                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               June 11, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
GREG LAMBERT,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-1431 (BOR Appeal No. 2047323)
                   (Claim No. 2005019150)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

CITY OF BECKLEY,
Employer Below, Respondent


                             MEMORANDUM DECISION
         Petitioner Greg Lambert, by Reginald D. Henry, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. City of Beckley, by W. F. Richmond
Jr., its attorney, filed a timely response. The West Virginia Office of Insurance Commissioner,
by Mark A. Bramble, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated November 7, 2012, in
which the Board affirmed a June 8, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s January 20, 2012, decision
denying Mr. Lambert’s request for a reopening of the claim for a permanent partial disability
award. 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.
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        Mr. Lambert worked as a supervisor for the City of Beckley. On November 5, 2004, he
suffered a low back injury from being in a motor vehicle accident. The claim was held
compensable for lumbar sprain/strain. On August 10, 2005, Mr. Lambert was granted a 0%
permanent partial disability award, and the claim was closed on a permanent partial disability
award basis. Mr. Lambert requested a reopening of the claim on May 19, 2009, for medical
benefits and temporary total disability benefits. On January 20, 2012, the claims administrator
denied Mr. Lambert’s request for a reopening.

        The Office of Judges affirmed the claims administrator’s decision and held that Mr.
Lambert did not file his request for a reopening of a permanent partial disability award within the
required five years from the August 10, 2005, decision, which granted a 0% permanent partial
disability award and closed the claim for a permanent partial disability award. On appeal, Mr.
Lambert disagrees and asserts that the preponderance of the evidence established that he has an
ongoing progression and aggravation of his prior 2004 injury. He further asserts that the Office
of Judges failed to consider Hardy v. Richardson, 198 W. Va. 11, 479 S.E.2d 310 (1986) which
imposes an affirmative duty upon the claims administrator to further process the claim once
compensability has been determined and that he is entitled to an impairment evaluation. The City
of Beckley and the West Virginia Office of Insurance Commissioner maintain that West Virginia
Code § 23-4-16(a)(2) (2005) requires any request to modify the initial permanent partial
disability award must be made within five years of the initial Order and that Mr. Lambert failed
to request a reopening within five years. The City of Beckley and the West Virginia Office of
Insurance Commissioner further maintain that the Hardy case addresses an initial permanent
partial disability examination not subsequent ones and that the claims administrator appropriately
applied Hardy by having Mr. Lambert initially examined for a permanent partial disability award
on January 20, 2005.

        The claims administrator’s decision dated January 20, 2012, denied the reopening of the
claim because Mr. Lambert failed to timely file his reopening application. West Virginia Code §
23-4-16(a)(2) states that when an award of permanent impairment has been made, a reopening
request must be filed within five years of the date of the initial award. The Office of Judges
found that the claims administrator used the date of the report of George Orphanos, M.D., to
determine when Mr. Lambert should have filed the reopening application instead of the date of
the permanent partial disability closure decision dated August 10, 2005. However, the Office of
Judges concluded that the outcome remained the same because Mr. Lambert’s January 6, 2012,
request for an additional permanent partial disability award was still outside the five year limit.
The Office of Judges stated that Mr. Lambert should have filed his request no later than August
10, 2010. The Office of Judges further concluded that Mr. Lambert’s evidence showing that he
underwent another surgery after the August 10, 2005, decision was issued is an insufficient basis
for a reopening. The Office of Judges held that Mr. Lambert failed to meet his burden of proof to
show that he filed his reopening request in a timely fashion. The Board of Review reached the
same reasoned conclusions in its decision of November 7, 2012. 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
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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:


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




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