Hammons v. W. Va. Office of the Ins. Comm'r

Decision Date20 May 2015
Docket Number13–0312.,Nos. 12–1473,s. 12–1473
Citation235 W.Va. 577,775 S.E.2d 458
CourtWest Virginia Supreme Court
PartiesGary E. HAMMONS, Petitioner v. WEST VIRGINIA OFFICE OF the INSURANCE COMMISSIONER and A & R Transport, Inc., Respondents. and Clara L. Stinnett, Petitioner v. West Virginia Office of the Insurance Commissioner and West Virginia Department of Corrections, Respondents.

George Zivkovich, Parkersburg, WV, for Petitioner Gary E. Hammons.

John H. Skaggs, The Calwell Practice, PLLC, Charleston, WV, for Petitioner, Clara L. Stinnett.

Patrick Morrissey, Attorney General, David L. Stuart, Senior Deputy Attorney General, Misha Tseytlin, General Counsel, Charleston, WV, for Respondent, West Virginia Insurance Commissioner.

Opinion

DAVIS, Justice:

The case sub judice presents appeals filed by two individuals [collectively, “the claimants] who sustained employment-related injuries and who seek additional workers' compensation benefits as a result of further symptoms related to their original workplace injuries. In both cases, the claimants timely requested that the new diagnoses be added to their original claims, but, in both cases, denials of compensability and/or medical treatment required extensive litigation through the workers' compensation system until this Court ultimately found the claimants to be entitled to the compensability ruling/medical treatment they had requested.1 As a result of these significant litigation delays, the claimants' subsequent requests for permanent partial disability [“PPD”] benefits associated with the newly added diagnoses were denied by the workers' compensation system as untimely filed pursuant to W. Va.Code § 23–4–16(a) (2) (2005) (Repl. Vol. 2010).2 On appeal to this Court, the claimants ask that we find their PPD requests to have been timely filed. For the reasons that follow, we find that because the claimants timely sought to add their new diagnoses to their original claims, their additional injuries were ruled compensable, and the Commission failed to refer them for PPD evaluations as required by W. Va.Code § 23–4–7a(f) (2005) (Repl. Vol. 2010), the Board of Review's denial of their requests for PPD evaluations for their additional injuries was improper because such ruling deprived the claimants of their statutory rights to receive a permanent disability evaluation and to be compensated for their workplace injuries. Accordingly, we reverse the rulings of the Board of Review denying the claimants' PPD evaluation requests as untimely and remand these cases for further proceedings consistent with this opinion.

I.FACTUAL AND PROCEDURAL HISTORY

While each of the claimants' appeals herein presents the same legal issue, the facts giving rise to their individual claims vary. Therefore, we separately will discuss the facts relevant to each of their appeals.

A. Case Number 12–1473: Gary E. Hammons

The petitioner in Case Number 12–1473, Gary E. Hammons [Mr. Hammons], sustained a work-related injury to his leg in the course of and as a result of his employment as a truck driver with the respondent herein, A & R Transport, Inc., on January 5, 2004. Mr. Hammons received a 4% permanent partial disability [“PPD”] award for his leg by Claims Administrator order entered June 6, 2005. Thereafter, Mr. Hammons experienced low back symptoms that his doctor determined also were attributable to his work-related injury and sought to have that diagnosis added to his original workers' compensation claim. Despite repeated denials of compensability by the various workers' compensation tribunals, this Court ultimately ruled Mr. Hammons' low back injury to be a compensable component of his original work-related injury by order entered January 4, 2010. This Court also awarded Mr. Hammons temporary total disability [“TTD”] benefits for his low back injury from October 18, 2005, through July 25, 2006. Thereafter, on March 8, 2010, the Claims Administrator closed Mr. Hammons' claim for TTD benefits related to his back injury.

Pursuant to W. Va.Code § 23–4–7a(f) (2005) (Repl. Vol. 2010),

whenever in any claim temporary total disability continues longer than one hundred twenty days from the date of injury (or from the date of the last preceding examination and evaluation pursuant to the directions of the commission under other provisions of this chapter), the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, shall refer the claimant to a physician or physicians of the commission's selection for examination and evaluation in accordance with the provisions of subsection (d) [ 3 ] of this section and the provisions of subsection (e) [ 4 ] of this section are fully applicable[.]

