Supreme Court sides with miner in workers' comp case

THE West Virginia Supreme Court has overruled a Workers’ Compensation Board of review decision and ordered the back pay of a mechanic injured at a Consol Energy mine in 2008.

Donna Schmidt

According to legal journal The West Virginia Record, Kelcey Francis Wolfe was a longwall mechanic for an undisclosed Consol operation when he fell while at work on November 10, 2008.

He was pulling a come-along that loosened, resulting in back and right hip injuries.

Wolfe was later diagnosed with multilevel mild degenerative facet anthropathy with lumbar radiculopathy, according to claim documents.

The board of review held on April 28, 2010, that Wolfe’s claim was compensable for strain/sprain of the lumbar and authorized DexPak and methocarbamol.

Wolfe had already undergone surgery on his back at the time of that decision, and had been out of work from November 16, 2008 until March 16, 2009.

He appealed the board’s ruling, but the Office of Judges found the worker had not proved a tie between his missed work and his compensable strain/sprain.

In fact, it found that the time off was due to a herniated disk. The herniation, it said, and surgery for the condition was not compensable.

The Board of Review later affirmed that decision, and Wolfe appealed to the order of the Board of Review to the state high court.

While the comp review board had judged against the worker, the Supreme Court issued a 3-2 majority memorandum July 15 to reserve the decision and ordered back pay to the miner.

“West Virginia Code Section 23-4-1c (2009) provides for the payment of temporary total disability benefits during the healing or recovery period after an injury,” the Record quoted the opinion filing.

“On April 28 2010, Mr Wolfe’s claim was held compensable for lumbar strain/sprain. We believe that evidence of record demonstrates that the need for surgery is related to Mr Wolfe’s compensable injury.

“Mr Wolfe missed work from November 16 2008, until March 16 2009, due to his injury. We find that because Mr Wolfe was absent from work due to his compensable injury that he is entitled to temporary total disability benefits from November 16 2008, until March 16 2009.”

It further stated that the Board’s initial decision was based upon a “material misstatement or mischaracterization of the evidentiary record”

One of the two dissenters in the case, Allen Loughry II, filed his dissent opinion to the court and argued that the claims administrator had allowed the claim to remain open for an extended time to allow Wolfe time to include more evidence on his claim – though, ultimately, nothing was ever submitted.

“The claims administrator, Office of Judges, and Board of Review all correctly found that Mr Wolfe failed to meet his burden of providing evidence to substantiate the continuation of temporary total disability benefits, as it relates to his compensable lumbar sprain injury. Therefore, I dissent,” he wrote, according to the Record.

No case number was made available.

Consol officials did not respond to a request for comment.

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