the compensable injury. Additionally, he noted that Mr. Christensen has returned to 

work at full duty. Dr. Bachwitt then opined that the claims administrator properly closed the 

claim on a temporary total disability basis. 

In its Order affirming the October 10, 2014, claims administrator’s decision, the Office of 

Judges held that because Mr. Christensen was released to return to work prior to the termination 

of his temporary total disability benefits, the claims administrator’s closure of the claim on a 

temporary total disability basis was proper. The Board of Review affirmed the reasoning and 

conclusions of the Office of Judges in its decision dated January 5, 2016. On appeal, Mr. 

Christensen requests an award of temporary total disability benefits from October 24, 2012, 

through July 10, 2013.1 

West Virginia Code § 23-4-7a (2005), provides 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, 

Dr. Steel released Mr. Christensen to return to work at full duty approximately one month prior 

to the claims administrator’s closure of the claim on a temporary total disability basis. The Office 

of Judges further noted that Dr. Bachwitt determined that Mr. Christensen has reached maximum 

medical improvement. Additionally, the Office of Judges noted that Dr. Bachwitt is of the 

opinion that the claims administrator properly closed the claim on a temporary total disability 

basis. The Office of Judges then concluded that pursuant to West Virginia Code § 23-4-7a, the 

claim was properly closed by the claims administrator on October 10, 2014, because Mr. 

Christensen was released to return to work by his treating physician more than one month prior 

to the closure of the claim. We agree with the reasoning and conclusions of the Office of Judges, 

as affirmed by the Board of Review. 

In Christensen v. IVS Hydro, Inc., No. 15-0046 (W.Va. Supreme Court, October 7, 

2015)(memorandum decision), Mr. Christensen was granted temporary total disability benefits 

from August 18, 2012, through August 23, 2012, and from October 8, 2012, through October 22, 

2012. However, he raised the identical argument set forth in the instant appeal. In Appeal No. 

15-0046, we determined that Mr. Christensen failed to demonstrate that he is entitled to 

temporary total disability benefits from October 24, 2012, through July 10, 2013. As we have 

already rendered a decision on the merits of the sole argument raised by Mr. Christensen in the 

instant appeal, we will not address his argument in our decision. We further note that in his brief, 

Mr. Christensen’s attorney did not address the sole issue presently before this Court, namely the 

closure of his claim on a temporary total disability basis. 

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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: November 29, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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