STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
DONALD L. PEGGS JR., September 12, 2013
RORY L. PERRY II, CLERK
Claimant Below, Petitioner SUPREME COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 11-1728 (BOR Appeal No. 2046062)
(Claim No. 2006038216)
CARTER ROAG COAL COMPANY,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Donald L. Peggs Jr., by Robert Stultz, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Carter Roag Coal Company, by
George E. Roeder III, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated November 29, 2011, in
which the Board affirmed a June 16, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s July 28, 2010,
decision denying authorization for a neurological consultation, and affirmed the claims
administrator’s August 6, 2010, decision denying a request to reopen the claim for temporary
total disability benefits. The Court has carefully reviewed the records, written arguments, and
appendices contained in the briefs, and the case is mature for consideration.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.
Mr. Peggs was injured while working for Carter Roag Coal Company on April 26, 2006.
On July 28, 2010, the claims administrator denied a request for authorization of a neurosurgical
consultation. On August 6, 2010, the claims administrator denied a request to reopen the claim
for temporary total disability benefits.
The Office of Judges reversed the claims administrator’s July 28, 2010, decision, and
granted a neurosurgical consultation. The Office of Judges affirmed the claims administrator’s
August 6, 2010, decision, and held that the evidence did not demonstrate that the claim should be
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reopened on a temporary total disability benefits basis. Mr. Peggs appeals only as to the denial of
the request to reopen the claim. On appeal, Mr. Peggs argues that Dr. Kim certified that he was
temporarily and totally disabled from April 7, 2010, through June 17, 2010, related that disability
to the compensable injury, and thus, the claim should be reopened for temporary total disability
benefits. Carter Roag Coal Company maintains that the evidence did not demonstrate that there
had been a progression or aggravation of the compensable injury.
The Office of Judges held that there was insufficient evidence to reopen the claim for
additional temporary total disability benefits. It noted that the requests to reopen the claim did
not include a determination that there was an aggravation or progression of the compensable
injury. It further noted that Dr. Dauphin found that there had been no treatment in the claim for
several years and that the current complaints were not due to the compensable injury. Finally, the
Office of Judges noted that Dr. Miele opined that if Mr. Peggs had prior problems with his neck,
that it would be less likely that the current complaint is related to the compensable injury, as
compared to if the compensable injury was the only incident relating to his neck. It noted that the
record demonstrates there was a cervical and lumbar strain in 2005, requiring Mr. Peggs to be off
work. The Office of Judges concluded that the evidence did not demonstrate that the claim
should be reopened for temporary total disability benefits. The Board of Review reached the
same reasoned conclusions in its decision of November 29, 2011. We agree with the reasoning
and conclusions of the Board of Review.
For the foregoing reasons, we find that the decision of the Board of Review is not in clear
violation of any constitutional or statutory provision, nor is it clearly the result of erroneous
conclusions of law, nor is it based upon a material misstatement or mischaracterization of the
evidentiary record. Therefore, the decision of the Board of Review is affirmed.
Affirmed.
ISSUED: September 12, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Allen H. Loughry II
DISSENTING:
Justice Margaret L. Workman
Justice Menis E. Ketchum
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