(Emphasis and footnotes added). See also W. Va.Code § 23–4–22 (2003) (Repl. Vol. 2010) (“In every claim closed after the effective date of this section, the commission shall give notice to the parties of the claimant's right to a permanent disability evaluation.”). Despite the fact that Mr. Hammons met the requisite criteria for a mandatory PPD evaluation referral, the Workers' Compensation Commission [“Commission”] never referred him for such an evaluation. On August 9, 2010,5 Mr. Hammons faxed a letter to the Claims Administrator requesting a PPD evaluation with regard to his low back injury. By order entered August 11, 2010, the Claims Administrator denied Mr. Hammons' request as an untimely request to reopen his original claim governed by W. Va.Code § 23–4–16(a) (2005) (Repl. Vol. 2010).6

Mr. Hammons then appealed to the Office of Judges [“OOJ”], which reversed the Claims Administrator's determination by order entered September 27, 2011. In so ruling, the OOJ disagreed with the Claims Administrator's description of Mr. Hammons' letter as a request for reopening. According to the OOJ,

it is not a reopening situation subject to the above-cited statute [W. Va.Code §§ 23–4–16(a)(1–2) ]. Even if § 23–4–16 were to apply, the claim was not closed for temporary total disability for the back until March 8, 2010 [,] and the time does not begin to run until the date of the closure order relevant herein. The request for permanent partial disability under § 23–4–16 was made within five years from the date the claim was closed for temporary total disability, albeit for the low back only. The proviso regarding five years from the initial award is not applicable because an “initial award” has not been paid for the components added by the West Virginia Supreme Court, with an award of temporary total disability benefits.... The claimant in the matter at hand attempted to add components well within five years from the 4% award of permanent partial disability benefits on June 6, 2005. Obviously, Mr. Hammons could not have sought a permanent partial disability evaluation for the back condition before it was an added component and the Supreme Court found impairment from the back condition in granting him a new period of temporary disability.

Mr. Hammons' employer appealed to the Board of Review, which reversed the OOJ's ruling and reinstated the Claims Administrator's initial determination by order entered November 28, 2012. From this adverse ruling, Mr. Hammons appeals to this Court.

B. Case Number 13–0312: Clara L. Stinnett

The petitioner in Case Number 13–0312, Clara L. Stinnett [Ms. Stinnett], sustained a work-related injury to her wrist in the course of and as a result of her employment with the respondent herein, the West Virginia Department of Corrections, on August 31, 1998. Ms. Stinnett received a 22% permanent partial disability [“PPD”] award for her wrist by Claims Administrator order entered January 21, 2000. Thereafter, Ms. Stinnett experienced back and hip pain that her doctor determined also were attributable to her work-related injury, and these diagnoses, for lumbar sprain /strain, was ruled compensable by order entered January 14, 2005. Ms. Stinnett's doctor then recommended posterior lumbar interbody fusion surgery for her back and sought workers' compensation approval therefor. Despite repeated denials to authorize this surgery by the various workers' compensation tribunals, this Court, by order entered July 22, 2009, ultimately determined that Ms. Stinnett's surgical request should have been approved. By order entered August 7, 2009, the third-party administrator authorized Ms. Stinnett's request for lumbar interbody fusion/sextant decompression. Ms. Stinnett had this surgery on June 22, 2010.

Ms. Stinnett claims that her back injury could not be evaluated for PPD benefits until she reached her maximum degree of medical improvement, which occurred once she had and subsequently recovered from her back surgery. See W. Va.Code § 23–4–7a(c) (“When the authorized treating physician concludes that the claimant has either reached his or her maximum degree of improvement or is ready for disability evaluation, ... the authorized treating physician may recommend a permanent partial disability award for residual impairment relating to and resulting from the compensable injury[.]). Although W. Va.Code § 23–4–7a(f) required the Commission to refer Ms. Stinnett for a PPD evaluation, it failed to do so. See also W. Va.Code § 23–4–22. Therefore, on July 5, 2011, Ms. Stinnett requested consideration of PPD benefits related to her compensable back injury, which request the Claims Administrator denied by order entered July 28, 2011, as an untimely request to reopen her original claim governed by W. Va.Code § 23–4–16(a)(2).7 Ms. Stinnett then appealed this adverse ruling to the OOJ, which also denied her PPD evaluation request on September 11, 2012. Such denials then were affirmed by Board of Review order entered February 25, 2013. From these adverse rulings, Ms. Stinnett appeals to this Court.

II.STANDARD OF REVIEW

In both Mr. Hammons' and Ms. Stinnett's appeal to this Court, the pivotal question concerns whether their requests for a PPD evaluation were timely pursuant to W. Va.Code...

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