                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               June 1, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
JOSEPH R. FLUHARTY,                                                           OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0942	 (BOR Appeal No. 2049429)
                   (Claim No. 800018137)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

EASTERN ASSOCIATED COAL, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Joseph R. Fluharty, pro se, appeals the decision of the West Virginia Workers’
Compensation Board of Review. The West Virginia Office of the Insurance Commissioner, by
David Stuart, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated August 25, 2014, in
which the Board affirmed an April 11, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s March 18, 2011,
decision granting Mr. Fluharty interest on a wage adjustment differential for the period of April
26, 2002, through July 31, 2005, pursuant to this Court’s June 15, 2009, decision. 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. Fluharty was granted a permanent total disability award on March 31, 1998, with an
onset date later fixed as April 28, 1981. On April 26, 2004, he filed a request for an adjustment
to his wages forming the basis of his permanent total disability award due to incorrect
information provided by Eastern Associated Coal that prevented him from receiving cost of
living adjustments pursuant to West Virginia Code § 23-4-14(d) (2005). On June 27, 2005, the
former Workers’ Compensation Commissioner granted the requested wage adjustment for the
period from April 26, 2002, through July 31, 2005. The June 27, 2005, decision was
subsequently affirmed by the Office of Judges and Board of Review. On June 15, 2009, this
Court affirmed the decision to the extent that the Order granted a wage adjustment. However, we
remanded the claim with instructions to grant Mr. Fluharty interest on the calculated wage
differential in the amount of 6% per annum pursuant to the provisions of West Virginia Code §
23-4-16a (2005). Additionally, on November 26, 2013, this Court denied Mr. Fluharty’s petition
for a writ of mandamus requesting that we enforce the provisions of our June 15, 2009, Order.

        On March 18, 2011, the claims administrator issued a decision granting Mr. Fluharty
interest on the wage adjustment differential for the period of April 26, 2002, through July 31,
2005, pursuant to this Court’s June 15, 2009, decision. Mr. Fluharty appealed the March 18,
2011, claims administrator’s decision to the Office of Judges, which held on April 11, 2014, that
the preponderance of the evidence fails to establish that he is entitled to an additional retroactive
wage adjustment, and further held that the claims administrator fully complied with the
provisions of this Court’s June 15, 2009, Order. The Board of Review affirmed the reasoning and
conclusions of the Office of Judges in its decision dated August 25, 2014. On appeal, Mr.
Fluharty asserts that the statutory provisions in effect on the date of his initial injury, which
occurred in 1979, should apply to all subsequent issues flowing from his permanent total
disability award.

        For guidance in the determination of which statutory amendment to apply in the instant
case, the Office of Judges looked to this Court’s decision in Wampler Foods, Inc. v. Workers’
Compensation Division, 216 W.Va. 129, 146, 602 S.E.2d 805, 822 (2004), in which we stated
that an “award” means any action taken on an issue and that the law in effect on the date of said
award controls the adjudication of a particular issue, not the law in effect on the date of injury.
The Office of Judges found that the issue currently at hand, namely Mr. Fluharty’s protest of his
adjusted wages, arises from the remand of a June 27, 2005, Order and therefore determined that
the applicable law in the instant appeal is West Virginia Code § 23-4-14(d) (2005). West
Virginia Code § 23-4-14(d) (2005) provides:

       In any claim for injuries, including occupational pneumoconiosis and other
       occupational diseases, occurring on or after the first day of July, one thousand
       nine hundred seventy-one, any award for temporary total, permanent partial or
       permanent total disability benefits or for dependent benefits shall be paid at the
       weekly rates or in the monthly amount in the case of dependent benefits
       applicable to the claimant in effect on the date of the injury. In no event shall an
       award for permanent total disability be subject to annual adjustments resulting
       from changes in the average weekly wage in West Virginia.
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        The Office of Judges determined that pursuant to West Virginia Code § 23-4-14(d)
(2005), Mr. Fluharty is not entitled to any additional wage adjustments pertaining to cost of
living expenses. Further, the Office of Judges determined that pursuant to West Virginia Code of
State Rules § 85-1-3.2 (2005), which provides in part that “[t]here shall be no retroactive
adjustments to previous underpayments beyond two years”, the claims administrator properly
applied an adjustment to Mr. Fluharty’s wages beginning on April 26, 2002, which is precisely
two years prior to his April 26, 2004, request for an adjustment to his wages. Additionally, the
Office of Judges noted that Mr. Fluharty is currently receiving payments reflective of 70% of his
average weekly wage earnings, exclusive of the wage adjustment previously discussed, in full
compliance with the applicable statutory provisions at the time of his 1979 injury, as well as the
provisions of West Virginia Code § 23-4-14(d) (2005).

        The Office of Judges properly applied our reasoning set forth in Wampler to the facts of
the instant claim and correctly identified that the applicable statute concerning Mr. Fluharty’s
apparent request for an additional wage adjustment as West Virginia Code § 23-4-14(d) (2005).
As previously noted, Mr. Fluharty has already received a wage adjustment pursuant to the
provisions of West Virginia Code § 23-4-14(d) (2005), which was affirmed by this Court in our
June 15, 2009, Order. Further, it appears that Mr. Fluharty is of the belief that he is not currently
receiving permanent total disability award payments in accordance with the applicable statutory
provisions at the time of his 1979 injury. However, as noted by the Office of Judges, the record
clearly reflects that aside from the wage adjustment already received, Mr. Fluharty continues to
receive permanent total disability award payments in full compliance with the pertinent statutory
provisions in effect at the time of his injury. Finally, because the instant appeal arises from a
March 18, 2011, claims administrator’s decision solely discussing the portion of this Court’s
June 15, 2009, Order directing the payment of 6% interest per annum, we find that the Office of
Judges properly concluded that the preponderance of the evidence demonstrates that the claims
administrator has fully complied with our Order dated June 15, 2009.

        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: June 1, 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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