W.Va. SC: Former coal company employee not entitled to additional award

Chief Justice Menis Ketchum

CHARLESTON - The West Virginia Supreme Court of Appeals ruled last week that a former Consolidation Coal Company employee is not entitled to an additional permanent partial disability award.

Diane S. Lovas was working for Consolidation when she injured her neck and head on Aug. 25, 1998.

She received a permanent partial disability award for her injuries in November 1999.

Months later, in February 2010, she filed a request for an additional permanent partial disability award.

A claims administrator denied the request on Feb. 19, 2010, finding it was time barred.

In an Aug. 30, 2010 order, the Workers' Compensation Office of Judges affirmed the claims administrator's decision.

In a final order dated Jan. 14, 2011, the state Workers' Compensation Board of Review upheld the Office of Judges' order.

Lovas subsequently appealed.

On appeal, she argued the claim was reopened in 2002 for an additional permanent partial disability award, but permanent partial disability in relation to dysphagia -- or difficulty swallowing -- has never been evaluated or litigated.

She maintained she is entitled to an evaluation and an additional permanent partial disability award due to impairment caused by the condition.

Like the Office of Judges concluded, Consolidation Coal argued the request to reopen the claim for an additional permanent partial disability award is time barred.

The state's high court, in its memorandum decision filed Friday, explained that in reaching the conclusion to affirm the claims administrator's order denying Lovas' request, the Office of Judges noted that the woman's initial permanent partial disability award was received Nov. 22, 1999.

"Under West Virginia Code § 23-4-16(a)(2), a claimant may apply to reopen a claim for an additional permanent partial disability award, however '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,'" the Court wrote in its two-page decision.

"Thus, the Office of Judges found the request for an additional permanent partial disability award was properly denied. The Board of Review reached the same reasoned conclusion in its decision of Jan. 14, 2011."

Therefore, the Board of Review's decision is "not in clear violation" of any constitutional or statutory provision, "nor is it clearly the result of erroneous conclusions of law, nor is it based upon a material misstatement or mischaracterization of the evidentiary record," the Court concluded.

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