CHARLESTON – In a ruling allowing two claimants to receive permanent partial disability benefits, the state Supreme Court says previous memorandum decisions did not fully consider or analyze applicable statutory law as thoroughly and thoughtfully.



"Given the abbreviated factual and legal discussion set forth in this Court’s memorandum decisions, we cannot say that such prior decisions have fully considered and analyzed the applicable statutory and jurisprudential law as thoroughly and thoughtfully as does our extensive discussion of the issue herein," the opinion states.


Justice Robin Jean Davis authored the majority opinion. Justice Allen Loughry dissented and authored his opinion.


Gary E. Hammons and Clara L. Stinnett alleged their sustained employment-related injuries and sought additional workers' compensation benefits, as a result of further symptoms related to their original workplace injuries, according to the May 20 opinion.


"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," the opinion states.


As a result of these significant litigation delays, the claimants' subsequent requests for permanent partial disability benefits associated with the newly added diagnoses were denied by the workers' compensation system as untimely filed pursuant to West Virginia Code.


"On appeal to this Court, the claimants ask that we find their PPD requests to have been timely filed," the opinion states. "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 ... 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."


The court reversed the rulings of the Board of Review denying the claimants’ PPD evaluation requests as untimely and remand these cases for further proceedings consistent with the opinion.


Hammons sustained a work injury during his employment as a truck driver with A&R Transport on Jan. 5, 2004. He received a four percent permanent partial disability award for his leg on June 6, 2005.


Later, Hammons began experiencing low back symptoms that his doctor determined also were attributable to the work injury and he sought to have the diagnosis added to his original workers' compensation claim.


In 2010, the State Supreme Court ruled that the low back injury be added to the original work-related injury and awarded Hammons temporary total disability benefits for his low back injury from Oct. 18, 2005, through July 25, 2006. On May 8, 2010, the claims administrator closed Hammons' claim related to his back injury.


On Aug. 9, 2010, Hammons faxed a letter to the claims administrator requesting a PPD evaluation with regard to his low back injury and the claims administrator denied Hammons' request as an untimely request to reopen his original claim governed by West Virginia code.


Hammons appealed to the Office of Judges, which reversed the claims administrator's determination by order entered Sept. 27, 2011. Hammons' employer appealed to the Board of Review, which reversed the OOJ's ruling and reinstated the claims administrator's initial determination on Nov. 28, 2012. Hammons then appealed to the State Supreme Court.


Stinnett sustained a work-related injury to her wrist on Aug. 31, 1998 and received a 22 percent permanent partial disability award on Jan. 21, 200o. Later, Stinnett experienced back and hip pain that her doctor determined were also attributable to the work injury and the diagnoses for lumbar sprain/strain was ruled compensable by order on Jan. 14, 2005.


Stinnett's doctor recommended posterior lumbar interbody fusion surgery for her back and sought workers' compensation approval for the surgery.


Despite repeated denials to authorize the surgery by various workers' compensation tribunals, the State Supreme Court determined that Stinnett's surgical request should have been approved and entered an order on July 22, 2009. Stinnett had the surgery on June 22, 2010.


On July 5, 2011, Stinnett requested consideration for PPD benefits related to her compensable injury and the claims administrator denied the request by order on July 28, 2011. Stinnett appealed to the OOJ, which also denied her PPD evaluation request on Sept. 11, 2012. The Board of Review affirmed the denials on Feb. 25, 2013, and Stinnett appealed to the State Supreme Court.


In both Hammons’ and Stinnett’s appeal to the State Supreme Court, the pivotal question concerns whether their requests for a PPD evaluation were timely pursuant to West Virginia Code.


"Applying the holding announced herein to the facts of the cases sub judice, we conclude that both Mr. Hammons and Ms. Stinnett should have received the PPD evaluation referrals they requested herein because they both timely requested to reopen their initial work-related injury claims to add an additional diagnosis; their additional diagnoses were ruled compensable; and the Commission failed make the permanent disability evaluation referrals in the first instance," the opinion states. "To rule otherwise would deprive the claimants of the benefits to which they are entitled as compensation for their workplace injuries."


The court reversed and remanded both lawsuits.



In his dissenting opinion, Loughry stated that despite the fact that the court has, on numerous occasions, recognized that it cannot sit as a "superlegislature" and rewrite statutes under the guise of statutory interpretation, the majority has done that very thing in this case.


"Focusing solely on the rights afforded to injured workers, the majority has ignored the very foundation and purpose of the workers’ compensation system in this case, obviously unaware of the far-reaching ramifications of its decision," his dissenting opinion states. "Moreover, in its haste to render the time limitations set forth in West Virginia Code § 23-4-16(a)(2) (2010) meaningless, the majority has leapt to factual conclusions not borne out by the record in this case."


Loughry stated that in a misguided attempt to bolster its reasoning and justify its departure from stare decisis, the majority erroneously relies upon this Court's recent decision in Sheena H. for Russell H. v. West Virginia Office of Insurance Commissioner.


"Obsessively citing to my concurring opinion in Sheena H., the majority concludes that its decision in the instant matter is 'in keeping' with the result reached in that case even though the cases could not be  more  factually distinguishable," the dissenting opinion states. "In fact, the majority 'cherry picks' phrases from my concurrence in its ill-advised and unsuccessful attempt to illustrate the alleged consistency between these decisions."


Loughry stated that he warned of the dangers inherent in creating an exception, no matter how limited, to the time limitations imposed upon workers’ compensation claims in  my concurrence in Sheena H.


"While I am dismayed by the majority’s decision to further erode those time limitations, I am hardly surprised," he stated. "For these reasons, I vehemently dissent from the decision in this case."


Hammons was represented by George Zivkovich. Stinnett was represented by John H. Skaggs of the Calwell Practice PLLC.


WVIC was represented by Attorney General Patrick Morrisey, Senior Deputy Attorney General David L. Stuart and Misha Tseytlin.


W.Va. Supreme Court of Appeals case number: 12-1473, 13-0312

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