Murray Am. Energy, Inc. v. Fitzwater

• Docket Number: 24-199
• Decision Date: 14 January 2025
• Parties: Murray American Energy, Inc., Employer Below, Petitioner v. Carey Fitzwater, Claimant Below, Respondent
• Court: West Virginia Supreme Court

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Murray American Energy, Inc., Employer Below, Petitioner v. Carey Fitzwater, Claimant Below, Respondent

No. 24-199

Supreme Court of Appeals of West Virginia

January 14, 2025

(JCN 2016004423)(ICANo. 23-ICA-376)

MEMORANDUM DECISION

PetitionerMurray American Energy, Inc. appeals the February 8, 2024 memorandum decision of the Intermediate Court of Appeals of West Virginia("ICA").SeeMurray American Energy, Inc. v. Fitzwater, No. 23-ICA-376, 2024 WL 1589681(W.Va. Ct. App.Feb. 8, 2024)(memorandum decision).RespondentCarey Fitzwater filed a timely response.^[1] The issue on appeal is whether the ICA erred in affirming the July 24, 2023, decision of the West Virginia Workers' Compensation Board of Review, which reversed the claim administrator's June 6, 2022, order granting the claimant an additional 4% PPD for the claimant's physical impairments^[2] and instead granted an additional 9% for a total award of 35% permanent partial disability for the compensable injury.

The employer asserts that the claim administrator's June 6 2022, order granting the claimant an additional 4% PPD, which was based on the findings of Joseph E. Grady II, M.D.,^[3]should be reinstated because the ICA and the Board of Review erred in finding that Dr. Grady's conclusions were unpersuasive because Dr. Grady's opinions were the most consistent with the claimant's medical records and compensable conditions.The claimant counters by arguing that while the employer obviously disagrees with the Board's decision to grant an additional 9% for a total award of 35% PPD based on the report of Bruce A. Guberman, M.D., the Board's ruling was

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not clearly wrong.Therefore, the claimant argues that the ICA properly determined that it had no basis to disturb the Board of Review's decision.

This Court reviews questions of law de novo, while we accord deference to the Board of Review's findings of fact unless the findings are clearly wrong.SeeSyl. Pt. 3, Duff v. Kanawha Cnty. Comm'n, 250 W.Va. 510, 905 S.E.2d 528(2024).Upon consideration of the record and briefs, we find no reversible error and therefore summarily affirm.SeeW.Va. R. App. P. 21(c).

Affirmed.

CONCURRED IN BY: Chief Justice William R. Wooton Justice Elizabeth D.

Walker Justice Tim Armstead Justice C. Haley Bunn Justice Charles S. Trump IV

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^[1]The petitioner is represented by counselAimee M. Stern, and the respondent is represented by counsel...