                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS
                                                                                        FILED
FRANCIS E. SZALAY,                                                                     May 30, 2019
Claimant Below, Petitioner                                                       EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA

vs.)   No. 18-0506 (BOR Appeal No. 2052360)
                   (Claim No. 2017018722)

MURRAY AMERICAN ENERGY, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Francis E. Szalay, by M. Jane Glauser, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Murray American Energy, Inc., by
Denise D. Pentino and Aimee N. Stern, its attorneys, filed a timely response.

        The issue on appeal concerns Mr. Szalay’s application to reopen his claim for permanent
total disability consideration. The claims administrator denied the reopening of the claim for
permanent total disability benefits in an Order dated May 17, 2017. The Workers’ Compensation
Office of Judges, by Order entered November 22, 2017, reversed the claims administrator’s
decision and found that Mr. Szalay has met the 50% threshold under West Virginia Code § 23-4-
6(n)(1) (2018). The Office of Judges remanded the claim to the claims administrator with
directions to further process Mr. Szalay’s application consistent with West Virginia Code § 23-4-
6(n)(1) and West Virginia Code of State Rules § 85-5-1 (2006). This appeal arises from the Board
of Review’s Final Order dated May 15, 2018, in which the Board affirmed the decision of the
Office of Judges and modified the decision to reflect that Mr. Szalay may not produce additional
evidence of permanent total disability after June 18, 2017.

        The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. 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. Szalay worked at Murray American Energy Inc.’s, Ohio County Coal Company. On
November 16, 2016, he completed a Retiree Enrollment Form (“Enrollment Form”), requesting to
retire from the company effective November 16, 2016. He indicated on the Enrollment Form that
he was 65 years old. He had completed 44.75 years of signatory service at the time of his
retirement. The UMWA Health and Retirement Funds sent correspondence to Mr. Szalay on
December 2, 2016, advising that his application for a retirement pension had been approved with
an effective date being February 1, 2016.

        On February 1, 2017, Mr. Szalay filed a workers’ compensation claim for occupational
noise induced hearing loss. He was examined by Ronald Wilkinson, M.D., on January 26, 2017.
Dr. Wilkinson found 21.45% permanent impairment due to occupational noise induced hearing
loss, based upon audiology testing. By Order dated April 10, 2017, the claims administrator
granted Mr. Szalay a 10.65% permanent partial disability award, which represented the 21.45%
recommended by Dr. Wilkinson less the 10.80% permanent partial disability award previously
awarded to him in Claim No. 2003043535.

         Mr. Szalay filed an application for permanent total disability benefits on April 17, 2017.
He listed his prior permanent partial disability awards as follows: Claim No. 930034595, 19% for
a low back injury; Claim no. 20030043535, 10.8% for hearing loss; Claim No. 2016017902, 20%
for a right hip injury; and Claim No. 2017018722, 10.65% for hearing loss. The permanent partial
disability awards received by Mr. Szalay totaled 60.45%. The claims administrator issued an Order
dated May 17, 2017, denying Mr. Szalay’s application for permanent total disability benefits on
the basis that (1) he retired with a regular service pension after 44.7 years of service, thus
voluntarily removing himself from the labor market; and (2) he has not reached the required 50%
threshold needed to file for a permanent total disability award. Mr. Szalay protested the claims
administrator’s decision.

        On November 22, 2017, the Office of Judges reversed the claims administrator’s Order,
finding that Mr. Szalay had met the 50% statutory threshold for filing a permanent total disability
application. The Office of Judges concluded that the consideration of whether Mr. Szalay’s
application for permanent total disability benefits was properly rejected on the basis of accepting
a retirement pension is premature, as the claims administrator should have limited its reopening
review to the issue of whether Mr. Szalay meets the 50% threshold of West Virginia Code § 23-4-
6(n)(1).

        On May 15, 2018, the Board of Review adopted the findings and conclusions of the Office
of Judges, and modified the decision to reflect that Mr. Szalay may not produce additional evidence
of his alleged permanent total disability after June 18, 2017, due to his receipt of regular, old-age
Social Security benefits. The Board of Review affirmed the remainder of the Office of Judges
decision, including the conclusion that Mr. Szalay has met the 50% threshold set forth in West
Virginia Code § 23-4-6(n)(1).

       On appeal, Mr. Szalay argues that he should be evaluated for permanent total disability
consideration without modification on the evidence to be introduced, as directed by the Board of
Review in its Order dated May 15, 2018. In reviewing the November 22, 2017, Order of the Office
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of Judges, the Board of Review found that the analysis and conclusions were affected by error of
law insofar as West Virginia Code § 23-4-24(a) (2018) was not addressed. The Code section
provides:

         (a) Notwithstanding any provision of this chapter to the contrary, except as
         stated below, no claimant shall be awarded permanent total disability benefits
         arising under subdivision (d) or (n), section six of this article or section eight-c
         of this article who terminates active employment and is receiving full old-age
         retirement benefits under the Social Security Act, 42 U.S.C. §401 and 402. Any
         claimant shall be evaluated only for the purposes of receiving a permanent
         partial disability award premised solely upon the claimant's impairments. This
         subsection is not applicable in any claim in which the claimant has completed
         the submission of his or her evidence on the issue of permanent total disability
         prior to the later of the following: Termination of active employment or the
         initial receipt of full old-age retirement benefits under the Social Security Act.
         Once the claimant has terminated active employment and has begun to receive
         full old-age social security retirement benefits, the claimant may not produce
         additional evidence of permanent total disability nor shall the claim be remanded
         for the production of the evidence.

W. Va. Code § 23-4-24(a).

        The record indicates that Mr. Szalay last worked for the Employer on January 12, 2016,
after which he was granted Social Security Disability benefits. On December 2, 2016, his
application for a UMWA pension was approved. He filed his application for permanent total
disability benefits on April 17, 2017. Mr. Szalay began receiving regular old-age Social Security
benefits on June 18, 2017, when he turned 66 years old. The Board of Review concluded that Mr.
Szalay may not produce additional evidence of permanent total disability pursuant to W. Va. Code
§ 23-4-24(a).

        Mr. Szalay argues that the Board of Review committed reversible error because the only
issue that was on appeal was whether Mr. Szalay met the 50% threshold to be considered for
permanent total disability. After review, we agree with the Board of Review’s decision. A
preponderance of the evidence demonstrates that Mr. Szalay retired with a service pension on
November 16, 2016, and he began receiving old-age Social Security benefits on June 18, 2017,
when he turned 66 years of age. In light of Mr. Szalay receiving regular, old-age Social Security
benefits, the Board was required to prohibit him from submitting evidence of his alleged permanent
and total disability after that date as stated in West Virginia Code § 23-4-24(a).

        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.
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ISSUED: May 30, 2019

CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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