                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                               February 5, 2013

                                                                            RORY L. PERRY II, CLERK

MCELROY COAL COMPAY,                                                      SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
Employer Below, Petitioner

vs.)   No. 11-0727	 (BOR Appeal No. 2045111)
                   (Claim No. 2004040865)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

BRUCE A. WARREN,
Claimant Below, Respondent


                             MEMORANDUM DECISION
       Petitioner McElroy Coal Company, by Edward George III, its attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. Bruce A. Warren, by
Sue Anne Howard, his attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated April 6, 2011, in which
the Board affirmed a September 24, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s February 22, 2010,
decision awarding supplemental permanent partial disability benefits only in relation to Mr.
Warren’s 2% permanent partial disability award and his 6% permanent partial disability award,
and granted him additional supplemental permanent partial disability benefits in relation to his
9% 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

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reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Mr. Warren was employed as an underground coal miner with McElroy Coal Company.
On March 27, 2004, he was injured when a boulder rolled over his pelvis and abdomen. He has
received three separate permanent partial disability awards in relation to these injuries: on June
10, 2005, he received a 9% award; on August 15, 2007, he received a 2% award; and in 2009, he
received a 6% award. On October 7, 2008, the claims administrator denied Mr. Warren’s request
for supplemental permanent partial disability benefits based on a finding that he was released to
return to work with permanent restrictions that McElroy Coal Company could not accommodate,
and on June 9, 2009, the Office of Judges affirmed the claims administrator’s decision. On
January 27, 2010, the Board of Review reversed the decision of the Office of Judges, found that
Mr. Warren’s release to return to work did not include permanent restrictions, and granted him
supplemental permanent partial disability benefits. On October 29, 2010, this Court refused
McElroy Coal Company’s petition for appeal from the Board of Review Order. Following the
January 27, 2010, Board of Review Order, the claims administrator issued a February 22, 2010,
decision stating that Mr. Warren is only entitled to supplemental permanent partial disability
benefits for the 2% award granted in 2007 and for the 6% award granted in 2009, because the 9%
award was granted before he experienced any return-to-work issues.

        In its Order reversing the claims administrator’s February 22, 2010, decision, the Office
of Judges held that Mr. Warren is entitled to supplemental permanent partial disability benefits
relating to the 9% permanent partial disability award granted on June 10, 2005. McElroy Coal
Company disputes this finding and asserts that the 9% permanent partial disability award was
granted before Mr. Warren attempted to return to work, and that he is entitled to payment of
supplemental permanent partial disability benefits only for awards made after his return-to-work
issues arose.

        West Virginia Code § 23-4-6(e)(2) (2005) states: “If a claimant is released by his or her
treating physician to return to work at the job he or she held before the occupational injury
occurred and if the claimant's pre-injury employer does not offer the pre-injury job or a
comparable job to the employee when a position is available to be offered, the award for the
percentage of partial disability shall be computed on the basis of six weeks of compensation for
each percent of disability.” The Office of Judges found that if the Legislature had intended for
the Statute to be construed in the way the claims administrator interpreted it, language reflecting
such an interpretation would undoubtedly have found its way into the Statute. The Office of
Judges further found that there is no language in the Statute limiting payment of supplemental
permanent partial disability benefits only for permanent partial disability awards entered
following a release to return to work. The Board of Review reached the same reasoned
conclusion in its decision of April 6, 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

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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: February 5, 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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