                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               June 27, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
PERFORMANCE COAL COMPANY,                                                     OF WEST VIRGINIA

Employer Below, Petitioner

vs.)   No. 13-0369 (BOR Appeal No. 2047485)
                   (Claim No. 2000044324)

RUSSELL E. HOGE JR.,
Claimant Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Performance Coal Company, by Paul Pinson, its attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Russell E. Hoge Jr., by Reginald
D. Henry, his attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated March 22, 2013, in
which the Board affirmed a July 19, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s May 17, 2010,
decision which granted Mr. Hoge a permanent total disability award with an onset date of
September 11, 2009. 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. Hoge, a coal miner, was awarded a permanent total disability award by the claims
administrator on May 17, 2010. Performance Coal Company appealed and the Office of Judges
affirmed the claims administrator’s decision in its July 19, 2012, Order. It found that it was
prohibited from considering Performance Coal Company’s protest by the provisions of West
Virginia Code § 23-5-1(b) (2009) which provides three situations in which an employer may
protest a decision of the claims administrator. Decisions that may be protested by the employer
are those incorporating findings of the Occupational Pneumoconiosis Board, decisions made by
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the Insurance Commissioner acting as administrator of claims involving funds created in West
Virginia Code § 23-5-2 (2005), or decisions made pursuant to West Virginia Code § 23-4-7a
(c)(1) (2005). The Office of Judges found that the claims administrator’s decision does not
provide any of the aforementioned scenarios which afford Performance Coal Company standing
to protest. Performance Coal Company empanelled its own Permanent Total Disability Review
Board and the claims administrator’s decision was based upon that Board’s final
recommendations. Therefore, the Office of Judges held that Performance Coal Company had no
standing to protest the claims administrator’s decision and that the decision must therefore be
affirmed. The Board of Review adopted the findings of fact and conclusions of law of the Office
of Judges and affirmed its Order in its March 22, 2013, decision. This Court agrees with the
reasoning and conclusions of the Board of Review. Performance Coal Company has no standing
to protest the claims administrator’s decision.

        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: June 27, 2014

CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

Justice Brent D. Benjamin, disqualified




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