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 STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

JOHN VINESKY,

Claimant Below, Petitioner

vs.) No. 19-1053 (BOR Appeal No. 2054293)

(Claim No. 2015028184)

 

MURRAY AMERICAN ENERGY, INC., 

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner John Vinesky, by Counsel William C. Gallagher, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review (“Board of Review”). Murray American 

Energy, Inc., by Counsel Denise D. Pentino and Aimee M. Stern, filed a timely response.

The issue on appeal is vocational rehabilitation services. The claims administrator closed 

the claim for vocational rehabilitation services on January 4, 2019. The Workers’ Compensation 

Office of Judges (“Office of Judges”) affirmed the decision in its May 30, 2019, Order. The Order 

was affirmed by the Board of Review on October 21, 2019.

The Court has carefully reviewed the records, written arguments, and appendices contained 

in the briefs, and the case is mature for consideration. 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. Vinesky, a coal miner, injured his left knee when he stepped on a rock at work on April 

13, 2015. A Functional Capacity Evaluation was performed on April 5, 2016, and indicated Mr. 

Vinesky could perform 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. 

FILED

December 11, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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An April 26, 2016, work/activity status report indicates Mr. Vinesky had left knee pain and 

a recurrent medical meniscus tear. He was able to perform limited duty. The claims administrator 

referred Mr. Vinesky for a rehabilitation evaluation on June 3, 2016. A closure report was prepared 

on February 9, 2017, indicating that no further vocational rehabilitation services were 

recommended. Based on Mr. Vinesky’s vocational history and physical capabilities, he was 

capable of seeking and applying for employment. No formal training was required. The claim was 

closed for vocational rehabilitation services on February 14, 2017.

Mr. Vinesky testified in an April 21, 2017, deposition that he understood the rehabilitation 

plan and that he worked with Erin Saniga, M.Ed., CRC, LPC, to find jobs. He was required to look 

for jobs, which he did in person and online. Mr. Vinesky bid on jobs through the union but due to 

his low seniority he was not able to get one of those jobs. Also, the jobs usually were not within 

his physical restrictions. He called some of the employers for 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 could suffer through the pain, even if they were outside of his physical capabilities. Mr. Vinesky 

stated that he was never really given a firm job offer. He requested authorization through the 

rehabilitation plan to enroll in a technology certificate course at West Virginia Northern 

Community College. 

Ms. Saniga testified in a May 2, 2017, deposition that she identified 210 occupations that 

would be appropriate for Mr. Vinesky in relation to his education, background, work experience, 

and physical restrictions. Mr. Vinesky told her he had no computer skills. Therefore, she 

recommended Mr. Vinesky take a basic computer course to get him familiar with the keyboard 

and to enable him to become familiar with the use of the computer and its programs. She thought 

this would benefit him in looking for jobs as well as in 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 basic 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 

positions for which he was not qualified in terms of education and training. Ms. Saniga opined that 

a technology certificate that Mr. Vinesky wanted to obtain 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. 

Vocational rehabilitation services were reinstated per an August 3, 2017, Office of Judges’ 

Order on August 3, 2017. An August 25, 2017, rehabilitation plan by Allegiant indicates Mr. 

Vinesky was to complete a Computer Information Technology Certificate program from August 

28, 2017, through December 31, 2017. Mr. Vinesky agreed to the plan. The plan was extended to 

December 15, 2018. A January 2, 2019, closure report by Allegiant indicates Mr. Vinesky had 

completed the training program and the claim was therefore closed for vocational rehabilitation 

services. It was noted that in October of 2018, Mr. Vinesky expressed interest in pursuing an 

Associate Degree in Microsoft Applications, which would require an additional thirty credits. Mr. 
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Vinesky was only taking twelve credits per semester at $2,788 per semester. An associate degree 

would require an additional three semesters to complete. Mr. Vinesky only had $4,900 left out of 

his lifetime rehabilitation limit. Through his certificate program, Mr. Vinesky had become 

qualified for many jobs. It was opined that Mr. Vinesky required no further training to obtain 

gainful employment. The claims administrator closed the claim for vocational rehabilitation 

services on January 4, 2019.

On March 7, 2019, Mr. Vinesky testified in a deposition that he had applied for fifty to 

sixty jobs and had yet to find employment. Ms. Saniga also testified in a deposition that day. She 

stated that prior to completing vocational there were 210 occupations that would be appropriate 

for Mr. Vinesky in relation so his education, background, work experience, and physical 

restrictions. Mr. Vinesky was still qualified for those positions. Completion of the certificate 

program made him qualified for 1,894 occupations. Ms. Saniga opined that Mr. Vinesky was 

provided sufficient vocational training to obtain gainful employment. She stated that Mr. Vinesky 

does not require an associate degree to find a job. Christy Farnsworth, Director at the Academic 

Support Center of WV Northern Community College, also testified that day. She asserted that an 

associate degree would make Mr. Vinesky more employable. She stated that her research showed 

few jobs for Mr. Vinesky’s technology certificate. 

The Office of Judges affirmed the claims administrator’s closure of the claim for 

rehabilitation services on May 30, 2019. It found that Mr. Vinesky’s rehabilitation goal was to 

return to suitable gainful employment. To that end, he obtained a certificate in Computer 

Information Technology. Mr. Vinesky testified that he had applied for fifty to sixty jobs with no 

job offers. Ms. Farnsworth testified that an associate degree would make Mr. Vinesky more 

employable. The Office of Judges determined that Mr. Vinesky had received approximately two 

years of vocational services and had used the majority of his financial allotment. Ms. Saniga 

testified that Mr. Vinesky’s certificate made him qualified for 1,894 jobs as compared to the 210 

he was qualified for prior to training. The Office of Judges found that Ms. Saniga’s opinion was 

more credible than that of Ms. Farnsworth, who found far fewer jobs from her search. It was 

unclear what parameters Ms. Farnsworth used. The Office of Judges concluded that Mr. Vinesky 

had received sufficient vocational rehabilitation services to return to gainful employment. The 

Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and 

affirmed its Order on October 21, 2019. 

After review, we agree with the reasoning and conclusions of the Board of Review as 

affirmed by the Office of Judges. Though Mr. Vinesky wishes to further his education, he has 

received sufficient vocational rehabilitation services to become gainfully employed.

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. 
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 Affirmed.

ISSUED: December 11, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Elizabeth D. Walker 

Justice Evan H. Jenkins

Justice John A. Hutchison

DISSENTING:

Justice Margaret L. Workman