                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               April 14, 2016
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
GEORGE K. SPEICHER,                                                           OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0794 (BOR Appeal No. 2049306)
                   (Claim No. 2003042692)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

WEIRTON STEEL CORPORATION,
Employer Below, Respondent



                             MEMORANDUM DECISION
       Petitioner George K. Speicher, by James T. Carey, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. West Virginia Office of the
Insurance Commissioner, by Jon H. Snyder, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated August 18, 2014, in
which the Board affirmed a March 12, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 10,
2012, decision to deny the request to reopen Mr. Speicher’s claim for an additional permanent
partial disability award. 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. Speicher, a steel worker for Weirton Steel Corporation, was working on September
18, 2002, when he jammed his head on a low hanging light fixture. After the injury, he was
diagnosed with a cervical strain. On March 5, 2003, Mr. Speicher filed for workers’
compensation benefits. On September 25, 2003, Mr. Speicher reported to Joseph E. Grady, M.D.,
for an independent medical evaluation. Dr. Grady found that he had reached his maximum
degree of medical improvement and suffered from 11% whole person impairment. On October
16, 2003, the claims administrator granted Mr. Speicher an 11% permanent partial disability
award. In December of 2007, it became apparent that Mr. Speicher required a C6-7 anterior
cervical discectomy and plate instrument fusion. Mr. Speicher’s surgeon, Peter C. Gerszten,
M.D., opined the surgery was necessary due to his September 18, 2002, injury and should be
covered under the claim.

       Mr. Speicher requested authorization for the discectomy and fusion seven times between
June of 2008 and May of 2011. The claims administrator determined that the surgery should not
be covered under the claim on November 11, 2011. The Office of Judges disagreed, reversed the
claims administrator, and approved the surgery on June 13, 2012. Based upon the newly
approved surgery, Mr. Speicher requested another permanent partial disability evaluation. The
claims administrator denied the request on December 10, 2012, because it determined the
application was not timely filed under West Virginia Code § 23-4-16(a)(2) (2005).

        The Office of Judges affirmed the claims administrator’s decision in its March 12, 2014,
Order. It found that Mr. Speicher’s request to reopen his case for further permanent partial
disability benefits was not timely filed and therefore, was properly denied by the claims
administrator. The Office of Judges noted that under West Virginia Code § 23-4-16(a)(2), after
an award of permanent partial disability has been made, the claimant has five years from the date
of the initial award to file any reopening requests. The Office of Judges noted that on October
16, 2003, Mr. Speicher was granted a permanent partial disability award, which started the five
year time limit. Because Mr. Speicher’s request to reopen his claim for permanent partial
disability benefits was not filed until September 14, 2012, the Office of Judges determined that
the claims administrator did not err in rejecting his request. The Board of Review adopted the
findings of the Office of Judges and affirmed its Order on August 18, 2014.

       After review, we agree with the conclusions of the Office of Judges and Board of
Review. In Syllabus Point 5 of Hammons v. W. Va. Office of Ins. Comm'r, 235 W. Va. 577, 592,
775 S.E.2d 458, 473 (2015), this Court held that:

              When a workers’ compensation claimant (1) receives an award of
              permanent partial disability (PPD) for an initial workplace injury;
              (2) timely files a reopening request pursuant to W. Va. Code § 23–
              4–16(a)(2) (2005) (Repl. Vol. 2010) seeking to add an additional,
              related injury to his/her claim; (3) such additional injury is ruled
              compensable; and (4) the Commission, or other named party, fails
              to refer the claimant for a PPD evaluation in accordance with W.
              Va. Code § 23–4–7a(f) (2005) (Repl. Vol. 2010), the claimant may
              request a PPD evaluation referral even if the time period for
               reopening the initial claim, contemplated by W. Va. Code § 23–4–
               16(a)(2), has expired.

The case at bar does not meet the narrow exception set forth in Hammons. Mr. Spiecher did not
seek to add an additional or related injury to his claim. He only sought authorization for surgery.
As a result, there was no decision issued as to a new condition’s compensability. The
Commission was not required in this instance to refer Mr. Spiecher for a permanent partial
disability evaluation because his temporary total disability benefits only ran for fifty-five days.
West Virginia Code § 23-4-7a(f) requires that they run for 120 days before the claimant must be
referred for an new independent medical evaluation. Because Mr. Spiecher did not meet steps
two, three, or four of Syllabus Point 5 of Hammons, he is not eligible for another permanent
partial disability evaluation under Hammons. Therefore, the denial of another permanent partial
disability evaluation is affirmed.

        For the foregoing reasons, we find that the decision of the Board of Review is clearly the
result of erroneous conclusions of law. Therefore, the decision of the Board of Review is
reversed and remanded with instructions to refer Mr. Speicher for a permanent partial disability
evaluation consistent with this decision.

                                                                                        Affirmed.

ISSUED: April 14, 2016

CONCURRED IN BY:
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Allen H. Loughry II

DISSENTING:
Chief Justice Menis E. Ketchum
Justice Margaret L. Workman
