Credibility Over Formality: Verbal Light‑Duty Offers Do Not Automatically Terminate TTD; Deference to the Board of Review Controls 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 memorandum decision of the Intermediate Court of Appeals (ICA) and reinstated the West Virginia Workers’ Compensation Board of Review’s (Board) award of temporary total disability (TTD) benefits. The case arose from a workplace ear injury sustained by Ms. Smith, a lead housekeeper at Tamarack Marketplace. After the claim administrator accepted the injury as compensable, it later denied TTD based on a view that her ongoing condition was a personal health condition unrelated to work. The Board disagreed and awarded TTD from May 1, 2023, through September 15, 2023, and thereafter upon proper medical proof. The ICA reversed, reasoning that Ms. Smith was offered a return to work within her medical restrictions on June 12, 2023, and therefore was not TTD afterward.

The Supreme Court held that the ICA impermissibly reweighed the evidence—particularly the credibility of an employer’s sworn affidavit claiming a verbal, modified-duty offer—and that the Board’s factual determinations were not clearly wrong. The Court clarified two important points: (1) an employer’s return-to-work offer need not be in writing to satisfy West Virginia Code § 23-4-7a(e), but (2) the credibility and weight of evidence about such an offer belong to the Board as trier of fact, and appellate courts may not substitute their judgment. The decision reinforces the primacy of the Board’s credibility determinations in TTD cessation disputes, especially when releases to work are contested and job offers are oral and uncorroborated.

Summary of the Opinion

The Supreme Court reversed the ICA and reinstated the Board’s award of TTD benefits to Ms. Smith:

• The Board reasonably rejected an IME opinion that placed Ms. Smith at maximum medical improvement (MMI) with 0% impairment, particularly where that IME questioned whether the accepted, compensable injury occurred as described and did not meaningfully address her inability to tolerate loud noise.
• Under § 23-4-7a(e), TTD ceases upon MMI, release to return to work, or actual return to work—whichever occurs first. The Board found neither MMI nor a persuasive, qualifying release to work without violating her noise restrictions, and Ms. Smith did not return to work.
• Although the law does not require that return-to-work offers be in writing, the Board permissibly treated the absence of a written or otherwise corroborated offer (beyond a single affidavit) as a credibility concern, especially since Ms. Smith was not questioned about any such offer during her deposition.
• Because the Board’s findings were not clearly wrong, the ICA erred by recasting the evidence and substituting its credibility determinations for those of the Board.

Justice Bunn dissented, arguing that the Board impermissibly disregarded unrebutted, sworn evidence that Ms. Smith refused a modified-duty job that complied with her physicians’ noise restrictions, thereby foreclosing TTD as a matter of statute after June 12, 2023. The dissent stressed the Board’s duty to explain why it rejects probative evidence and warned against collapsing statutory limits on TTD.

Detailed Analysis

Case Timeline

• April 24, 2023: Ms. Smith experiences an electrical shock through a work earpiece, with an emergency-room diagnosis of right tympanic membrane rupture.
• May 12, 2023: Claim administrator holds the claim compensable for a right ear injury, with TTD to be paid upon medical proof of inability to work.
• May 18–22, 2023: Nurse practitioner imposes noise-related work restrictions; Dr. Blaine (May 24) releases Ms. Smith to work without restrictions; other providers later impose or reaffirm “no excessive noise” restrictions.
• June 23–30, 2023: ENT/audiology evaluations note asymmetric sensorineural hearing loss; Dr. Boggs restricts Ms. Smith from loud noise, opining she is unable to work through September 15, 2023, given her symptoms in loud environments.
• June 12, 2023: HR director later swears by affidavit that a nighttime, minimal-noise role without a headset was verbally offered and refused; the record contains no contemporaneous written offer, and Ms. Smith was not asked about this alleged offer in her deposition.
• August 17, 2023: Claim administrator denies and closes TTD, citing a conclusion that her “current condition” is a personal health condition.
• December 19, 2023: IME (Dr. Phillips) opines no causal connection, doubts the electric shock, finds MMI with 0% impairment; a concurring reviewer (Dr. Short) agrees.
• June 17, 2024: Board reverses TTD denial and awards TTD from May 1 to September 15, 2023, and thereafter upon proper medical proof.
• January 29, 2025: ICA reverses, finding TTD ceased June 12, 2023, when an offer of modified duty allegedly within restrictions was made and refused.
• September 23, 2025: Supreme Court reverses ICA, reinstates Board’s award, emphasizing deference to the Board’s credibility determinations.

