Susan Stern v. W. Va. Office of Insurance Commissioner/W. Va. Dept. of Agriculture ( 2014 )

STATE OF WEST VIRGINIA
FILED
SUPREME COURT OF APPEALS June 27, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
SUSAN STERN, OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 13-0303 (BOR Appeal No. 2047579)
(Claim No. 2001052618)
WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent
and
WEST VIRGINIA DEPARTMENT OF AGRICULTURE,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Susan Stern, by M. Jane Glauser, her attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. The West Virginia Office of the Insurance
Commissioner, by Gregory Evers, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated February 25, 2013, in
which the Board affirmed an August 1, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 28,
2011, decision granting Ms. Stern a permanent total disability award with an onset date of
February 11, 2011. 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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Ms. Stern initially filed an application for permanent total disability benefits on June 19,
2007. Ms. Stern’s June 19, 2007, application for permanent total disability benefits was rejected
by the claims administrator on August 8, 2007, based on a finding that she had not met the
statutory threshold necessary for further consideration of permanent total disability benefits
contained in West Virginia Code § 23-4-6(n)(1) (2005). The Office of Judges affirmed the
claims administrator’s decision rejecting Ms. Stern’s application for permanent total disability
benefits on April 30, 2008. On December 1, 2008, the Board of Review affirmed the Office of
Judges’ April 30, 2008, Order. This Court refused Ms. Stern’s petition appealing the Board of
Review’s Order on December 7, 2009.
On February 11, 2011, Ms. Stern filed a second application for permanent total disability
benefits indicating that she has now met the necessary threshold for further consideration of a
permanent total disability award and has lost sight in both eyes. Ms. Stern was granted a
permanent total disability award on December 28, 2011, with a permanent total disability onset
date of February 11, 2011, based on her February 11, 2011, application for permanent total
disability benefits. The decision granting a permanent total disability award was presumably
based on the presumption contained in West Virginia Code § 23-4-6(m) (2005), and the fact that
Ms. Stern has now met the necessary threshold for further consideration of a permanent total
disability award.
In its Order affirming the claims administrator’s decision, the Office of Judges held that
the claims administrator properly determined that the appropriate permanent total disability onset
date in the instant claim is February 11, 2011, pursuant to West Virginia Code § 23-4-6(j)(5)
(2005). Ms. Stern disputes this finding and asserts that she is entitled to an earlier onset date for
permanent total disability benefits based on her initial application for permanent total disability
benefits dated June 19, 2007.
As noted by the Office of Judges, the language contained in West Virginia Code § 23-4­
6(j)(5) is unambiguous and clearly states that the onset date for permanent total disability
benefits shall be determined using the filing date of a properly completed application for
permanent total disability benefits that “results in a finding of permanent total disability”. The
Office of Judges found that it is undisputed that Ms. Stern filed the application on which her
permanent total disability award was based on February 11, 2011. The Office of Judges then
determined that pursuant to West Virginia Code § 23-4-6(j)(5), the earliest possible onset date
for permanent total disability benefits is February 11, 2011, which is the filing date of the
application resulting in a permanent total disability award. The Board of Review reached the
same reasoned conclusions in its decision of February 25, 2013. We agree with the reasoning and
conclusions of the Board of Review.
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.
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Affirmed.
ISSUED: June 27, 2014
CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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