The opinion
IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
RICHARD HEATH, November 1, 2023
Claimant Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
vs.) No. 23-ICA-334 (JCN: 2016011244) OF WEST VIRGINIA
ALLIANCE COAL, LLC,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Richard Heath appeals the June 29, 2023, order of the Workers’
Compensation Board of Review (“Board”). Respondent Alliance Coal, LLC (“Alliance”)
filed a timely response. 1 Mr. Heath filed a reply. The issue on appeal is whether the Board
erred in affirming the claim administrator’s order which closed the claim for rehabilitation
benefits. 2
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
Mr. Heath was employed as a coal miner for Alliance when, in October of 2015, he
sustained an injury to his left leg and ankle after he was pinned between a rail car and a
mine wall. Mr. Heath presented to the emergency room and was diagnosed with a left ankle
fracture, for which he later underwent surgeries. Over the next two years, the claim
administrator held the claim compensable for fracture of the lower end of the left tibia,
displaced pilon fracture of the left tibia, posttraumatic osteoarthritis of the left ankle, tarsal
tunnel syndrome of the lower left limb, and chronic regional pain syndrome.
In December of 2016, Mr. Heath was found to have reached maximum medical
improvement (“MMI”). As a result, the claim administrator closed the claim for temporary
Mr. Heath is represented by M. Jane Glauser, Esq. Alliance is represented by James
1
W. Heslep, Esq.
The Board’s order also addressed two other claim administrator’s orders.
2
However, those other orders are not the subject of Mr. Heath’s appeal.
1
total disability (“TTD”) benefits. Following resolution of the litigation arising from that
order, the claim administrator determined that Mr. Heath was eligible for vocational
rehabilitation services. On November 8, 2018, Mr. Heath and Erin Saniga, a rehabilitation
counselor, developed and signed a vocational rehabilitation agreement wherein Mr. Heath
agreed to cooperate in the development of a rehabilitation plan and to participate in any
recommended services. However, Mr. Heath subsequently underwent a trial placement of
a spinal cord stimulator, which eventually resulted in a permanent placement of the
stimulator. Ms. Saniga authored a progress report in April of 2019, stating that vocational
rehabilitation services were on hold until the completion of Mr. Heath’s procedures related
to the spinal cord stimulator.
Mr. Heath underwent a functional capacity evaluation (“FCE”) in September of
2019, which indicated that he could return to work at a light physical demand level with
minimal carrying, pushing, and pulling; no lifting over twenty pounds; and no squatting.
On October 23, 2019, Mr. Heath signed another vocational rehabilitation plan with Ms.
Saniga. As part of the plan, Mr. Heath and Ms. Saniga would work on researching the local
job market, preparing a resume, and initiating a job search. Temporary total rehabilitation
(“TTR”) benefits were to be paid from October 23, 2019, through November 13, 2019.
Per a progress report from November of 2019, the rehabilitation plan progressed to
the job search phase. TTR benefits were paid from November 14, 2019, through February
19, 2020. Throughout that time period, Ms. Saniga noted a few occurrences of Mr. Heath
applying for positions that exceeded his capabilities per the FCE. On February 28, 2020,
the claim administrator closed the claim for TTR benefits, stating that the vocational
rehabilitation plan had expired. Mr. Heath protested the order to the Office of Judges
(“OOJ”). Subsequently, in March of 2020, Ms. Saniga completed a progress report,
wherein she indicated that Mr. Heath’s vocational rehabilitation plan had expired on
February 19, 2020, and that an extension of TTR benefits had not been requested. She
noted that, nevertheless, the case remained open because Mr. Heath was interviewing for
positions that he had applied to while under the vocational rehabilitation plan.
By order dated January 13, 2021, the OOJ reversed the claim administrator’s order,
which closed the claim for TTR benefits, and ordered that Mr. Heath’s vocational
rehabilitation services be reinstated. The OOJ reasoned that, per West Virginia Code of
State Rules § 85-15-6, a rehabilitation plan may be terminated upon a showing of good
cause. However, neither Ms. Saniga nor the claim administrator had provided any reason
for terminating Mr. Heath’s vocational rehabilitation plan. While Ms. Saniga had noted a
few instances of Mr. Heath applying for positions beyond his capabilities, the OOJ found
that he was overall compliant with the plan. As such, the OOJ found that there was no
evidence of good cause sufficient to terminate Mr. Heath’s vocational rehabilitation plan.
In addition to reinstating Mr. Heath’s services, the OOJ also ordered that his TTR benefits
be reinstated from the date of last payment and continuing thereafter until such time as
good cause existed to terminate the benefits.
2
On January 22, 2021, the claim administrator acknowledged receipt of the OOJ’s
order and reinstated Mr. Heath’s TTR benefits. Subsequently, on February 1, 2021, Mr.