Precedents and Statutory 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 are reviewed de novo; the Board’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 the credibility of witnesses or weigh evidence; those are exclusive functions of the trier of fact. The Supreme Court used Guthrie to explain why the ICA erred by effectively reweighing the employer’s affidavit about a verbal job offer.
• W. Va. Code § 23-4-7a(e)
  — TTD ceases when a claimant: (1) reaches MMI, (2) is released to return to work, or (3) actually returns to work, whichever occurs first; and “under no circumstances” can TTD be paid beyond those dates. The case turns on whether those cessation triggers were proven on this record.
• Intermediate decision referenced: West Virginia Parkways Authority v. Smith, No. 24-ICA-292, 2025 WL 328220 (W. Va. Ct. App. Jan. 29, 2025).
• Dissent’s authorities:
  • W. Va. Code § 23-5-12a(b) — ICA’s substantial-evidence review standard (“reliable, probative, and substantial evidence”).
  • Workman v. ACNR Res., Inc., 251 W. Va. 796, 916 S.E.2d 638 (2025) — The Board must not disregard probative evidence without explanation.
  • Gwinn v. JP Morgan Chase, No. 23-172, 2024 WL 4767011 (W. Va. Nov. 13, 2024) (memorandum decision) — The Board should articulate why it credits certain evidence over conflicting evidence.
  • Wilkinson v. W. Va. Office of Insurance Commissioner, 222 W. Va. 394, 664 S.E.2d 735 (2008) — Reversal where a tribunal misstates or ignores record evidence.

Legal Reasoning

1) Standard of Review and the Trier of Fact

The Supreme Court framed the dispute as a classic clash over factfinding. Citing Duff and Guthrie, it emphasized that the Board’s role as trier of fact includes weighing evidence and making credibility determinations. Unless clearly wrong, the Board’s findings are entitled to deference. The ICA misstepped by treating an HR affidavit as controlling proof that a qualifying job offer was made and refused, thereby supplanting the Board’s assessment of credibility and weight.

2) TTD Cessation Triggers Under § 23-4-7a(e)

Section 23-4-7a(e) cuts off TTD at MMI, release to return to work, or return to work. The Board found none of these triggers were established for the period through September 15, 2023:

• MMI: The Board found the IME’s MMI conclusion unpersuasive. The IME questioned whether the accepted compensable injury occurred at all and did not address whether Ms. Smith remained functionally unable to work in noisy environments—a key restriction repeated by multiple providers. The Supreme Court agreed it was proper for the Board to discount this opinion.
• Release to return to work: Although Dr. Blaine briefly released Ms. Smith without restrictions on May 24, other providers contemporaneously imposed (and later reaffirmed) a “no loud/excessive noise” limitation in light of ear pain and conductive deficits. The Board chose to credit those opinions over Dr. Blaine’s one-time release. That selection between competing medical views is a quintessential factfinding function.
• Return to work: Ms. Smith did not actually return to work after April 30, 2023. Thus, this trigger did not apply.

The upshot: because MMI was not proven, and a qualified release/return was not established, TTD did not terminate under § 23-4-7a(e) during the award period.

3) Verbal Modified-Duty Offers: No Writing Required, But Credibility Matters

The ICA criticized the Board for noting that the record contained no written offer confirming the June 12, 2023 modified-duty position. The Supreme Court agreed there is no legal requirement that an offer be in writing. But it held the Board could permissibly treat the lack of documentation as a credibility factor—particularly where:

• The only evidence of the offer was a single affidavit from the employer’s HR director.
• Ms. Smith was not asked about the alleged offer at her deposition, leaving the affidavit untested by cross-examination.
• Medical evidence repeatedly highlighted “no loud noise” restrictions, making the content of any purported job offer (e.g., “minimal to no noise,” “no headset”) critical and fact-intensive.

In short: while a writing is not required, an oral offer’s existence and its compliance with medical restrictions are factual matters for the Board to decide. The ICA erred by treating the affidavit as dispositive and supplanting the Board’s credibility findings.

4) Medical Causation and Accepted Compensability

The claim was accepted as compensable for a right ear injury, including a ruptured tympanic membrane. The IME’s skepticism about whether any electric shock occurred undermined its persuasiveness on MMI and disability. The Supreme Court noted the Board could diminish the IME’s weight for that reason. Moreover, the Board observed that even if eustachian tube dysfunction preexisted, the question for TTD is functional capacity post-injury; and the IME did not adequately address how her documented, noise-related pain affected short-term work ability during the award period.

5) Scope and Limits of the Ruling

The Supreme Court emphasized that its decision addresses only TTD for the period May 1 through September 15, 2023. After September 15, continued TTD must be supported by proper medical evidence, and the employer may renew arguments that ongoing problems are not related to the compensable injury. Permanent partial disability (PPD) was not at issue.

The Dissent’s Approach and the Majority’s Implicit Response

Justice Bunn asserted the Board ignored “unrebutted” sworn evidence that Ms. Smith refused a job that complied with her physicians’ only restriction—avoid loud noise. Citing Workman, Gwinn, and Wilkinson, the dissent argued the Board must explain why it rejects probative evidence and should not nullify § 23-4-7a(e)’s clear command that TTD cannot continue once a claimant is released to return to work (even with restrictions).

