Deborah S. Best v. W. Va. Office of Insurance Commissioner/Robert E. Games, Jr.

STATE OF WEST VIRGINIA

FILED
SUPREME COURT OF APPEALS October 21, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
DEBORAH S. BEST, OF WEST VIRGINIA

Claimant Below, Petitioner

vs.) No. 13-0874 (BOR Appeal No. 2048185)
(Claim No. 970042889)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

ROBERT E. GAMES JR.,
Employer Below, Respondent

MEMORANDUM DECISION
Petitioner Deborah S. Best, by Sue Anne Howard, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of
Insurance Commissioner, by Noah A. Barnes, its attorney, filed a timely response.

This appeal arises from the Board of Review’s Final Order dated July 31, 2013, in which
the Board affirmed a February 6, 2013, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s November 23, 2011,
decision denying Ms. Best’s application for permanent total disability benefits because it was not
timely filed. 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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 Ms. Best worked as a sales representative for Robert E. Games Jr. On January 23, 1997,
Ms. Best injured her back, neck, head, and both arms during an automobile accident while
performing her duties. Following the accident, David M. Nally, M.D., diagnosed her with a
cervical strain, thoracic strain, lumbar strain, and multiple contusions. The claims administrator
held the claim compensable for these injuries. James H. Wiley, M.D., then evaluated Ms. Best
and determined that she had 24% whole person impairment for her orthopedic injuries. On July
20, 1999, the claims administrator granted Ms. Best a 24% permanent partial disability award
based on Dr. Wiley’s evaluation. Over the next two years, Ms. Best began to develop psychiatric
problems related to the compensable injury, and on March 2, 2001, the claims administrator
granted Ms. Best a 6% permanent partial disability award for her psychiatric disability. The
Board of Review eventually reversed the claims administrator’s decision and granted Ms. Best a
20% permanent partial disability award. Ms. Best was then evaluated by Bill Choby, D.M.D.,
who diagnosed her with a musculoskeletal dysfunction of the jaws and headaches related to her
compensable injury. Dr. Choby determined that Ms. Best had 25% whole person impairment for
these conditions under the American Medical Association’s Guides to the Evaluation of
Permanent Impairment (4th ed. 1993). These conditions were then added as compensable
conditions of her claim.

On April 25, 2006, Ms. Best filed an application for permanent total disability benefits
based on the permanent partial disability awards she received for her back, neck, jaw, and
psychiatric conditions. The claims administrator reopened the claim on a permanent total
disability benefits basis, and following an evaluation, the Permanent Total Disability Reviewing
Board determined that Ms. Best had 46% whole person impairment. Following a course of
litigation, the Board of Review remanded the case to the Reviewing Board for an additional
evaluation. However, on November 23, 2011, the claims administrator denied Ms. Best’s
application for permanent total disability benefits because it was not filed within five years of her
initial permanent partial disability award. The claims administrator, therefore, determined that
Ms. Best’s application was untimely filed under West Virginia Code § 23-4-16(a)(2) (2005). On
February 6, 2013, the Office of Judges affirmed the claims administrator’s decision. The Board
of Review then affirmed the Order of the Office of Judges on July 31, 2013, leading Ms. Best to
appeal.

The Office of Judges concluded that the claims administrator did not have jurisdiction to
consider Ms. Best’s application for permanent total disability benefits because it was filed more
than five years after her initial 24% permanent partial disability award. The Office of Judges
found that Ms. Best was granted an initial permanent partial disability award in this claim on
July 20, 1999. It found that her application for permanent total disability benefits was not filed
until April 25, 2006, and therefore, was not filed within the five-year time limit provided under
West Virginia Code § 23-4-16(a)(2). The Board of Review adopted the findings of the Office of
Judges and affirmed its Order.

On appeal, Ms. Best argues that the claims administrator had jurisdiction to consider her
application for permanent total disability benefits. She asserts that the five-year time limit for
filing her application should not have run until she was granted a permanent partial disability
award for her headaches and jaw problems. Ms. Best further argues that the claims administrator
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waived its objection to the timeliness of her application by initially considering it. Ms. Best
argues that this Court should apply the holding of Harris v. West Virginia Office of Insurance
Commissioner, No. 101060, 2012 WL 2874133 (Jan. 19, 2012), in which this Court did not
apply the time limits of West Virginia Code § 23-4-16(a)(2).

We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Ms. Best has not demonstrated that she filed her application for permanent total
disability benefits within the five-year time limit set out in West Virginia Code § 23-4-16(a)(2).
Ms. Best did not file her application until almost seven years after her initial permanent partial
disability award. Since she did not timely file her application, the claims administrator did not
have jurisdiction to consider request. Her application was properly refused. Ms. Best’s argument
on appeal is inconsistent with the plain language of West Virginia Code § 23-4-16(a)(2) and this
Court’s prior application of the statute. E.g., Ellis v. W. Va. Office of Ins. Comm’r, No. 13-0014,
2014 WL 2594067 (June 10, 2014).

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: October 21, 2014

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

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