                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             November 9, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
LOWE’S HOME CENTERS, INC.,                                                    OF WEST VIRGINIA

Employer Below, Petitioner

vs.)   No. 13-1291 (BOR Appeal No. 2048478)
                   (Claim No. 2004023617)

GREGORY GWINN,
Claimant Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Lowe’s Home Centers, Inc., by James W. Heslep, its attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. Gregory Gwinn, by
Otis R. Mann, Jr., his attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated November 21, 2013, in
which the Board affirmed a June 18, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges denied acknowledgement of Lowe’s Home Centers,
Inc., protest of the claims administrator’s February 28, 2013, decision which granted Mr. Gwinn
permanent total disability benefits. 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. Gwinn, an employee of Lowe’s Home Centers, Inc., was granted permanent total
disability benefits by the claims administrator on February 28, 2013, in accordance with the
recommendation of the Permanent Total Disability Review Board. Lowe’s Home Center’s Inc.,
sought to appeal the decision to the Office of Judges.

       The Office of Judges determined that it was prohibited from considering Lowe’s Home
Centers, Inc., protest by the provisions of West Virginia Code § 23-5-1(b) (2009). Pursuant to
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West Virginia Code § 23-5-1(b), there are three situations in which an employer may protest a
decision of the claims administrator. Decisions that may be protested by the employer are those
incorporating findings of the Occupational Pneumoconiosis Board, decisions made by the
Insurance Commissioner acting as administrator of claims involving funds created in West
Virginia Code § 23-5-2 (2005), or decisions made pursuant to West Virginia Code § 23-4-7a
(c)(1) (2005). The Office of Judges found that the claims administrator’s decision does not
provide any of the aforementioned scenarios which afford Lowe’s Home Centers, Inc., standing
to protest, and noted that the claims administrator’s decision was based upon that Permanent
Total Disability Board’s final recommendation. Therefore, the Office of Judges held that Lowe’s
Home Centers, Inc., had no standing to protest the claims administrator’s decision and that the
decision must therefore be affirmed. The Board of Review adopted the findings of the Office of
Judges and affirmed its conclusions.

       We agree with the reasoning and conclusions of the Board of Review. Lowe’s Home
Centers, Inc., has no standing to protest the claims administrator’s decision. The Board of
Review’s decision is consistent with this Court’s holding in Performance Coal Company v.
Hoge, No. 13-0369 (June 27, 2014) (memorandum decision).

        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: November 9, 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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