The majority’s analysis takes a different tack: in a record where medical releases are mixed and the job-offer proof is a lone affidavit, the Board’s credibility and weight determinations are controlling unless clearly wrong. The Board identified the absence of corroboration and the lack of cross-examination of the HR affiant as reasons to hesitate. That limited explanation sufficed for the Supreme Court, which read the Board’s order as an implicit credibility call rather than an outright misstatement or disregard of record evidence.

The tension between the dissent and the majority can be summarized as follows:

• Dissent: A sworn affidavit, uncontradicted, must be credited or at least meaningfully explained away; otherwise, § 23-4-7a(e) is drained of force whenever employees decline compliant light duty.
• Majority: Even uncontradicted affidavits are subject to credibility assessment; the Board may consider corroboration, context, and medical conflicts. Appellate courts cannot declare such evidence dispositive and reweigh the record.

Impact and Practice Implications

This decision crystallizes practical rules in West Virginia workers’ compensation cases where an employer contends TTD must cease because the claimant was released to return to modified duty:

• For employers and claims administrators:
  • There is no per se writing requirement for return-to-work offers. However, relying on a purely verbal offer is risky. The Board may discount uncorroborated affidavits, and appellate courts will not rescue those credibility determinations.
  • Best practices include delivering written offers detailing duties, shift, environmental conditions (e.g., decibel levels, headset usage), and how the offer complies with each medical restriction; obtain written acknowledgment from the claimant; and preserve contemporaneous documentation.
  • At deposition or hearing, directly question the claimant about the offer, its content, and their reasons for refusing or accepting it. Unchallenged affidavits are more vulnerable to credibility concerns.
  • When seeking to terminate TTD, ensure the medical record clearly supports either MMI or a release to return to work that fits within the claimant’s current restrictions.
• For claimants and their counsel:
  • Document symptom triggers (here, noise-induced ear pain) and ensure providers explicitly note functional restrictions. Consistent, precise restrictions strengthen a TTD claim.
  • When employers make return-to-work offers, evaluate whether the proposed setting genuinely meets restrictions; communicate concerns in writing to create a record.
• For the Board and reviewing tribunals:
  • While the Board retains broad discretion over credibility, recent authorities (Workman, Gwinn, Wilkinson) counsel providing clear reasons for discounting probative evidence, especially when singular pieces of proof (like an affidavit) are pivotal.
  • Appellate courts must guard against reweighing the evidence, even where an affidavit appears facially uncontroverted.

The decision recalibrates expectations: Appellate courts are not arbiters of whether a light-duty offer “really happened” or “really complied” with restrictions. That judgment belongs to the Board, and the absence of corroboration can carry substantial weight against an employer seeking to cut off TTD based on an oral offer.

Complex Concepts Simplified

• Temporary Total Disability (TTD): Wage-replacement benefits paid while a work injury temporarily prevents the employee from engaging in gainful employment. Under § 23-4-7a(e), TTD ends at MMI, upon release to return to work, or upon the claimant’s actual return—whichever occurs first.
• Maximum Medical Improvement (MMI): The point at which no further material recovery is expected with additional treatment. If a claimant is at MMI, TTD ends.
• Release to Return to Work: A medical determination that the claimant can work, often with specified restrictions (e.g., “no excessive noise”). In TTD disputes, whether the release is credible and whether the job offered satisfies restrictions are factual questions.
• Light/Modified Duty: An employer-provided job tailored to the claimant’s medical limitations. It can terminate TTD if it truly aligns with the restrictions and the claimant is medically released to perform it.
• Trier of Fact: The decisionmaker (here, the Board of Review) that evaluates evidence and makes credibility determinations. Appellate courts defer to these findings unless clearly wrong.
• Compensability vs. Degree of Disability: Acceptance of a claim as compensable establishes a work-related injury occurred. Disputes may still arise over the extent of disability and duration of TTD; however, medical opinions contradicting accepted compensability may be given less weight on disability issues.

Conclusion

Smith v. West Virginia Parkways Authority reinforces a critical procedural and substantive equilibrium in West Virginia workers’ compensation law. Substantively, § 23-4-7a(e)’s bright-line TTD cessation triggers remain intact: MMI, release to work, or actual return to work. Procedurally, determining whether those triggers were met—especially where releases are disputed and modified-duty offers are verbal—belongs to the Board of Review. The Supreme Court rejected the ICA’s inclination to treat an uncorroborated affidavit as dispositive proof of an offer and refusal. No statute requires a written offer, but the lack of corroboration is a legitimate credibility factor the Board may weigh.

For employers, the case is a cautionary tale: if terminating TTD based on an alleged light-duty offer, create a paper trail and test it in the record. For claimants, consistent medical documentation of functional restrictions is paramount. For courts, Smith underscores that “credibility, not formality” governs—verbal offers may suffice in theory, but in practice, their effectiveness hinges on what the Board believes after weighing all the evidence. The decision thus preserves the central role of the Board as trier of fact while offering pragmatic guidance on how parties should build records when TTD cessation turns on restricted releases and light-duty job offers.