Delbert v. Murray Am. Energy, Inc.

880 S.E.2d 89

Charles G. DELBERT, Claimant Below/Petitioner,

v.MURRAY AMERICAN ENERGY, INC., Respondent Below/Respondent.

Murray American Energy, Inc., Respondent Below/Petitioner,

v.Charles G. Delbert, Claimant Below/Respondent.

No. 20-0537

No. 21-0944

Supreme Court of Appeals of West Virginia.

Submitted: September 13, 2022

Filed: November 3, 2022

M. Jane Glauser, Esq., Schrader, Companion, Duff & Law, PLLC, Wheeling, West Virginia, Counsel for Charles G. Delbert.

Aimee M. Stern, Esq., Dinsmore & Shohl, LLP, Wheeling, West Virginia, Counsel for Murray American Energy, Inc.

WOOTON, Justice:

In these consolidated appeals, claimant Charles G. Delbert ("Mr. Delbert") appeals the denial of his petition to reopen his occupational pneumoconiosis permanent partial disability claim for further evaluation. Upon seeking reopening of his permanent partial disability claim for the purpose of obtaining additional medical treatment, the tribunals below determined that West Virginia Code § 23-4-16(e) (2005) barred him from maintaining an active permanent partial disability claim alongside his pending permanent total disability claim and therefore denied his reopening petition. Subsequent to the denial of his reopening petition, Mr. Delbert's permanent total disability claim was resolved in his favor; his employer, Murray American Energy, Inc., ("Murray American"),¹ now appeals that award of permanent total disability, asserting that he does not meet the statutory criteria.

Upon careful review of the briefs of the parties, the appendix record, the arguments of the parties, and the applicable legal authority, we conclude that West Virginia Code § 23-4-16(e) does not preclude reopening of a permanent disability claim because another permanent disability claim is pending. Rather, if such claim qualifies for reopening under the statutory criteria, section 23-4-16(e) mandates that the claims be consolidated. We therefore reverse and remand for further proceedings as to Mr. Delbert's reopening petition. We further conclude that Murray American has failed to demonstrate that the lower tribunals’ determination that Mr. Delbert is permanently and totally disabled was clearly wrong, and therefore affirm the Board of Review's award of permanent total disability.

I. FACTS AND PROCEDURAL HISTORY

Mr. Delbert, now sixty-six years old and a former coal miner, has multiple occupational injuries resulting in a variety of permanent partial disability ("PPD") awards, including but not limited to an award for occupational pneumoconiosis ("OP").² Specifically at issue in the instant appeals are Mr. Delbert's attempt to reopen his OP PPD claim for further evaluation and his claim for permanent total disability ("PTD") culminating from his various impairments.

On July 31, 2014, Mr. Delbert was granted a 10% PPD award for OP; he initially protested that award but later withdrew it. Shortly after that award, on August 13, 2014, Mr. Delbert applied for PTD based on the cumulative effect of his various impairments, including the new OP award. Mr. Delbert's claim for PTD has been in various stages of litigation since that time, up to and including the instant appeal, and therefore remained active and pending before various tribunals at all times pertinent hereto.³

Approximately two years later, while his PTD claim was still being litigated, Mr. Delbert filed a petition to reopen his OP claim and made a request for oxygen treatment. He contended that more recent medical evaluations showed a worsening of his OP and that oxygen treatment was necessary as per a certificate of medical necessity submitted in support of his request. The claims administrator denied his request for oxygen therapy, finding that Mr. Delbert's 10% PPD impairment rating did not meet the required 15% impairment to qualify for durable medical equipment needed for oxygen therapy; it further found that his PO2 level was insufficient under American Thoracic Society Guidelines for oxygen therapy.⁴ In a separate order, the claims administrator denied the reopening request because Mr. Delbert's PTD claim was still pending; at this time, the appeal of his PTD denial was pending before the Board of Review ("BOR"). The claims administrator took the position that Mr. Delbert could not have both a PPD and PTD claim pending simultaneously, relying on West Virginia Code § 23-4-16(e) which provides: "A claimant may have only one active request for a permanent disability award pending in a claim at any one time. Any new request that is made while another is pending shall be consolidated into the former request."

The Office of Judges ("OOJ") affirmed the denial of oxygen therapy⁵ as well as the denial of the reopening petition due to the pendency of the PTD claim and the statutory bar to maintaining more than one active permanent disability claim simultaneously. The BOR similarly affirmed, acknowledging the OOJ's reliance on West Virginia Code § 23-4-16(e), but further agreeing that "the evidence does not establish that the claimant is entitled to a reopening of the claim[.]" Mr. Delbert did not appeal this decision.

