IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
MURRAY AMERICAN ENERGY, INC., November 15, 2022
Employer Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
vs.) No. 22-ICA-11 (JCN: 2020016744) OF WEST VIRGINIA
SEAN STAPEL,
Claimant Below, Respondent
MEMORANDUM DECISION
Petitioner Murray American Energy, Inc. 1 appeals the July 6, 2022, order of the
Workers’ Compensation Office of Judges. Respondent Sean Stapel filed a timely
response. 2 Petitioner did not file a reply brief. The issue on appeal is whether the Office of
Judges erred in reversing the claim administrator’s denial to reopen the claim for additional
workers’ compensation temporary total disability benefits (“TTD”).
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Office of Judges’ order granting TTD
benefits to respondent is appropriate under Rule 21 of the Rules of Appellate Procedure.
Respondent was injured on January 16, 2020. He was dragging a hose when the
hose got stuck on something on the ground and he was jerked backwards causing
immediate back pain. A lumbar spine CT scan found mild canal stenosis/disc bulge at L4-
5, which indicated that respondent’s pre-existing back issues had worsened. Respondent
was diagnosed with back strain and lumbar disc disease. Respondent’s claim was found
compensable for strain of muscle, fascia, and tendon of the lower back.
For reasons not readily apparent in the appendix record, the parties have substituted
1
“Marshall County Coal Resources, Inc.” for the employer that was identified below as
“Murray American Energy, Inc.” Consistent with the action of the Supreme Court of
Appeals of West Virginia in Delbert v. Murray American Energy, Inc., Nos. 20-0537 &
21-0944, 2022 WL 16646484, *1 n.1 (W. Va. Nov. 3, 2022), we use the name of the
employer as designated in the order on appeal: Murray American Energy, Inc.
2
Petitioner is represented by Aimee M. Stern, Esq. Respondent is represented by
Christopher J. Wallace, Esq.
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On January 27, 2020, respondent was granted TTD benefits. On April 7, 2020,
respondent was released to return to work and the TTD benefits were discontinued. On
May 18, 2020, the claim was closed for TTD benefits. On June 18, 2020, respondent
applied to reopen the claim for additional TTD benefits, and additional benefits were
granted. On October 22, 2020, respondent returned to work and the TTD benefits were
suspended. On November 30, 2020, the claim was closed for TTD.
On December 29, 2020, respondent was removed from work after he had begun
feeling increased pain. On January 11, 2021, respondent applied to reopen his claim for
temporary total disability benefits. On May 18, 2021, the claim was reopened, and
additional temporary total disability benefits were granted. On December 8, 2021, the
temporary total disability benefits were suspended due to a report from Dr. Prasadarao
Mukkamala stating that respondent had reached maximum medical improvement. Dr.
Mukkamala’s report also gave a whole person impairment rating of 8%, which was
adjusted to 3% due to a prior permanent partial disability (“PPD”) award from a previous
injury. 3 Prior to Dr. Mukkamala’s rating, respondent had not been given a whole person
impairment rating for the injury at issue. On December 16, 2021, the claim administrator
adopted Dr. Mukkamala’s 3% impairment rating and granted respondent a 3% PPD award.
On January 18, 2022, this claim was closed. Respondent returned to work, but he was
removed from work again on January 26, 2022, due to the exacerbation of his symptoms.
Respondent submitted a physician’s report to the claim administrator on January 27,
2022, apparently seeking additional temporary total disability benefits. On February 7,
2022, the claim administrator deemed the physician’s report to be an application for
reopening of the claim. The claim administrator denied a reopening of the claim due to the
fact that it had already been reopened twice. See W. Va. Code § 23-4-16(a) (2005) (limiting
certain reopenings; statute quoted below).
Respondent protested the claim administrator’s February 7, 2022, order. On July 6,
2022, the Office of Judges found that respondent had proven a progression or aggravation
of his condition and reversed the claim administrator’s order denying petitioner’s
application for additional temporary total disability benefits. The Office of Judges noted
that while the claim had been reopened twice prior to the award of PPD benefits, the limit
of two reopenings under West Virginia Code § 23-4-16(a) did not apply until after the
permanent partial disability award.
Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:
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Respondent was granted a 5% permanent impairment rating in 2016 for a separate
workplace injury. His total permanent impairment rating now totals 8% with the addition
of the 3% permanent impairment rating from this injury.
2
The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:
(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
Although this statute specifically references orders of the Board of Review, this Court
concludes that the same standard applies to our review of orders issued by the Office of
Judges during the period of time when administrative proceedings were being transferred
from the Office of Judges to the Board of Review. See W. Va. Code § 23-5-8a (2022)
(transferring powers and duties of Office of Judges to Board of Review); W. Va. Code §
23-5-12(b) (2021) (specifying this same standard of review when Board of Review heard
appeals of Office of Judges’ orders).
On appeal, petitioner argues that West Virginia Code § 23-4-16(a) limits the
reopening of a temporary total disability claim to no more than two requests after an initial
“award of temporary total disability benefits” was issued. West Virginia Code § 23-4-16(a)
states, in part:
(a) The power and jurisdiction of the commission, successor to the
commission, other private carrier or self-insured employer, whichever is
applicable, over each case is continuing and the commission, successor to the
commission, other private carrier or self-insured employer, whichever is
applicable, may, in accordance with the provisions of this section and after
due notice to the employer, make modifications or changes with respect to
former findings or orders that are justified. Upon and after the second day of
February, one thousand nine hundred ninety-five, the period in which a
claimant may request a modification, change or reopening of a prior award
that was entered either prior to or after that date shall be determined by the
following subdivisions of this subsection. Any request that is made beyond
that period shall be refused.
(1) Except as provided in section twenty-two of this article, in any claim
which was closed without the entry of an order regarding the degree, if any,
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of permanent disability that a claimant has suffered, or in any case in which
no award has been made, any request must be made within five years of the
closure. During that time period, only two requests may be filed.
(2) Except as stated below, in any claim in which an award of permanent
disability was made, any request must be made within five years of the date
of the initial award. During that time period, only two requests may be filed.
With regard to those occupational diseases, including occupational
pneumoconiosis, which are medically recognized as progressive in nature, if
any such request is granted by the commission, successor to the commission,
other private carrier or self-insured employer, whichever is applicable, a new
five-year period begins upon the date of the subsequent award. With the
advice of the health care advisory panel, the executive director and the board
of managers shall by rule designate those progressive diseases which are
customarily the subject of claims.
Petitioner contends that the Supreme Court of Appeals of West Virginia’s holding
in Goode v. West Virginia Office of Insurance Commissioner, No. 14-0786, 2016 WL
440025, (W. Va. Feb. 4, 2016) (memorandum decision), limits case reopenings for TTD
benefits to two.
Upon our review, we find no error in the Office of Judges’ finding that the two-
request limit did not apply until after respondent was granted a PPD award. Contrary to
petitioner’s claims, the Goode case can be distinguished from the instant case. Goode
concerned whether an injured worker could receive another PPD evaluation and TTD
benefits after a new condition was added to the claim more than five years after the initial
permanent total disability award was issued. The case did not address the number of
reopenings allowed.
West Virginia Code § 23-4-16(a)(2) applies here because respondent received a
permanent partial disability award for this injury. This provision states, “in any claim in
which an award of permanent disability was made, any request must be made within five
years of the date of the initial award. During that time period, only two requests may be
filed.” Id. (emphasis added.) As the Office of Judges stated, “[i]n this case, the award of
permanent partial disability was made on December 16, 2021, and this [January 27, 2022]
request to reopen the claim for temporary total disability benefit[s] (sic) constitutes the first
reopening . . . pursuant to the terms of that statute if such even applies to reopenings for
temporary total disability benefits.”
The Office of Judges correctly found that West Virginia Code § 23-4-16(a) does not
prohibit this reopening of respondent’s claim. Accordingly, we affirm.
Affirmed.
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ISSUED: November 15, 2022
CONCURRED IN BY:
Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen
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