Mackie v. Blankenship v. W. Va. Ofc. of Insurance Comm./Harden Trucking ( 2017 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
MACKIE V. BLANKENSHIP, March 3, 2017
Claimant Below, Petitioner RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 16-0296 (BOR Appeal No. 2050813)
(Claim No. 800098922)
WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent
and
HARDEN TRUCKING COMPANY, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Mackie V. Blankenship, pro se, appeals the decision of the West Virginia
Workers’ Compensation Board of Review. The West Virginia Office of the Insurance
Commissioner, by Brandolyn Felton-Ernest, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated March 8, 2016, in
which the Board affirmed an August 28, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 6, 2015,
decision denying Mr. Blankenship’s request to reopen his claim for further consideration of a
permanent partial disability award as untimely filed. The Court has carefully reviewed the
records, written arguments, and appendices contained in the briefs, and the case is mature for
consideration.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.
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On July 16, 1991, Mr. Blankenship completed a Report of Occupational Pneumoconiosis
in which he alleged that he developed occupational pneumoconiosis as a result of exposure to
occupational dust hazards. He indicated that his date of last exposure to the hazards of
occupational pneumoconiosis was November 9, 1979. Subsequently, Mr. Blankenship was
granted a 10% permanent partial disability award for occupational pneumoconiosis. On October
16, 2001, he was granted an additional 5% permanent partial disability award for occupational
pneumoconiosis by the Office of Judges pursuant to the Occupational Pneumoconiosis Board’s
determination that Mr. Blankenship sustained a total of 15% whole person impairment as a result
of occupational pneumoconiosis. On November 13, 2014, Mr. Blankenship filed a request to
reopen his claim for further consideration of permanent partial disability benefits. In support of
his request, Mr. Blankenship submitted a May 30, 2014, chest x-ray diagnostic report listing a
diagnosis of pneumoconiosis, along with correspondence in which he alleges that his treating
physician has informed him that his pulmonary function is decreasing.
On January 6, 2015, the claims administrator denied Mr. Blankenship’s request to reopen
his claim as untimely filed. In its Order affirming the claims administrator’s decision, the Office
of Judges held that Mr. Blankenship’s request to reopen his claim is time-barred pursuant to
West Virginia Code § 23-4-16(a)(2) (2005). The Board of Review affirmed the reasoning and
conclusions of the Office of Judges in its decision dated March 8, 2016.
West Virginia Code § 23-4-16(a)(2) provides that reopening requests arising from
occupational pneumoconiosis claims in which an award of permanent disability was granted
must be made within five years of the date of the most recent permanent partial disability award.
The Office of Judges found that the date of Mr. Blankenship’s most recent permanent partial
disability award for occupational pneumoconiosis was October 16, 2001. Therefore, pursuant to
the provisions of West Virginia Code § 23-4-16(a)(2), any request to reopen the claim must have
been filed within five years of the October 16, 2001, award. As was noted by the Office of
Judges, Mr. Blankenship filed a request to reopen his claim more than thirteen years after the
date of the most recent permanent partial disability award for occupational pneumoconiosis and,
therefore, his request to reopen his claim is statutorily time-barred pursuant to the provisions of
West Virginia Code § 23-4-16(a)(2).
For the foregoing reasons, we find that the decision of the Board of Review 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. Therefore, the decision of the Board of Review is affirmed.
Affirmed.
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ISSUED: March 3, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
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