Credibility of Oral Modified‑Duty Offers Controls TTD Termination: West Virginia’s High Court Reaffirms Deference to the Board of Review Under § 23‑4‑7a(e)

Credibility of Oral Modified‑Duty Offers Controls TTD Termination: West Virginia’s High Court Reaffirms Deference to the Board of Review Under § 23‑4‑7a(e)

Introduction

In Dainel Nicole Smith v. West Virginia Parkways Authority, the Supreme Court of Appeals of West Virginia reversed a decision by the Intermediate Court of Appeals (ICA) and reinstated the Workers’ Compensation Board of Review’s award of temporary total disability (TTD) benefits to a claimant who sustained a compensable right ear injury on the job. The case centers on a recurring tension in workers’ compensation law: when does a release to return to work—and an employer’s offer of modified work—terminate TTD benefits under West Virginia Code § 23-4-7a(e)? And who decides whether an employer’s asserted modified-duty offer actually met the claimant’s medical restrictions?

The Court’s memorandum decision clarifies two important points. First, appellate courts must defer to the Board of Review’s credibility determinations and weighing of evidence unless the Board’s factual findings are clearly wrong. Second, while West Virginia law does not require return-to-work offers to be in writing, the Board may consider the absence of a written offer (and the state of the record) when assessing the credibility and sufficiency of an employer’s claim that suitable modified duty existed and was offered.

The parties are petitioner-claimant Dainel Nicole Smith, a lead housekeeper at Tamarack Marketplace, and respondent-employer, the West Virginia Parkways Authority. The dispute focuses on Ms. Smith’s entitlement to TTD from May 1, 2023, through September 15, 2023, in light of medical restrictions related to noise exposure and an employer affidavit claiming an oral offer of modified duty that Ms. Smith allegedly refused.

Summary of the Opinion

The Supreme Court:

  • Reversed the ICA’s January 29, 2025 memorandum decision and reinstated the Board of Review’s June 17, 2024 award of TTD benefits from May 1, 2023, through September 15, 2023, and thereafter as substantiated by proper medical evidence.
  • Held that the ICA improperly reweighed evidence and intruded upon the Board’s role as trier of fact, particularly with respect to (a) the weight assigned to the independent medical examiner’s maximum medical improvement (MMI) opinion and (b) the credibility of the employer’s asserted return-to-work offer.
  • Clarified that: (i) § 23-4-7a(e) terminates TTD upon MMI or release/return to work, but determining whether those triggers have credibly occurred is a factual matter for the Board; and (ii) there is no statutory requirement that a job offer be in writing, though the lack of a written offer may bear on credibility in a contested record.

Case Background

On April 24, 2023, Ms. Smith suffered an electrical shock while inserting an earpiece at work, resulting in a diagnosed right tympanic membrane rupture. The claim administrator held the claim compensable for a right ear injury on May 12, 2023. Thereafter:

  • Ms. Smith’s providers documented right ear pain (otalgia), tinnitus, fluid, and significant asymmetry/worsening of hearing on the right compared to preexisting bilateral hearing loss. Some providers imposed a restriction against exposure to excessive or loud noise; one provider (Dr. Blaine) briefly released her without restriction on May 24, 2023.
  • On June 30, 2023, Dr. Boggs opined Ms. Smith was unable to work through September 15, 2023, if her work involved exposure to excessive noise. The claim administrator denied TTD on August 17, 2023, characterizing her “current condition” as personal health.
  • An IME by Dr. Phillips (December 19, 2023) found 0% impairment, doubted a significant electrical injury, and opined that the ongoing issues were largely preexisting.
  • In deposition (February 8, 2024), Ms. Smith described painful sensitivity to loud noise post‑injury; she was not asked whether the employer had offered modified duty meeting her restrictions.
  • The employer’s HR director averred by affidavit (March 18, 2024) that on June 12, 2023, the employer offered Ms. Smith a nighttime, low-noise position without headset, which she allegedly declined.

The Board reversed the TTD denial and awarded benefits for the period May 1 through September 15, 2023 (and thereafter with proper medical substantiation). The ICA reversed, concluding TTD could not continue after June 12, 2023, because the employer offered work within her restrictions. The Supreme Court then reversed the ICA, restoring the Board’s award.

Analysis

Precedents and Authorities Cited

  • Duff v. Kanawha County Commission, 250 W. Va. 510, 905 S.E.2d 528 (2024), Syl. Pt. 3: Establishes the standard of review—questions of law reviewed de novo; Board of Review’s findings of fact are accorded deference unless clearly wrong.
  • State v. Guthrie, 194 W. Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995): Appellate courts may not decide witness credibility or weigh evidence; those are functions of the trier of fact.
  • West Virginia Code § 23-4-7a(e): TTD ceases when the claimant reaches MMI, is released to return to work, or actually returns to work, whichever occurs first. It also contains the categorical language: “Under no circumstances shall a claimant be entitled to receive temporary total disability benefits either beyond the date the claimant is released to return to work or beyond the date he or she actually returns to work.”
  • West Virginia Rules of Appellate Procedure Rule 21(d): Authorizes memorandum decisions in limited circumstances without oral argument.

