                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                                 April 23, 2013

                                                                            RORY L. PERRY II, CLERK

LEONILA BAIRD,                                                            SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-1006	 (BOR Appeal No. 2045345)
                   (Claim No. 2010102815)

JOHN Q. HAMMONS HOTELS, L.P.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Leonila Baird, by J. Philip Fraley, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. John Q. Hammons Hotels, L.P., by
Steven Wellman, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated June 8, 2011, in which
the Board affirmed a November 5, 2010, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges held that it no longer has jurisdiction over Ms. Baird’s claim
for workers’ compensation benefits, which was denied by the claims administrator on September
18, 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.

        Ms. Baird was employed as a housekeeper with John Q. Hammons Hotels when she
began to experience chest pain with movement while performing her normal employment duties
on July 20, 2009. On September 18, 2009, the claims administrator stated: “An investigation of
the circumstances and events related by you as involved in the alleged injury reflects sufficient
inconsistencies and contradictions to conclude that you were not injured in the course of or as a
result of your employment. Particular consideration is given to the fact that you reported chest
pain. Accordingly your claim is denied.”
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         In its November 5, 2010, Order, the Office of Judges held that it no longer had
jurisdiction to consider the claim. Ms. Baird disputes this finding and asserts that her inability to
understand the process involved in prosecuting a workers’ compensation claim is sufficient to
toll the statutorily mandated time frame for filing a protest of the claims administrator’s decision.

        West Virginia Code § 23-5-1(b)(1) (2009) states that a claimant has sixty days from the
date the claims administrator’s decision is received to file a protest, or under West Virginia Code
§ 23-5-6 (2003), up to one hundred twenty days if good cause or excusable neglect is established.
The September 18, 2009, claims administrator’s decision clearly states that Ms. Baird had sixty
days to file a protest, and provides detailed instructions for doing so. The Office of Judges found
that Ms. Baird requested a late filing of protest approximately one year after the date of the
claims administrator’s decision. The Office of Judges further found that there is no evidence that
Ms. Baird did not receive notice of the claims administrator’s decision shortly after it was
entered. The Board of Review reached the same reasoned conclusions in its decision of June 8,
2011. We agree with the reasoning and conclusions of 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: April 23, 2013

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




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