                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
                                                                                 October 10, 2017
SECURITY NETWORKS, LLC,                                                        RORY L. PERRY II, CLERK
Employer Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


vs.)   No. 17-0054 (BOR Appeal No. 2051462)
                   (Claim No. 2014016626)

DAVID R. BARKER,
Claimant Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Security Networks, LLC, by T. Jonathan Cook, its attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. David R. Barker, by
Reginald D. Henry, his attorney, filed a timely response.

       The issue presented in the instant appeal is the compensability of Mr. Barker’s claim for
workers’ compensation benefits. On September 1, 2015, the claims administrator rejected the
claim. On July 7, 2016, The Workers’ Compensation Office of Judges reversed the claims
administrator’s Order and reinstated the claim. This appeal arises from the Board of Review’s
Final Order dated December 20, 2016, in which the Board affirmed the decision of the Office of
Judges. 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.

       On November 13, 2013, Mr. Barker seriously injured his shoulder and knee while
working for Security Networks, LLC. On the same day, Maria Carter, a Human Resources
Assistant for the employer, signed and completed a “treatment authorization” form that provided
Mr. Barker’s name, social security number, type of injury, body parts injured, and listed the date
of injury as November 13, 2013. The “treatment authorization” form was directed to some
unidentified medical provider and stated that: “This will serve as our request for you to render
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the initial treatment for the above injured employee.” The “treatment authorization” also stated,
“our workers’ compensation insurance is provided through The Tower Group/CastlePoint
National Insurance Company.” The “treatment authorization” advised, however: “Please note
that this letter does not confirm that the injury or condition is covered by workers’ compensation
insurance. That determination will be made when a CastlePoint claims representative completes
an investigation.”

       An e-mail dated November 14, 2013, from Security Networks, LLC representative Carrie
Weisenfield, discussed short-term disability insurance and inquired how long the claimant would
be off from work due to his injuries. Mr. Barker submitted into evidence a check stub, in the
amount of $730.11, from Tower Select Insurance Company which lists his claim number and
references dates of service from September 1, 2014, through September 17, 2014. Mr. Barker
also submitted a check stub from AmTrust North America, Inc., in the amount of $741.5, for
temporary total disability benefits for dates of service July 23, 2015, through July 29, 2015.

        On September 1, 2015, AmTrust North America, Inc., the claims administrator, issued an
Order rejecting Mr. Barker’s claim. The Order stated that AmTrust had not received an
Employee’s and Physician’s Report of injury form (WC-1), as required by West Virginia Code
§§ 23-4-1a and 23-4-15. The claims administrator concluded that it did not have any jurisdiction
or authority to make any rulings regarding the payment or denial of workers’ compensation
benefits. The Order stated that, “after further investigation, any and all Orders and payment of
benefits in the claim were clearly erroneous and the result of a mistake and/or clerical error.” Mr.
Barker protested.

        On July 7, 2016, the Office of Judges found that the claims administrator erred in finding
that Mr. Barker’s application for workers’ compensation benefits was untimely filed. The Office
of Judges reasoned that Mr. Barker fulfilled his statutory duty to provide his employer with
notice that he sustained an injury on November 13, 2013, sufficient to generate an initial written
notice, “treatment authorization.” The Office of Judges found that the claims administrator
determined Mr. Barker’s workers’ compensation claim to be covered without the necessity of
reviewing or considering an Employee’s and Physician’s Report of injury form (WC-1). The
Office of Judges noted that the e-mail dated January 10, 2014, from Carrie Weisenfeld,
referenced the Family and Medical Leave Act paperwork and claim forms for short term
disability, but made no mention that Mr. Barker’s application was deficient because of the
absence of a completed Employee’s and Physician’s Report of injury form (WC-1). Ms.
Weisenfeld’s e-mail indicated that Mr. Barker’s claim was approved when she stated, “I also sent
the bill to Coadvantage so they can coordinate payment with the workers’ comp carrier and pay
the bill.” The Office of Judges found that the payment of benefit checks issued by
Tower/AmTrust confirms that Mr. Barker’s workers’ compensation claim was ruled
compensable based on the processes utilized by CastlePoint, Tower and AmTrust.

        The Office of Judges concluded that Mr. Barker’s failure to file an Employee’s and
Physician’s Report of injury form (WC-1) is excused in this case. The Office of Judges found
that there is no evidence that Mr. Barker was provided a form by his employer. Instead, the
claims administrator ruled on Mr. Barker’s verbal claim under its own processes, which did not
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include the consideration of an Employee’s and Physician’s Report of injury form (WC-1). The
Office of Judges concluded that Mr. Barker should not be punished due to the claims
administrator’s lack of awareness of proper West Virginia claim procedure and the actions that
they have alternatively taken absent such awareness. The Office of Judges stated that the claims
administrator obviously accepted compensability of the claim and managed the claim as valid,
with the payment of both medical and indemnity benefits, for approximately twenty-two months.
The Office of Judges found that the claims administrator may not create uncertainties in a record
and then upon achieving awareness of proper procedure two years later seek to benefit from their
shortcomings. Relying upon Vaughan v. West Virginia Office of the Insurance Commissioner,
No. 35746 (May 13, 2011) (memorandum decision), the Office of Judges stated that while it may
be the duty of the claimant to file an Employee’s and Physician’s Report of injury form (WC-1),
it is not the duty of a claimant to supply and provide the Employee’s and Physician’s Report of
injury form (WC-1). The Office of Judges concluded that Mr. Barker’s application for workers’
compensation benefits was timely filed and held that it is not the duty of a claimant to cure
insufficiencies in claim processing on part of the claims administrator.

        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order on December 20, 2016. The Board of Review reasoned that the
employer and the claims administrator were made aware of Mr. Barker’s injury within the six-
month statutory period allowed for filing a claim. The employer and the claims administrator
began managing the claim and benefits were paid. The Board concluded that the claim was
timely filed. We agree with the reasoning and conclusions of the Office of Judges as affirmed by
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.


                                                                                        Affirmed.

ISSUED: October 10, 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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