                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             February 4, 2016
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
THOMAS L. GOODE,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0786 (BOR Appeal No. 2049147)
                   (Claim No. 2001036112)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent

and

MYSTIC ENERGY, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Thomas L. Goode, by Gregory S. Prudich, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of the
Insurance Commissioner, by Anna L. Faulker, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated July 15, 2014, in which
the Board affirmed a January 6, 2014, Order of the Workers’ Compensation Office of Judges. In
its Order, the Office of Judges affirmed the claims administrator’s August 1, 2013, decision
denying a request for temporary total disability benefits and a permanent partial disability
evaluation. 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 that the Board of Review’s decision is based upon erroneous
conclusions of law. This case satisfies the “limited circumstances” requirement of Rule 21(d) of
the Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an
opinion.
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         Mr. Goode, a mine equipment operator, injured his back on January 24, 2001, while
lifting a heavy motor. He was granted an 11% permanent partial disability award for his lower
back and right leg on April 18, 2002. On January 30, 2013, the Office of Judges reversed an
August 24, 2011, claims administrator’s decision and held the claim compensable for the
additional condition of L5-S1 disc herniation. Mr. Goode thereafter requested temporary total
disability benefits and a permanent partial disability evaluation. The claims administrator denied
his request on August 1, 2013. The Office of Judges affirmed the decision in its January 6, 2014,
Order. The Office of Judges stated that pursuant to West Virginia Code § 23-4-16(a)(1)-(2)
(2005), in any claim in which an award of permanent impairment has been made, reopening
requests must be filed within five years of the date of the initial award. In the instant claim, Mr.
Goode was granted an initial award on April 18, 2002. The Office of Judges stated that it is
therefore clear that the February 4, 2013, requests for temporary total disability benefits and a
permanent partial disability award are beyond the five year limitation. The Board of Review
adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its
Order on July 15, 2014.

        Pursuant to this Court’s recent decision in Hammons v. West Virginia Office of the
Insurance Commissioner, 235 W. Va. 577, 775 S.E.2d 458 (2015), we find that the Board of
Review’s decision is the result of erroneous conclusions of law. This Court determined that when
a claimant receives an award of permanent partial disability for a work-related injury, timely
files a reopening request seeking to add an additional compensable component, the additional
component is held compensable, and the claims administrator fails to refer the claimant for a
permanent partial disability evaluation, the claimant may request a permanent partial disability
evaluation even if the time period for reopening the initial claim has expired. In the instant case,
Mr. Goode received an initial permanent partial disability award in 2001. On January 3, 2013,
the Office of Judges held the claim compensable for the additional condition of L5-S1 disc
herniation. Mr. Goode then requested a permanent partial disability evaluation and temporary
total disability benefits. Under the aforementioned Hammons standard, Mr. Goode is entitled to a
permanent partial disability evaluation for the additional compensable condition even though the
request was made outside of the five year time period. The Court notes that West Virginia Code
§§ 23-4-16(a)(1)-(2) governs both permanent partial disability awards and temporary total
disability benefits. Mr. Goode, in this case, was unable to get temporary total disability benefits
for his L5-S1 disc herniation prior to it being added as a compensable component of the claim.
By the time the condition was added, the statute of limitations had expired. Allowing him the
opportunity for temporary total disability benefits is consistent with the Court’s reasoning in
Hammons in that it allows him access to his statutory right to receive benefits for his work-place
injury.

       For the foregoing reasons, we find that the decision of the Board of Review is the result
of erroneous conclusions of law. The decision is reversed and remanded with instructions to
allow Mr. Goode to obtain an evaluation for permanent partial disability and to allow him to
present additional evidence of his temporary total disability.


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                                                                        Reversed and Remanded.

ISSUED: February 4, 2016

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

Justice Allen H. Loughry II, dissenting:

I dissent from the majority’s decision to reverse the order of the Board of Review and remand
this case to allow Mr. Goode to obtain a permanent partial disability evaluation for his herniated
disc condition and to present additional evidence of his alleged temporary total disability as
result that condition. Mr. Goode’s workplace injury occurred on January 24, 2001, and his initial
award for permanent impairment was made on April 18, 2002. West Virginia Code § 23-4­
16(a)(2) (2010) provides that in any claim in which an award of permanent impairment has been
made, a reopening request for additional benefits must be made within five years of the date of
the initial award. Mr. Goode’s requests for additional temporary total disability benefits and a
permanent partial disability evaluation were made more than ten years after he received his
initial award. Obviously, his requests were untimely. Nonetheless, based upon its decision in
Hammons v. West Virginia Office of Ins. Comm’r, 235 W.Va. 577, 775 S.E.2d 458 (2015), the
majority has decided to afford Mr. Goode the relief he has requested.

               As I explained in my dissent in Hammons,

               [T]he Legislature has expressly indicated that workers’
               compensation claimants may not seek to reopen their claims more
               than five years after their initial awards are granted . . . .

               The majority’s conclusion that denying the claimants in these cases
               the right to reopen their claims will produce an absurd result
               contrary to legislative intent to fully compensate injured workers
               for their injuries is simply wrong. . . . West Virginia Code § 23-4­
               16(a) affords the claimants the right to seek a modification,
               change, or reopening of their prior awards. However, by allowing
               such a request to be made only two times within five years of the
               initial award, the Legislature expressly chose not to create an
               unlimited and endless right to seek increases in awards for
               permanent benefits. It is not our place to second guess the
               Legislature’s reasons for doing so.



                                                3
235 W.Va. at 600-01, 775 S.E.2d at 481-82. The majority’s decision in this case repeats the
error made in Hammons–ignoring clear statutory language to achieve a desired result. However,
even more egregious is the majority’s use of Hammons to perpetuate the erosion of the time
limitations applicable to workers’ compensation cases. In the case sub judice, Mr. Goode
untimely requested a permanent partial disability evaluation and additional temporary total
disability benefits. Although Hammons did not address an untimely request for temporary total
disability benefits, the majority summarily concludes that “this Court’s reasoning in Hammons . .
. allows [Mr. Goode] access to his statutory right to receive temporary total disability benefits for
his work place injury.” The majority extension of its holding in Hammons to this set of facts in a
memorandum decision is outrageous and violates our Rules of Appellate Procedure. Our rules
provide that memorandum decisions reversing lower tribunals should be used in limited
circumstances and are not appropriate for setting forth new precedent. See R. App. Proc. 21.
While I am not surprised by the majority’s decision in this case, I am dismayed that it has chosen
this method to further eviscerate West Virginia Code § 23-4-16(a). Accordingly, I respectfully
dissent.




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