                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             November 12, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
BGS CONSTRUCTION, INC.,                                                       OF WEST VIRGINIA

Employer Below, Petitioner

vs.)   No. 13-1058	 (BOR Appeal No. 2048158)
                   (Claim No. 2009051415)

MARVIN MILLS,

Claimant Below, Respondent



                             MEMORANDUM DECISION
       Petitioner BGS Construction, Inc., by Timothy Huffman, its attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. Marvin Mills, by Otis
Mann Jr., his attorney, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated September 20, 2013, in
which the Board reversed a January 31, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s November 22,
2011, decision denying Mr. Mills’s request to reopen his claim for further consideration of his
eligibility for permanent 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. Mills has requested that his claim be reopened for further consideration of permanent
total disability benefits. On June 18, 1985, Mr. Mills signed a memorandum of agreement with
the North Carolina Industrial Commission accepting a 10% permanent partial disability award
for an injury to his right thumb sustained while he was employed in the State of North Carolina.
On October 9, 1989, Mr. Mills signed a memorandum of agreement with the North Carolina
Industrial Commission accepting a 50% permanent partial disability award for an injury to his
                                                1
left hand sustained while he was employed in the State of North Carolina. On March 28, 1995,
Mr. Mills signed a memorandum of agreement with the Virginia Workers’ Compensation
Commission accepting a 25% permanent partial disability award for an injury to his left eye
sustained while he was employed in the Commonwealth of Virginia. On March 8, 2012, Mr.
Mills was deposed and testified that he received an 11% permanent partial disability award for a
February 18, 2007, back injury sustained while employed in the State of West Virginia. He
further testified that he received a 2% permanent partial disability award for a July 14, 2008,
right elbow injury sustained while employed in the State of West Virginia.

        The claims administrator denied Mr. Mills’s request to reopen his claim for further
consideration of permanent total disability benefits based on a finding that he has not been
awarded a total of 50% in prior permanent partial disability awards for injuries sustained in the
State of West Virginia. In its Order affirming the claims administrator’s decision, the Office of
Judges held that Mr. Mills has not amassed 50% in prior permanent partial disability awards, as
is required for further consideration of permanent total disability benefits pursuant to West
Virginia Code § 23-4-6(n)(1) (2005), because he has not been awarded 50% in prior permanent
partial disability awards for injuries sustained in the State of West Virginia. The Board of
Review reversed the Order of the Office of Judges and remanded the claim to the claims
administrator for further consideration. The Board of Review held that Mr. Mills’s permanent
partial disability awards received in the State of North Carolina and the Commonwealth of
Virginia should be considered when determining whether or not he has met the statutory
threshold required for further consideration of permanent total disability benefits contained in
West Virginia Code § 23-4-6(n)(1), but found that the issue has not yet been fully developed by
the claims administrator.

         The Office of Judges concluded that only awards received for injuries sustained in the
State of West Virginia should be considered when determining whether a claimant has met the
statutory threshold necessary for further consideration of permanent total disability benefits
contained in West Virginia Code § 23-4-6(n)(1), and determined that Mr. Mills has failed to
meet the requisite threshold because he has only received a total of 13% in prior permanent
partial disability awards for injuries sustained in the State of West Virginia. In its Order
reversing the Office of Judges’ decision, the Board of Review noted that West Virginia Code §
23-4-6(n)(1) does not contain any language specifying that only permanent partial disability
benefits awarded for injuries sustained in the State of West Virginia can be considered when
determining whether a claimant has met the statutory threshold necessary for further
consideration of permanent total disability benefits pursuant to West Virginia Code § 23-4­
6(n)(1). The Board of Review then looked to this Court’s decision in Bostic v. State
Compensation Com’r, 142 W.Va. 484, 96 S.E.2d 781 (1957), where the claimant sought to have
injuries sustained in the course of his employment in the State of New Jersey taken into
consideration when determining his eligibility for permanent total disability benefits. In Bostic,
this Court instructed the Insurance Commissioner to “appraise anew” the injuries sustained in the
State of New Jersey in accordance with pertinent statutory provisions governing workers’
compensation claims in the State of West Virginia for the purpose of determining the claimant’s
eligibility for permanent total disability benefits. Id. at 489, 484. Based on the language
contained in West Virginia Code § 23-4-6(n)(1) and this Court’s decision in Bostic, the Board of
                                                2
Review concluded that prior awards from other jurisdictions must be taken into consideration
when determining whether a claimant has met the statutory threshold necessary for further
consideration of permanent total disability benefits contained in West Virginia Code § 23-4­
6(n)(1) and remanded the claim to the claims administrator for further consideration.

        We agree with the Board of Review’s reasoning and conclusion that the claim should be
remanded to the claims administrator because further development of the evidentiary record, and
therefore further consideration of the claim, is necessary. The claims administrator shall then
issue a decision regarding the ability to evaluate the injuries sustained by Mr. Mills in the State
of North Carolina and the Commonwealth of Virginia in accordance with pertinent statutory
provisions relating to workers’ compensation in the State of West Virginia, and shall then issue a
decision determining whether or not Mr. Mills has amassed 50% in prior permanent partial
disability awards as is necessary for further consideration of permanent total disability benefits
pursuant to West Virginia Code § 23-4-6(n)(1).

        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: November 12, 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




                                                3
