                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               June 10, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
TIMMY D. ELLIS,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0014 (BOR Appeal No. 2047476)
                   (Claim No. 960027166)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

OLD BEN COAL COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Timmy D. Ellis, by John C. Blair, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance
Commissioner, by David L. Stuart, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated December 17, 2012, in
which the Board affirmed a July 19, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s April 15, 2008,
decision denying Mr. Ellis’s application for 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.

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        Mr. Ellis worked as a miner for Old Ben Coal Company. Mr. Ellis received several work-
related injuries throughout the course of his career and received permanent partial disability
awards based on these injuries. On December 8, 1995, he injured his neck during a rock fall. On
March 14, 1997, the claims administrator granted Mr. Ellis a 28% permanent partial disability
award. Based on this injury, Mr. Ellis filed an application for permanent total disability benefits
on August 29, 2002. His application was submitted to the Permanent Total Disability Review
Board, who found that Mr. Ellis was unable to return to coal mining. The Board, however, found
that Mr. Ellis was not permanently and totally disabled because he had residual employment
potential at the sedentary to light physical demand level. On April 15, 2008, the claims
administrator denied Mr. Ellis’s request for permanent total disability benefits. On July 19, 2012,
the Office of Judges affirmed the claims administrator’s decision. The Board of Review affirmed
the Order of the Office of Judges on December 17, 2012, leading Mr. Ellis to appeal.

        The Office of Judges concluded that the claims administrator did not have jurisdiction to
grant Mr. Ellis permanent total disability benefits. The Office of Judges determined that Mr. Ellis
did not file his application for permanent total disability benefits within the five-year statute of
limitation from the date he was granted an initial permanent partial disability award. It
determined that the initial permanent partial disability award was granted in this claim on March
14, 1997. It found that Mr. Ellis did not file his application for permanent total disability benefits
until August 29, 2002. The Office of Judges found that this failure deprived the claims
administrator of authority to consider the merits of the case and required that the application be
refused under West Virginia Code § 23-4-16(a)(2) (2005). The Board of Review adopted the
findings of the Office of Judges and affirmed its Order.

        We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Mr. Ellis did not file his application for permanent total disability benefits within five
years of March 14, 1997, when he was initially granted a permanent partial disability award. Mr.
Ellis did not meet the statutory time limits for filing his application, and under West Virginia
Code § 23-4-16(a) his request for a permanent total disability award was properly refused.

        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 10, 2014

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