                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                             September 16, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
CORNERSTONE INTERIORS, INC.,                                                   OF WEST VIRGINIA

Employer Below, Petitioner

vs.)   No. 14-1143 (BOR Appeal No. 2049412)
                   (Claim No. 2012011042)

RALPH HARTWELL,
Claimant Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Cornerstone Interiors, Inc., by Marion E. Ray, its attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Ralph Hartwell, by Reginald D.
Henry, his attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated October 1, 2014, in
which the Board affirmed an April 28, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges granted Mr. Hartwell’s request for attorney’s fees
incurred in the reversal of the claims administrator’s October 14, 2013, decision denying a
cervical spine MRI, an EMG of the upper extremities, labs, and a follow-up appointment with
Barry Vaught, M.D. 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. Hartwell, a carpenter, was injured in the course of his employment on September 27,
2011. An independent medical evaluation was performed by Prasadarao Mukkamala, M.D., in
which Mr. Hartwell complained of left shoulder pain, neck pain, and headaches. Dr. Mukkamala
found he had reached maximum medical improvement and only required maintenance medical
management. He also stated that cervical sprain and left shoulder sprain should be added to the
claim as compensable conditions. The claim was held compensable for multiple injuries
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including cervical sprain and left shoulder sprain. The Office of Judges authorized an
appointment with Dr. Vaught on July 31, 2013. Dr. Vaught found that Mr. Hartwell continued to
have intolerable pain in the left side of his neck that radiated into his left arm. He reported a new
tremor in his right hand. Dr. Vaught diagnosed cervical radiculopathy, tremor, occipital
neuralgia, and nightmares. He found that Mr. Hartwell had a tremor as well as other
Parkinsonian findings that were not present prior to the compensable injury. He requested a
cervical spine MRI, an EMG of the upper extremities, labs, and a follow-up appointment. The
claims administrator denied his requests on October 14, 2013.

        The Office of Judges reversed the claims administrator’s decision on February 20, 2014,
and authorized the requested tests and follow-up appointment. It found that the claim was held
compensable for several conditions including neck strain and sprain of the shoulder and upper
arm. It noted that Dr. Mukkamala recommended that cervical sprain and left shoulder sprain be
added to the claim. It also noted that a prior Office of Judges’ Order authorized an appointment
with Dr. Vaught. It stated that Dr. Vaught noted a new finding of hand tremors in his
examination, and Mr. Hartwell also continued to have severe pain in his neck and left shoulder.
Dr. Vaught’s findings were determined to be persuasive. Following the Order, on April 1, 2014,
Mr. Hartwell filed a petition for attorney’s fees incurred in the reversal of the claims
administrator’s October 14, 2013, decision. Cornerstone Interiors, Inc., filed a response to the
petition in which it asserted that the Office of Judges’ Order became final on February 20, 2014,
and Mr. Hartwell did not request attorney’s fees until April 1, 2014. It argued that he was
therefore time barred from filing a petition for attorney’s fees because his request was made
more than thirty days after the Order became final. West Virginia Code § 23-5-16(c)(1) (2009).

         The Office of Judges granted Mr. Hartwell’s petition for attorney’s fees on April 28,
2014. It found that its February 20, 2014, Order was not appealed to the Board of Review and
therefore, became final. The Office of Judges noted that West Virginia Code § 23-5-16(c)(1)
states that a petition for attorney’s fees must be filed within thirty days of the Order becoming
final. It held that the Office of Judges’ Order became final on March 22, 2014, when the appeal
period ended. It stated that to interpret the statute as requiring Mr. Hartwell to file his fee petition
within thirty days of the date of the decision could result in premature filings of fee petitions as
they would be filed prior to the end of the appeal period. The Office of Judges stated that West
Virginia Code § 23-5-16(c)(2) (2009) limits the amount of attorney’s fees available to $500 for
each litigated medical issue. Mr. Hartwell was therefore awarded $500 in attorney’s fees.

        The Board of Review affirmed the Office of Judges’ Order on October 1, 2014. It stated
that West Virginia Code § 23-5-16(c)(1) provides that the petition for attorney’s fees must be
submitted to the proper decision making authority, which is whichever court enters a final
decision on the issue. The Board of Review concluded that in order to determine whether the
petition is to be filed with the Office of Judges, it must first be determined if the Office of Judges
entered the final decision on the issue. It is therefore impossible to know if the Office of Judges
entered the final decision on the issue until the appeal period for the Order has expired. The
Board of Review held that a petition is timely submitted if it is submitted within thirty days
following the expiration of the appeal period. The appeal period for the Office of Judges’ Order

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in this case expired on or about March 22, 2014, and Mr. Hartwell petitioned for attorney’s fees
on April 1, 2014.

        On appeal, Cornerstone Interiors, Inc., argues that the Office of Judges’ February 20,
2014, Order became final on the day it was entered. It asserts that Mr. Hartwell did not file his
petition for attorney’s fees until forty days after the decision became final, and the Office of
Judges was therefore jurisdictionally barred from granting him attorney’s fees. Mr. Hartwell
argues that a decision does not become final until the period for appeal expires. After review, we
agree with the reasoning and conclusions of the Board of Review. Cornerstone Interiors, Inc.,’s
interpretation of West Virginia Code § 23-5-16(c)(1) is incorrect. The Office of Judges’ Order
did not become final until the period for appealing it expired. To hold otherwise would result in
premature filings. Also, the Board of Review was correct that it was impossible to know prior to
the appeal period ending if the appeal was the final decision on the issue. Mr. Hartwell had thirty
days after the appeal period expired to petition for fees, and he submitted his petition within that
thirty day period.

        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: September 16, 2015

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




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