                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                               February 14, 2013

                                                                            RORY L. PERRY II, CLERK

ALBERT R. LITTLETON,                                                      SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-0540	 (BOR Appeal No. 2045070)
                   (Claim No. 2000045373)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

ASPLUNDH TREE EXPERT CO.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Albert R. Littleton, by William C. Gallagher, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Asplundh Tree Expert, by
Lucinda L. Fluharty, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated February 24, 2011, in
which the Board affirmed a September 8, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s March 18, 2010,
Order denying claimant’s application for permanent total disability benefits. The Court has
carefully reviewed the records, written arguments, and appendices contained in the petition, and
the case is mature for consideration.

        Having considered the petition and the relevant decision of the lower tribunal, the Court
is of the opinion that the decisional process would not be significantly aided by oral argument.
Upon consideration of the standard of review, the Court determines that there is no prejudicial
error. This case does not present a new or significant question of law. For these reasons, a
memorandum decision is appropriate under Rule 21 of the Revised Rules of Appellate
Procedure.

                                                1
        On July 26, 2000, Mr. Littleton was driving to work in a van and the tire blew, causing
him to lose control and be injured. The injury was held compensable by the claims administrator
in July of 2002. By September 19, 2003, the claims administrator granted a permanent partial
disability award for 31% whole body impairment for right arm, head, ankle, and pelvis injuries.
On April 12, 2004, it also granted a 13% impairment award for psychiatric conditions, and in
September 7, 2007, it increased the overall impairment by 8%, for a total of 52% whole person
impairment.

        On March 8, 2010, Mr. Littleton applied for permanent total disability benefits. Mr.
Littleton admits that the September 7, 2007, Order of the claims administrator noted that the
claim may be reopened twice within five years of the initial impairment rating. In its Order of
March 18, 2010, the claims administrator denied Mr. Littleton’s request for permanent total
disability award because his “initial award was issued September 19, 2003 [and it had] been
more than [five] years since [his] initial award.”

       Mr. Littleton, through counsel, asserts that the five-year limitation was not applicable at
the time of injury, and therefore it does not apply to his case. He argues that the regulations are
inconsistent with the statute they purport to implement. However, in Mr. Littleton’s brief, he
does not even mention the code provision that the Office of Judges and Board of Review relied
on, W. Va. Code § 23-4-6(a)(2). Instead, he chose to discuss W. Va. Code § 23-4-6(n)(1), which
deals with the amount of disability required in order to receive a permanent total disability
award. Mr. Littleton is correct that W. Va. Code § 23-4-6(n)(1) does not have any limitations on
the timeliness of filing. Those requirements are in W. Va. Code § 23-4-16(a)(2): “in any claim in
which an award of permanent disability was made, any request [for permanent total disability]
must be made within five years of the date of the initial award.” Mr. Littleton’s alternative
argument, that the law as it existed at the time of his injury should govern, is without avail also
due to W. Va. Code § 23-4-16(a)(2).

        The Office of Judges, in its September 8, 2010, Order affirmed the claims administrator’s
denial of permanent total disability based on the requirement that requests must be made within
five years of the date of the initial award under W. Va. Code § 23-4-16(a)(2). In its February 24,
2011, Order, the Board of Review reached the same reasoned conclusion. We agree.

        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: February 14, 2013


                                                2
CONCURRED IN BY:
Justice Robin J. Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:
Chief Justice Brent D. Benjamin
Justice Margaret L. Workman




                                  3