The dissent cites additional authorities to argue that tribunals may not ignore unrefuted, probative evidence without adequate explanation:

  • Workman v. ACNR Resources, Inc., 251 W. Va. 796, 916 S.E.2d 638 (2025).
  • Gwinn v. JPMorgan Chase, No. 23-172, 2024 WL 4767011 (W. Va. Nov. 13, 2024) (memorandum decision).
  • Wilkinson v. W. Va. Office of Insurance Commissioner, 222 W. Va. 394, 664 S.E.2d 735 (2008).

Legal Reasoning

The Court’s reasoning proceeds in two steps: standard-of-review discipline and application of § 23-4-7a(e) to a disputed return-to-work record.

1) Standard of Review: Deference to the Board’s Fact-Finding

Reaffirming Duff and Guthrie, the Court emphasized that the Board of Review is the trier of fact. The Board alone determines the credibility of witnesses and the weight of competing medical and factual evidence, and its findings stand unless clearly wrong. This principle applies equally to:

  • Credibility and persuasiveness of medical opinions, such as Dr. Phillips’s IME asserting MMI and 0% impairment while casting doubt on the compensable mechanism of injury (even though compensability had already been accepted), and
  • Credibility and sufficiency of proof that the employer offered modified duty conforming to the claimant’s restrictions.

The Board found Dr. Phillips’s MMI opinion unpersuasive, particularly as it relied on doubting a compensable injury already accepted by the claim administrator. The ICA did not disturb that finding. Accordingly, the MMI cessation trigger was not proven for the award period at issue.

2) Application of § 23-4-7a(e) to Modified-Duty Offers and Releases

The statutory text terminates TTD upon MMI, release to return to work, or actual return. But where the only credible releases permit return to work subject to restrictions (here, no exposure to excessive or loud noise), factual questions arise: did the employer actually offer work meeting those restrictions, and is that proof credible?

The Board found that some providers restricted Ms. Smith from environments with excessive noise, while one briefly released her without restriction. Weighing the record, the Board concluded Ms. Smith remained temporarily and totally disabled from May 1 through September 15, 2023, in light of the credible medical restrictions and the unresolved credibility of the employer’s asserted modified-duty offer.

The employer relied on an affidavit from its HR director stating that an oral offer was made on June 12, 2023, for a low-noise, no-headset, nighttime position and that Ms. Smith declined. The Board noted there was no written offer in the record. The ICA criticized the Board’s observation, stating that West Virginia law does not require offers to be in writing. The Supreme Court corrected the ICA on this point of analysis: while there is no legal requirement that an offer be written, the Board was entitled to consider the absence of a written offer—together with the lack of deposition questioning of Ms. Smith on the alleged offer—when assessing credibility. In other words, the Board did not impose a legal writing requirement; it exercised its fact-finding prerogative to weigh the credibility and sufficiency of the employer’s proof.

Because credibility determinations belong to the Board and were not clearly wrong, the ICA erred by substituting its assessment for the Board’s and by treating the affidavit as dispositive. The Supreme Court therefore reinstated the Board’s TTD award through September 15, 2023, and reminded that entitlement beyond that date depends on continued proof by appropriate medical evidence.

How the Decision Interacts with Cited Precedents

  • Duff and Guthrie directly inform the result. The Supreme Court applied Duff’s deferential standard and Guthrie’s instruction that credibility and weight are tasks reserved for the trier of fact. The ICA’s approach was inconsistent with those controlling principles.
  • § 23-4-7a(e) remains fully operative. The decision does not dilute its “under no circumstances” language. Rather, it explains that whether a claimant has been released to return to work (and whether a release is meaningfully effectuated by an employer’s compliant offer of modified duty) are factual questions. Where releases are conditional (e.g., no exposure to excessive noise) and the employer’s proof of a compliant offer is not found credible by the Board, the “release” trigger may not be satisfied in that period.
  • The dissent’s authorities (Workman, Gwinn, Wilkinson) caution that tribunals must address and not ignore probative, unrefuted evidence. The majority implicitly accepts that principle but finds that, here, the Board permissibly discounted the affidavit’s weight based on the totality of the record, including the absence of corroboration and lack of testimonial testing (no questioning of the claimant at deposition about the alleged offer).

Impact and Practical Implications

Although issued as a memorandum decision, the Court’s analysis has concrete implications for workers’ compensation practice in West Virginia:

For Employers and Carriers

  • If relying on § 23-4-7a(e)’s “release to return to work” termination, build a strong record that a compliant, modified‑duty job was actually offered. Best practices include:
    • Make modified-duty offers in writing with specific details (duties, shift, environment, restrictions accommodated).
    • Document delivery (date, method, recipient) and the claimant’s response.
    • Secure testimony and exhibits that can be tested on cross-examination (not just a later affidavit).
  • Expect that the Board may discount uncorroborated, oral-only offers where credibility is contested or cannot be meaningfully tested in the record.
  • Ensure medical-legal alignment: if an IME questions compensability already established by an unappealed order, that skepticism may undermine the IME’s persuasiveness on MMI and related issues.

