Background
Jud T. Seech developed carpal tunnel syndrome while employed as a coal miner by Frontier Kemper Constructors, Inc., from January 25, 2021, through April 27, 2021. His workers’ compensation claim was deemed compensable. On August 2, 2024, the claim administrator awarded Seech temporary total disability (TTD) benefits at a rate of $576.03 per week. The maximum available TTD rate for that fiscal year was $885.32 per week.
Seech protested the benefit rate, contending that the administrator’s calculation omitted a $100-per-day per diem payment he claimed to have received. Seech testified he worked on a seven-on, seven-off schedule at thirteen-hour shifts, earning $25 per hour plus the per diem. He argued that including the per diem in the wage calculation would have qualified him for the maximum benefit rate, regardless of whether his hourly wage was $24 or $25. The Workers’ Compensation Board of Review affirmed the administrator’s order on July 14, 2025, finding that Seech failed to prove the benefit rate was incorrect. Seech appealed.
The Court’s Holding
The Intermediate Court of Appeals affirmed the Board’s decision. Under West Virginia Code § 23-4-14(b)(2), average weekly wage for TTD benefits is computed using either the daily rate of pay at the time of injury or the best quarter of wages from the preceding four quarters, whichever is more favorable to the injured employee. However, the statutory framework requires that wage determinations rest on documented evidence.
The court found the record insufficient to support Seech’s allegation that he received an unpaid per diem. Frontier’s payroll records—showing $24 per hour regular pay and $36 per hour overtime—contained no per diem payments. Although Seech testified to receiving $100 daily per diem pay, he acknowledged discarding his pay stubs and could not produce documentary evidence. The Board noted that Seech neither specified what he believed the correct TTD rate should be nor provided proof establishing an incorrect calculation. Applying the deferential “clearly wrong” standard of review for administrative decisions, the court held that the Board’s affirmance was supported by substantial evidence and rational basis.
Key Takeaways
- Workers’ compensation benefit calculations are determined by documented wage records, not by an injured worker’s testimony alone.
- An employee bears the burden of proving, by preponderance of the evidence, that an awarded TTD benefit rate is incorrect.
- West Virginia courts apply a deferential standard of review to the Workers’ Compensation Board, presuming agency decisions valid when supported by substantial evidence.
- Wage components claimed but not reflected in employer payroll records cannot form the basis for increasing TTD benefits without corroborating evidence.
Why It Matters
This decision reinforces that West Virginia workers’ compensation law, while designed to favor injured employees in close questions about average weekly wage (§ 23-4-14(b)(2) permits use of the most favorable calculation), ultimately requires evidentiary support for wage components. An injured worker cannot rely solely on testimony about additional compensation such as per diem pay if the employer’s records do not reflect it and the worker has no documentary proof. This places a practical burden on claimants to preserve and present wage documentation.
The decision also reflects the appellate court’s deference to the Board of Review’s fact-finding role, limiting reversal to scenarios involving statutory violations, legal error, or decisions that are clearly wrong in light of substantial evidence. For practitioners, the ruling underscores the importance of gathering complete employment records, pay stubs, and employer documentation early in a claim dispute to establish the true wage base for TTD calculations.