While his PTD claim continued to be litigated, on July 22, 2019, Mr. Delbert filed a second petition for reopening of his OP claim. Mr. Delbert again asserted that, based on more recent radiological studies, his OP had worsened. He sought reopening for further evaluation of his OP impairment rating in order to obtain additional treatment, noting that "the impairment ratings for OP trigger treatment[.]" The claims administrator once again denied the reopening petition on the basis of West Virginia Code § 23-4-16(e), citing the continued pendency of Mr. Delbert's PTD claim which had been referred to the Review Board.

The OOJ similarly affirmed the denial of this second reopening petition, noting the pendency of several aspects of Mr. Delbert's PTD claim before various tribunals and reiterating that West Virginia Code § 23-4-16(e) provides that a claimant "can only have one permanent disability award in litigation at a time[.]" The OOJ further cited a memorandum decision issued by this Court as supporting its conclusion that "multiple requests for permanent impairment" cannot be "pending" simultaneously. See Pintarich v. W. Va. Off. of Ins. Comm'r , No. 15-0081, 2015 WL 7304511 (W. Va. Nov. 19, 2015) (memorandum decision). The BOR likewise affirmed the OOJ's denial of the second reopening petition on the basis of West Virginia Code § 23-4-16(e), which order Mr. Delbert now appeals.

While Mr. Delbert was litigating the denial of his second PPD reopening petition, his PTD claim was also denied—for a third and final time—based upon the Review Board's recommendation and findings that Mr. Delbert retained residual vocational potential. The Review Board determined that Mr. Delbert was suitable for brief training which would allow him to perform clerk-type, sedentary jobs. However, the OOJ reversed the claims administrator's denial and awarded Mr. Delbert PTD, which award was affirmed by the BOR. The OOJ, as affirmed by the BOR, found that Mr. Delbert was totally disabled citing certain experts’ reports which they found compelling and consistent with Mr. Delbert's residual physical and cognitive limitations. Murray American now appeals that award contending that the OOJ and BOR erred by crediting those reports over the report of a competing expert, who it claims issued a more comprehensive and reliable analysis of Mr. Delbert's residual vocational potential.

II. STANDARD OF REVIEW

Our standard of review for these consolidated appeals is statutory and governs the deference afforded to the orders on appeal. W. Va. Code § 23-5-15(d) and (e) (2021) provide, in part:

(d) If the decision of the board represents an affirmation of a prior ruling by both the commission and the Office of Judges that was entered on the same issue in the same claim, the decision of the board may be reversed or modified by the Supreme Court of Appeals only if the decision is in clear violation of constitutional or statutory provision, is clearly the result of erroneous conclusions of law, or is based upon the board's material misstatement or mischaracterization of particular components of the evidentiary record. The court may not conduct a de novo reweighing of the evidentiary record....

(e) If the decision of the board effectively represents a reversal of a prior ruling of either the commission or the Office of Judges that was entered on the same issue in the same claim, the decision of the board may be reversed or modified by the Supreme Court of Appeals only if the decision is in clear violation of constitutional or statutory provisions, is clearly the result of erroneous conclusions of law, or is so clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor of the board's findings, reasoning, and conclusions, there is insufficient support to sustain the decision. The court may not conduct a de novo reweighing of the evidentiary record.

Moreover, "this Court applies a de novo standard of review to questions of law arising in the context of decisions issued by the Board of Review." Moore v. ICG Tygart Valley, LLC , No. 20-0028, ––– W. Va. ––––, 879 S.E.2d 779, 785 (W. Va. Apr. 28, 2022). With the respective standards of review for each appeal in mind, we proceed to the issues presented.

III. DISCUSSION

Mr. Delbert's appeal presents a purely legal issue: whether West Virginia Code § 23-4-16(e) requires denial of a petition to reopen a PPD claim for further evaluation when a PTD claim is already pending. Murray American's appeal asks us to consider whether the OOJ and BOR erred in finding that Mr. Delbert meets the statutory criteria for an award of PTD. We will address each in turn.

NO. 20-0537: MR. DELBERT'S PERMANENT PARTIAL DISABILITY REOPENING APPEAL

Mr. Delbert argues that the tribunals’ application of West Virginia Code § 23-4-16(e) violates the plain language of the statute and undermines the...