Heath and Ms. Saniga developed a rehabilitation plan that stated that TTR benefits would
be paid from February 8, 2021, through March 8, 2021, while Mr. Heath participated in
vocational job placement. On February 16, 2021, Ms. Saniga and Mr. Heath revised the
rehabilitation plan to state that Mr. Heath would be paid TTR benefits from February 16,
2021, through March 16, 2021, while participating in vocational job placement. The claim
administrator issued orders detailing the issuance of TTR benefits in accordance with the
rehabilitation plans, and Mr. Heath protested these orders. In the meantime, by order dated
June 22, 2021, the Board affirmed the OOJ’s January 13, 2021, order, which had reinstated
Mr. Heath’s rehabilitation services and TTR benefits.
On August 10, 2021, the claim administrator issued a notice acknowledging Mr.
Heath’s request to move to “Step 7” for a retraining program which would be reviewed by
a vocational specialist. 3 It appears as though the claim administrator did not have time to
issue a decision on this request before Mr. Heath requested that his TTR benefits be
suspended effective September 29, 2021. The claim administrator issued a notice dated
October 8, 2021, suspending the benefits per Mr. Heath’s request.
On January 21, 2022, Mr. Heath underwent a left ankle arthroscopy with extensive
synovectomy and an exostectomy of the talus. On February 7, 2022, the claim
administrator denied Mr. Heath’s request for TTR benefits relating to his January 21, 2022,
surgery finding that medical treatment is not an appropriate basis for an award of
rehabilitation benefits. The claim administrator further noted that Mr. Heath had already
received maximum allowed 104 weeks of TTD benefits. Mr. Heath protested the order to
the Board.
3
West Virginia Code of State Rules § 85-15-4 (2005) sets forth a “priorities” list
for vendors of vocational rehabilitation services and qualified rehabilitation professionals
that must be utilized in the following order:
1. Return to the same employer and pre-injury job;
2. Return to the same employer and pre-injury job with modification;
3. Return to the same employer in a different position;
4. Return to the same employer in a different position with on-the-job-
training;
5. Employment by a new employer without retraining;
6. Employment by a new employer with on-the-job-training;
7. Return to work following enrollment of the injured worker in a retraining
program which consists of a goal-oriented period of formal retraining
designed to lead to suitable gainful employment in the labor market.
3
Ms. Saniga authored a Closure Report dated May 9, 2022. Ms. Saniga noted that,
per Mr. Heath’s counsel, he had been selected for FEMA’s disaster housing inspector
position with Vanguard—a position he applied for while participating in the rehabilitation
plan. Ms. Saniga also noted that Mr. Heath was listed as an organizing member of a for-
profit company as of December 6, 2021. Based on the report, the claim administrator closed
Mr. Heath’s claim for vocational rehabilitation benefits on May 13, 2022. Mr. Heath
protested the order to the Board.
By order dated July 13, 2022, the Board addressed Mr. Heath’s protests of the claim
administrator’s orders which had granted him TTR benefits from February 8, 2021, through
March 8, 2021, and from February 16, 2021, through March 16, 2021, respectively. The
Board noted that the claim administrator had previously improperly closed the claim for
TTR benefits on February 28, 2020, and that the OOJ had subsequently reinstated those
benefits and ordered that they be paid from the date of the last payment (February 19, 2020)
and to continue until good cause to terminate had been established. However, the claim
administrator’s subsequent orders restarted the payments on February 8, 2021, leaving a
large gap that was not addressed. The Board found that there was no evidence that good
cause existed to terminate the payments during that gap and, therefore, Mr. Heath was
entitled to benefits from February 19, 2020, to March 16, 2021, less any TTR benefits he
had been paid during that time.
Thereafter, on August 18, 2022, the claim administrator acknowledged receipt of
the Board’s order granting Mr. Heath TTR benefits from February 19, 2020, to March 16,
2021, less any TTR benefits he had been paid during that time. 4 The claim administrator
noted that Mr. Heath had previously received TTR benefits from October 23, 2019, through
February 18, 2020 (17 weeks) and from February 16, 2021, through September 28, 2021
(32 weeks). The claim administrator stated that Mr. Heath had received a total of 49 weeks
of TTR benefits and that, pursuant to West Virginia Code § 23-4-9(d) (2005), 5 his receipt
4
The claim administrator’s order mistakenly states that it was in receipt of the OOJ’s
order dated July 13, 2022. The record demonstrates that this order was issued by the Board,
not the OOJ.
5
West Virginia Code § 23-4-9(d), in part, provides:
the aggregate award of temporary total rehabilitation or temporary partial
rehabilitation benefits for a single injury for which an award of temporary
total rehabilitation or temporary partial rehabilitation benefits is made . . .
shall be for a period not exceeding fifty-two weeks unless the payment of
temporary total rehabilitation disability benefits is in conjunction with an
approved vocational rehabilitation plan for retraining, in which event the
payment period of temporary total rehabilitation disability benefits may be
(continued . . .)
4
of TTR benefits could not exceed 52 weeks. As such, the claim administrator instructed
Mr. Heath that he was entitled to an additional three weeks of TTR benefits. Mr. Heath
protested the claim administrator’s order.
On October 4, 2022, Mr. Heath testified via deposition that Alliance had not offered
him a job since the compensable injury despite the fact that they had available job openings.
Mr. Heath stated that he spoke with Ms. Saniga numerous times about those positions. Mr.