For Claimants

  • Medical restrictions must be clearly documented. Where releases are conditional (e.g., “no excessive noise”), the absence of a credible, compliant job offer can sustain TTD until MMI or a valid return-to-work event.
  • Be prepared to address any alleged modified-duty offers on the record. Silence in a deposition may leave room for later credibility disputes; direct testimony helps the Board resolve contested facts.

For the Board of Review and ICA

  • The Board’s credibility determinations are entitled to deference; however, the dissent signals a continuing expectation that the Board should articulate why probative evidence is discounted, especially when it appears unrebutted. Detailed reasoning reduces the risk of remand or reversal under Workman/Wilkinson-type concerns.
  • The ICA must avoid reweighing; it should assess whether the Board’s findings are “clearly wrong,” not whether the ICA would have reached a different conclusion.

Substantive Clarification

  • No per se writing requirement exists for modified-duty offers under West Virginia law; yet the presence or absence of written documentation may be highly probative of credibility. Employers bear practical incentives to reduce offers to writing.
  • Conditional releases complicate § 23-4-7a(e). A “release to return to work” that presupposes restrictions is not self-executing; the Board may determine that the release trigger is not met unless the employer proves a credible, suitable position was actually offered and available.

Complex Concepts Simplified

  • Temporary Total Disability (TTD): Wage-replacement benefits for a worker temporarily unable to work due to a compensable injury. TTD ends at the earliest of: MMI, release to return to work, or actual return to work (§ 23-4-7a(e)).
  • Maximum Medical Improvement (MMI): The point at which a condition is medically stable and unlikely to improve with further treatment. No longer “temporary” once at MMI.
  • Release to Return to Work: A provider’s clearance to resume work, sometimes with restrictions. A conditional release (e.g., avoiding excessive noise) requires the employer to provide work within those parameters to effectuate a true return or release-based TTD termination.
  • Modified-Duty Offer: An employer’s offer of work tailored to the claimant’s restrictions. Not legally required to be in writing, but written offers are stronger evidence. Credibility of the offer—including whether it actually meets restrictions—is a fact question.
  • Trier of Fact and Credibility: The Board of Review decides whose testimony and which documents are believable. Appellate courts do not reweigh those decisions unless clearly wrong.
  • Sensorineural vs. Conductive Hearing Loss: Sensorineural loss involves inner ear or nerve pathways; conductive loss involves transmission of sound to the inner ear (e.g., fluid or eardrum issues). In this case, the claimant had preexisting bilateral sensorineural loss, with post‑injury right‑sided complications and pain aggravated by noise.

The Dissent

Justice Bunn’s dissent would have affirmed the ICA. In her view:

  • The Board “disregarded” unrebutted, sworn evidence (the HR affidavit) that Ms. Smith refused a modified‑duty offer meeting her sole restriction (noise), contrary to § 23-5-12a(b)’s substantial evidence standard.
  • Because no doctor found Ms. Smith wholly unable to work and the employer promptly offered low‑noise duties without a headset, § 23-4-7a(e)’s bar on TTD beyond release should have applied as of June 12, 2023.
  • Workman, Gwinn, and Wilkinson require tribunals to explain why probative evidence is rejected; the Board’s terse reference to the absence of a “written offer” was insufficient, and the majority’s reliance on “credibility” masked an impermissible disregard of unrefuted proof.
  • The dissent warns that allowing TTD to continue when compliant work is offered (but refused) undermines § 23-4-7a(e)’s limits.

Conclusion

The Supreme Court’s decision in Smith re-centers West Virginia workers’ compensation adjudication on the Board of Review’s role as the ultimate arbiter of factual disputes—especially the credibility of medical opinions and employer representations about modified duty. The Court did not create a new procedural requirement that return‑to‑work offers be written; rather, it confirmed that the Board may treat the absence of contemporaneous documentation and a sparse testimonial record as affecting credibility. Where releases are conditional and the modified‑duty evidence is contested, § 23‑4‑7a(e)’s termination triggers remain factual questions for the Board, not the appellate courts.

Key takeaways:

  • Deference matters: Absent clear error, the Board’s factual findings stand.
  • No writing requirement, but documentation is crucial: Employers seeking to terminate TTD under § 23‑4‑7a(e) should memorialize offers, details, and claimant responses.
  • Conditional releases require credible proof of compliant work: If restrictions exist, the employer’s ability to demonstrate a genuine, suitable job offer is often dispositive of TTD termination.
  • Record-building is decisive: Deposition questioning and contemporaneous exhibits can make or break credibility assessments.

In the broader legal context, Smith reinforces the doctrinal boundary between fact-finding and appellate review and underscores practical evidentiary imperatives in return-to-work disputes. Employers and claimants alike should heed the Court’s message: in workers’ compensation, credibility is king, and the Board of Review is its primary judge.

Case Details

Year: 2025
Court: Supreme Court of West Virginia

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