Richard A. Gerrard v. W. Va. Office of Insurance Commissioner/Harrison Co. Comm.

STATE OF WEST VIRGINIA

FILED
SUPREME COURT OF APPEALS November 22, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
RICHARD A. GERRARD, OF WEST VIRGINIA

Claimant Below, Petitioner

vs.) No. 12-0311 (BOR Appeal No. 2046326)
(Claim No. 2002015259)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

HARRISON COUNTY COMMISSION,
Employer Below, Respondent

MEMORANDUM DECISION
Petitioner Richard A. Gerrard, pro se, appeals the decision of the West Virginia Workers’
Compensation Board of Review.

This appeal arises from the Board of Review’s Final Order dated February 2, 2012, in
which the Board affirmed a July 22, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s November 4, 2010,
decisions declaring that an overpayment of permanent partial disability benefits has occurred,
and denying Mr. Gerrard’s request to reopen the claim for further consideration of permanent
partial 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.

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 Mr. Gerrard was injured on August 16, 2001, when he fell off a porch while working as
an animal control officer. The instant case arises from two separate November 4, 2010, claims
administrator’s decisions declaring that there has been an overpayment of permanent partial
disability benefits and denying a reopening of the claim for further consideration of permanent
partial disability benefits. In its Order affirming the November 4, 2010, claims administrator’s
decisions, the Office of Judges held that an overpayment of permanent partial disability benefits
has occurred and further held that Mr. Gerrard is not entitled to a reopening of the claim for
permanent partial disability benefits.

The November 4, 2010, claims administrator’s decision regarding an overpayment of
permanent partial disability benefits indicates that a 20% permanent partial disability award was
erroneously paid. West Virginia Code § 23-4-1d(d) (2005) allows for the recovery of
overpayments for any amount overpaid. As noted by the Office of Judges, there is no indication
that the claims administrator’s determination that an overpayment has occurred is incorrect.

West Virginia Code § 23-4-16(a)(2) (2005) states that in a claim where an award of
permanent impairment has been made, reopening requests must be made within five years of the
date of the initial award. The Office of Judges found that Mr. Gerrard’s initial permanent partial
disability award was granted on January 6, 2003. The Office of Judges then found that he did not
file a request to reopen the claim until October 21, 2010, which is beyond the five-year limitation
imposed by West Virginia Code § 23-4-16(a)(2). The Board of Review reached the same
reasoned conclusions in its decision of February 2, 2012. 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: November 22, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

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