                             STATE OF WEST VIRGINIA


                          SUPREME COURT OF APPEALS

SCOTT A. COLLINS,                                                                   FILED
                                                                                    May 5, 2017
Claimant Below, Petitioner                                                    RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
vs.)   No. 16-0515 (BOR Appeal No. 2051048)
                   (Claim No. 920052713)


MURRAY AMERICAN ENERGY, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Scott A. Collins, by M. Jane Glauser, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Murray American Energy, Inc., by
Edward George III, its attorney, filed a timely response.

        The issue on appeal is whether the claim should be reopened for permanent partial
disability benefits. On July 21, 2015, the claims administrator denied the request to reopen the
claim for permanent partial disability benefits. The Office of Judges affirmed the decision in its
December 22, 2015, Order. The Order was affirmed by the Board of Review on May 4, 2016.
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. Collins, an underground coal miner for Murray American Energy, Inc., was injured
on April 26, 1992, when a large piece of steel landed on his right foot while he was at work. On
May 22, 1992, the claim was held compensable. In December of 1995, the Office of Judges ruled
that the claims administrator’s 7% permanent partial disability award was entered prematurely
because his toe eventually had to be amputated.

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       On May 20, 1998, E.V. Shaffer, M.D., completed an independent medical evaluation. Dr.
Shaffer determined that Mr. Collins was at maximum medical improvement and suffered from
10% whole person impairment related to the compensable injury. On September 21, 1999, the
Office of Judges affirmed a June 15, 1998, Order granting a 10% permanent partial disability
award, based upon Dr. Shaffer’s report.

        On November 27, 2000, Mr. Collins filed an application to have his claim reopened for
temporary total disability benefits. This request was granted by the claims administrator on
December 29, 2000, and was later affirmed by the Office of Judges. On June 2, 2015, Danny
Fijalkowski, D.P.M., examined Mr. Collins and issued a diagnosis update. The diagnosis update
listed foot ulcer as the primary diagnosis and foot deformity as a secondary diagnosis. On July 7,
2015, Mr. Collins petitioned to reopen the claim for an additional permanent partial disability
award. The claims administrator, Office of Judges, and Board of Review all denied the request to
reopen the claim for a permanent partial disability award.

        On December 22, 2015, the Office of Judges determined that the claims administrator
properly denied the reopening request because it was not filed in a timely fashion. The Office of
Judges determined that the claim was barred for permanent partial disability benefits under West
Virginia Code § 23-4-16(a)(2) (2005). The Office of Judges found that the precedent of
Hammons v. West Virginia Office of the Insurance Commissioner, 235 W. Va. 577, 775 S.E.2d
458 (2015), did not apply in this case because no additional diagnosis update had been filed in a
timely manner. The Board of Review adopted the findings of the Office of Judges and affirmed
its Order on May 4, 2016.

         After review, we agree with the decisions of the Office of Judges and Board of Review.
Pursuant to West Virginia Code § 23-4-16(a)(2), in any claim in which a permanent partial
disability award is made, a request to reopen must be made within five years of the date of the
initial award. On September 21, 1999, the Office of Judges found that Mr. Collins was entitled to
a 10% permanent partial disability award. His July 7, 2015, request to reopen is well outside the
five-year time frame. In addition, Mr. Collins does not qualify for an exception under Hammons
because he had not requested to add an additional diagnosis to his claim in a timely manner.

        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: May 5, 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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