FILED
September 19, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
MURRAY AMERICAN ENERGY, INC.,
Employer Below, Petitioner
vs.) No. 20-0716 (BOR Appeal No. 2055221)
(Claim No. 2012027687)
DUSTIN HARSHEY,
Claimant Below, Respondent
MEMORANDUM DECISION
Petitioner Murray American Energy, Inc., by Counsel Aimee M. Stern, appeals the decision
of the West Virginia Workers’ Compensation Board of Review (“Board of Review”). Dustin
Harshey, by Counsel Linda Garrett, filed a timely response.
The issue on appeal is permanent total disability. In a decision dated July 5, 2019, the
claims administrator denied the application for permanent total disability benefits as untimely
filed. The Workers’ Compensation Office of Judges (“Office of Judges”) reversed the decision in
its March 2, 2020, Order and remanded the claim with instructions to find that the claim was timely
filed and to proceed with consideration of the case. The Order was affirmed by the Board of
Review on August 21, 2020.
The standard of review applicable to this Court’s consideration of workers’ compensation
appeals has been set out under W. Va. Code § 23-5-15, in relevant part, as follows:
(c) In reviewing a decision of the Board of Review, the Supreme Court of
Appeals shall consider the record provided by the board and give deference to the
board’s findings, reasoning, and conclusions . . . .
....
(e) If the decision of the board effectively represents a reversal of a prior
ruling of either the commission or the Office of Judges that was entered on the same
issue in the same claim, the decision of the board may be reversed or modified by
the Supreme Court of Appeals only if the decision is in clear violation of
constitutional or statutory provisions, is clearly the result of erroneous conclusions
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of law, or is so clearly wrong based upon the evidentiary record that even when all
inferences are resolved in favor of the board’s findings, reasoning, and conclusions,
there is insufficient support to sustain the decision. The court may not conduct a de
novo reweighing of the evidentiary record . . . .
See Hammons v. W. Va. Off. of Ins. Comm’r, 235 W. Va. 577, 582-83, 775 S.E.2d 458, 463-64
(2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission,
230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions
of law arising in the context of decisions issued by the Board. See also Davies v. W. Va. Off. of
Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011).
Mr. Harshey was injured on January 20, 2012, when he was struck by a ram car. On March
7, 2014, he was granted a 14% permanent partial disability award for his psychiatric injuries. On
November 10, 2015, the claims administrator granted a 39% permanent partial disability award
for his physical injuries. The Office of Judges reversed the claims administrator’s November 10,
2015, decision and granted a 49% permanent partial disability award on November 15, 2017. On
June 29, 2018, the Board of Review affirmed the Office of Judges’ Order. The decision was
affirmed by this Court on May 30, 2019. Murray American Energy, Inc., v. Harshey, No. 18-0676,
2019 WL 2406702 (W. Va. May 30, 2019) (memorandum decision).
Mr. Harshey completed an Application for Permanent Total Disability Benefits on June
18, 2019, stating that he had been awarded a 49% and a 14% permanent partial disability award
for his January 20, 2012, injury. The claims administrator denied the application for a permanent
total disability award because it was untimely filed on July 5, 2019.
In its March 2, 2020, Order, the Office of Judges reversed the claims administrator’s denial
of the claim and remanded the case with instructions to find Mr. Harshey’s application to be timely
filed. The Office of Judges began by noting that West Virginia Code § 23-4-16(a)(1) provides that
“in any claim that has been closed without the entry of an order regarding the degree of impairment,
or in any claim closed on a no lost time basis, reopening requests must be filed within 5 years of
the date of the closure. Only two reopening requests may be filed within that 5 year period.”
Further, West Virginia Code § 23-4-16(a)(2) states “in any claim in which an award of permanent
impairment has been made, reopening requests must be filed within 5 years of the date of the initial
award. Only two reopening requests may be filed within that 5 year period.” Mr. Harshey was
granted an initial permanent partial disability award on March 7, 2014. He filed his application for
a permanent total disability award on June 18, 2019, clearly outside of the five year time period.
Mr. Harshey argued before the Office of Judges that his application should be considered timely
based on equity and based on West Virginia Code § 23-4-16(e).
The Office of Judges found Mr. Harshey’s argument regarding West Virginia Code § 23-
14-16(d) to be dispositive. West Virginia Code § 23-4-16(e) states that “[a] claimant may have
only one active request for a permanent disability award pending in a claim at any one time. Any
new request that is made while another is pending shall be consolidated into the former request.”
In the case at issue, Mr. Harshey was granted a 39% permanent partial disability award on
November 10, 2015, at which point he was eligible to apply for a permanent total disability award.
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See W. Va. Code § 23-4-6(n)(1) (providing that in order to apply for a permanent total disability
award, a claimant “must have been awarded the sum of fifty percent in prior permanent partial
disability awards”). However, the decision was appealed to the Office of Judges, which reversed
and granted a 49% permanent partial disability award. The employer then appealed the decision to
the Board of Review and then to this Court. The Office of Judges rejected the employer’s argument
that Mr. Harshey’s application for permanent partial total disability was untimely filed because he
did not submit his application after the November 10, 2015, permanent partial disability award
was granted. The Office of Judges reasoned that the November 10, 2015, 39% permanent partial
disability award was a not final award because the decision was appealed and “there is no
requirement which would cause the claimant to have to choose between whether he should forego
his contention that he is entitled to a greater permanent partial disability award or whether an
application for a permanent total disability award would be timely if the matter remains in
litigation.” As the Office of Judges explained, “[s]ince the issue of the permanent partial disability
award was not final, if the claimant had filed an application for a PTD award . . . then the
application for PTD would not have been acted upon but would have been consolidated into the
39% PPD award issue.” Therefore, the Office of the Judges found that Mr. Harshey’s permanent
partial disability award became final on May 30, 2019, when this Court issued its ruling. Mr.
Harshey filed his application for permanent total disability on June 18, 2019, and that application
was received on July 5, 2019. Therefore, his application was timely and should be considered. The
Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and
affirmed its Order on August 21, 2020.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. West Virginia Code § 23-4-16(e) prevents a claimant from filing
more than one claim for permanent disability at a time, whether that claim is for permanent total
disability or permanent partial disability. Mr. Harshey in this case appealed his permanent partial
disability award and was granted a greater award by the Office of Judges. The employer then
appealed the decision to the Board of Review and this Court. In this time, the five year window
for filing a claim for permanent total disability closed. However, as the Office of Judges found,
the permanent partial disability award did not become final until this Court issued its ruling on
May 30, 2019. See Murray American Energy, Inc., v. Harshey, No. 18-0676, 2019 WL 2406702
(W. Va. May 30, 2019) (memorandum decision). Mr. Harshey filed his application for permanent
total disability less than a month later. His application was timely filed.
Affirmed.
ISSUED: September 19, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
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