                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                                May 7, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
CONSTELLIUM ROLLED PRODUCTS                                                   OF WEST VIRGINIA

RAVENSWOOD, LLC,
Employer Below, Petitioner

vs.)   No. 13-0447 (BOR Appeal No. 2047721)
                    (Claim No. 2007211879)

STEPHEN M. AKERS,
Claimant Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Constellium Rolled Products Ravenswood, LLC, by, James W. Heslep its
attorney, appeals the decision of the West Virginia Workers’ Compensation Board of Review.

        This appeal arises from the Board of Review’s Final Order dated March 22, 2013, in
which the Board affirmed a September 12, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s August 18, 2011,
decision to deny Stephen M. Akers’s request to reopen his claim for temporary total disability
benefits and remanded the case with instructions to issue an order regarding whether Mr. Akers
has shown a prima facie cause of a progression or aggravation of the compensable condition or
some other fact or facts which were not previously considered which would entitle Mr. Akers to
a reopening of temporary total disability benefits. 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.

        Mr. Akers was working for Constellium Rolled Products Ravenswood, LLC, on April 12,
2006, when he injured his lower back. Mr. Akers subsequently filed for workers’ compensation
benefits on August 30, 2007. Mr. Akers’s claim was eventually closed for temporary total
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disability on December 19, 2006. Mr. Akers then filed to reopen his claim for temporary total
disability benefits on August 30, 2007, seeking benefits from August 30, 2007, through October
3, 2007. His application was reopened for temporary total disability benefits on September 21,
2007. The benefits ran until December 10, 2007, when the claim was closed again for temporary
total disability benefits. Thereafter, Mr. Akers filed a second request to open his claim for further
temporary total disability benefits on July 31, 2009, seeking benefits from July 31, 2009, through
October 31, 2009. His request was granted on August 4, 2009, and the benefits ran until
November 10, 2009, when the claim was closed again. Finally, on August 18, 2011, Mr. Akers
filed a third reopening request to reopen his claim related to his April 12, 2006, injury. The
claims administrator denied Mr. Akers’s third reopening request for temporary total disability
benefits stating that West Virginia Code § 23-4-16 (2005), limits Mr. Akers to two reopening
requests related to temporary total disability benefits. West Virginia Code § 23-4-16(a)(1),
provides the following:

               [I]n any claim which was closed without the entry of an order
               regarding the degree, if any, of permanent disability that a claimant
               has suffered, or in any case in which no award has been made, any
               request must be made within five years of the closure. During that
               time period, only two requests may be filed.

Mr. Akers protested this decision.

       The Office of Judges concluded that the limiting language of West Virginia Code § 23-4­
16(a)(1)-(2), does not apply to reopenings for temporary total disability benefits. West Virginia
Code § 23-4-16(a)(1)-(2), provides that:

               (1) Except as provided in section twenty-two of this article, in any
               claim which was closed without the entry of an order regarding the
               degree, if any, of permanent disability that a claimant has suffered,
               or in any case in which no award has been made, any request must
               be made within five years of the closure. During that time period,
               only two requests may be filed.

               (2) Except as stated below, 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. During that time period,
               only two requests may be filed. With regard to those occupational
               diseases, including occupational pneumoconiosis, which are
               medically recognized as progressive in nature, if any such request
               is granted by the commission, successor to the commission, other
               private carrier or self-insured employer, whichever is applicable, a
               new five-year period begins upon the date of the subsequent
               award. With the advice of the Health Care Advisory Panel, the
               executive director and the board of managers shall by rule

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               designate those progressive diseases which are customarily the
               subject of claims.

        The Office of Judges determined that West Virginia Code § 23-4-16(b), was the only
limitation that applied to temporary total disability. West Virginia Code § 23-4-16(b) provides
the following:

               In any claim in which an injured employee makes application for a
               further period of temporary total disability, if the application is in
               writing and filed within the applicable time limit stated above, the
               commission, successor to the commission, other private carrier or
               self-insured employer, whichever is applicable, shall pass upon the
               request within thirty days of the receipt of the request. If the
               decision is to grant the request, the order shall provide for the
               receipt of temporary total disability benefits. In any case in which
               an injured employee makes application for a further award of
               permanent partial disability benefits or for an award of permanent
               total disability benefits, if the application is in writing and filed
               within the applicable time limit as stated above, the commission,
               successor to the commission, other private carrier or self-insured
               employer, whichever is applicable, shall pass upon the request
               within thirty days of its receipt and, if the commission determines
               that the claimant may be entitled to an award, the commission,
               successor to the commission, other private carrier or self-insured
               employer, whichever is applicable, shall refer the claimant for
               further examinations that are necessary.

       The Board of Review affirmed the decision of the Office of Judges but did not adopt its
reasoning. The Board of Review relied upon the West Virginia Office of the Insurance
Commissioner’s Informational Letter No. 164 (Oct. 2008). In the 2008 letter, the West Virginia
Office of the Insurance Commissioner adopted the interpretation that the number of times a
claimant can petition for additional temporary total disability benefits is not limited.

       We agree with the conclusion of the Office of Judges and the Board of Review. Mr.
Akers’s request to reopen his claim for temporary total disability benefits is not barred by West
Virginia Code § 23-4-16(a). The Office of Judges properly remanded the case to the claims
administrator for further consideration of Mr. Akers’s request.

        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: May 7, 2015

CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Allen H. Loughry II

DISSENTING:
Justice Menis E. Ketchum




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