Heath further testified that he qualified to be a FEMA inspector but was unable to perform
the inspections due to his injury. Mr. Heath also stated that his wife owned a pizzeria
business and that he worked there around eight hours a week but was not compensated.
By order dated June 29, 2023, the Board addressed three separate claim
administrator’s orders. First, the Board affirmed the claim administrator’s February 7,
2022, order which denied TTR benefits upon finding that medical treatment was not an
appropriate basis for an award of TTR benefits. The Board found that Mr. Heath was not
eligible for rehabilitation benefits while recovering from surgery and not participating in a
rehabilitation plan.
Second, and most relevant to this appeal, the Board affirmed the claim
administrator’s May 13, 2022, order, which closed the claim for vocational rehabilitation
benefits based on Ms. Saniga’s closure report. The Board found that the evidence indicated
that Mr. Heath had been selected for a FEMA disaster housing inspector and that he was
listed as an organizing member of a for-profit company as of December of 2021. The Board
found that, as such, the closure was appropriate.
Lastly, the Board reversed the claim administrator’s August 18, 2022, order which
granted Mr. Heath an additional 3 weeks of TTR benefits and found that Mr. Heath was
entitled to a maximum of 104 weeks of TTR benefits. The Board noted that the claim
administrator’s order failed to address the payment of benefits during the period between
February 19, 2020, and February 15, 2021. The Board cited West Virginia Code § 23-4-
extended for a period not to exceed a total of one hundred four weeks. . . .
Temporary partial rehabilitation benefits shall only be payable when the
injured employee is receiving vocational rehabilitation services in
accordance with a rehabilitation plan developed under this section and no
payment of temporary partial rehabilitation benefits shall be made after the
claimant has received the vocational training provided under the
rehabilitation plan.
(Emphasis added).
5
9(d) and found that, pursuant to that statute, Mr. Heath was entitled to a maximum of 104
weeks, not 52 weeks as stated in the claim administrator’s order. 6 Mr. Heath now appeals.
Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:
The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:
(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
Duff v. Kanawha Cnty. Comm’n, 247 W. Va. 550, 555, 882 S.E.2d 916, 921 (Ct. App.
2022).
On appeal, Mr. Heath argues that the portion of the Board’s order affirming the May
13, 2022, claim administrator’s order, which closed the claim for rehabilitation benefits, is
clearly wrong. According to Mr. Heath, he should have been evaluated for and granted
temporary partial rehabilitation (“TPR”) benefits pursuant to West Virginia Code § 23-4-
9(d), which provides for TPR benefits when a claimant returns to employment making less
wages than what he or she was earning prior to the work-related injury. Mr. Heath argues
that, though he was employed by FEMA and listed as the organizing member of a for-profit
company, he was not gainfully employed as contemplated under the statute and was
making less than what he earned prior to his injury. Mr. Heath seems to argue that Alliance
or the claim administrator should have provided a mandatory evaluation of his employment
with FEMA and his for-profit company to determine his eligibility for TPR benefits and
that they failed to do so. He argues that, alternatively, the claim administrator should have
progressed him to Step 7 pursuant to West Virginia Code of State Rules § 85-15-4.
We disagree and find that Mr. Heath is entitled to no relief. Pursuant to West
Virginia Code § 23-4-9(d), “the aggregate award of temporary total rehabilitation or
6
Alliance appeals the Board’s order in Case Number 23-ICA-339 and argues that
the Board erred in granting Mr. Heath a total of 104 weeks of TTR benefits.
6
temporary partial rehabilitation benefits for a single injury for which an award of temporary
total rehabilitation or temporary partial rehabilitation benefits is made . . . shall be for a
period not exceeding fifty-two weeks.” An additional 52 weeks of TTR benefits is available
when a claimant is participating in an approved vocational rehabilitation plan for retraining.
The additional 52 weeks are only available in the form of TTR benefits, not TPR benefits.
Here, the record is clear that Mr. Heath has already been granted 52 weeks of TTR
benefits related to this injury. Accordingly, he has met the statutory maximum aggregate
benefits allowed for either type of rehabilitation benefits and, therefore, would not be
entitled to any TPR benefits. Because the record is clear that Mr. Heath is not entitled to
any TPR benefits under the statute, we need not address any alleged error regarding an
evaluation for TPR benefits. Lastly, to the extent that Mr. Heath argues that the claim
administrator should have progressed him further along in the rehabilitation plan, we note
that Mr. Heath requested to be moved to Step 7, but rescinded his request for rehabilitation
benefits before the claim administrator could issue an order regarding his request. As such,
we find no error in that regard.
Based on the foregoing, we affirm the Board’s June 29, 2023, order closing the
claim for rehabilitation benefits as Mr. Heath has failed to demonstrate his entitlement to
TPR benefits. 7
Affirmed.
ISSUED: November 1, 2023
CONCURRED IN BY:
Chief Judge Daniel W. Greear
Judge Charles O. Lorensen
Judge Thomas E. Scarr, not participating
Mr. Heath also filed an accompanying motion for remand with his brief on appeal.
7
Given our holding, we refuse the motion.
7