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 STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

RONALD L. STEELE,

Claimant Below, Petitioner

vs.) No. 19-1167 (BOR Appeal No. 2054375)

 (Claim No. 990042282)

THE WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER,

Commissioner Below, Respondent

and

STEELE TRUCKING, INC., 

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Ronald L. Steele, by Counsel Jerome J. McFadden, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review (“Board of Review”). The West Virginia 

Office of Insurance Commissioner, by Counsel Melissa M. Strickler, filed a timely response.

By ruling dated September 19, 2018, the claims administrator denied Mr. Steele’s request 

to reopen his claim for a permanent partial disability evaluation. The Workers’ Compensation 

Office of Judges (“Office of Judges”) affirmed the claims administrator’s Order on July 3, 2019.

This appeal arises from the Board of Review’s Order dated November 22, 2019, in which the 

Board of Review affirmed the decision of the Office of Judges.

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. 

On December 8, 1998, Mr. Steele sustained an injury to his back, among other injuries,

while working as a coal truck driver. On January 13, 1999, the claims administrator found the 

FILED

January 20, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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claim compensable for contusion of the chest wall, neck sprain, and lumbosacral sprain. Mr. Steele 

was awarded temporary total disability benefits from December 8, 1998, through June 20, 1999. 

On December 13, 2000, the Office of Judges affirmed a claims administrator’s Order of November 

3, 1999, which granted Mr. Steele a 15% permanent partial disability award. In its decision, the 

Office of Judges noted that the claim was compensable only for contusion of the chest wall, neck 

sprain, and lumbosacral sprain. On September 18, 2001, Naeem Pervaiz, M.D., sought 

authorization for a cystoscopy test regarding urological conditions related to the compensable 

injury.

In a letter dated September 12, 2018, Mr. Steele requested that his claim be reopened for a 

permanent partial disability evaluation. The reopening request included, but was not limited to, his 

urological condition. In support of his request, Mr. Steele submitted a final decision from the 

Office of Judges dated July 18, 2002, in which Mr. Steele claims the Office of Judges held his 

urological problems compensable, which warranted treatment in the claim based upon the request 

of Naeem Pervaiz, M.D., Mr. Steele’s treating urologist. The Office of Judges stated:

The record contains the report of Dr. Pervaiz, which states that the claimant 

began having [urological] difficulties following the work-related incident of 

December 8, 1998. It is the doctor’s opinion that these problems are being 

caused by the claimant’s pain from the compensable low back injury. Dr. Pervaiz 

requested approval for this cystoscopy in order to rule out urethral stricture and 

neuromuscular bladder dysfunction. No evidence was submitted to refute Dr. 

Pervaiz’s finding, so therefore, based on his opinions, the Division’s Order will 

be reversed. A cystoscopy is now authorized.

Mr. Steele further argued that pursuant to Hammons v. WVOIC, 235 W. Va. 577, 775 S.E.2d 458 

(2015), the claims administrator had an affirmative obligation to refer him for a permanent partial 

disability examination. He also asserted that the claims administrator’s Order of October 11, 1999, 

which closed the claim for temporary total disability benefits, did not provide him notice of his 

right to request a permanent partial disability evaluation. 

By claims administrator’s Order dated September 19, 2018, Mr. Steele’s request to reopen 

his claim for a permanent partial disability evaluation was denied. The claims administrator 

indicated that the decision was based upon the following:

The Order dated July 18, 2002, reversed the denial of the Division’s Order of 

March 12, 2002, which denied a cystoscopy; there is no Order accepting bladder 

or sexual dysfunction as compensable in your claim.

Mr. Steele protested the claims administrator’s decision and argued that the July 18, 2002, 

Decision of the Office of Judges established the compensability of his urological conditions and 

the matter was res judicata. He also asserted that he is entitled to a permanent partial disability 

exam when the Old Fund fails to give notice of a right to a permanent partial disability exam under 

West Virginia Code § 23-4-22.
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In a Final Decision dated July 3, 2019, the Office of Judges found that Mr. Steele’s 

urological condition was not a compensable component of the claim simply because diagnostic 

testing was authorized for further evaluation of his urological complaints. The Office of Judges 

noted that West Virginia Code of State Rules § 85-20-21 specifically permits the authorization of 

treatment for a non-compensable condition when it is determined that the non-compensable 

condition is preventing recovery by aggravating the occupational injury, which does not rise to the 

level of a finding of compensability for the condition which is being evaluated. The mere fact that 

a condition is investigated or evaluated does not make that condition compensable. Evaluation 

merely provides information to the physician about a claimant’s overall condition. The Office of 

Judges found that Mr. Steele failed to produce any evidence to show that a compensable urological 

condition had been recognized in this claim. Therefore, it was found that Mr. Steele failed to show 

an aggravation or progression of a compensable condition or some new facts not previously 

considered that would entitle him to a reopening of the claim for a permanent partial disability 

evaluation. Additionally, the Office of Judges addressed Mr. Steele’s Hammons argument by 

determining that the record shows that he received an initial permanent partial disability 

evaluation, as well as an award of permanent partial disability, for all of the recognized 

compensable conditions in the claim.

In addressing Mr. Steele’s argument that the claims administrator’s Order of October 11, 

1999, which closed the claim for temporary total disability benefits, failed to notify him of his 

right to a permanent partial disability evaluation as required by West Virginia Code § 23-4-22, the 

Office of Judges found his reliance on the statute was misplaced. The Office of Judges found that 

the statute only pertains to claims in which no permanent partial disability award has been made. 

Specifically, West Virginia Code § 23-4-22 states:

In every instance, a claim shall be a case in which no award has been made for 

the purposes of section sixteen of this article.1 In every claim closed after the 

effective date of the section, the commission shall give notice to the parties of 

the claimant’s right to a permanent partial disability evaluation. 

The Office of Judges found that the provisions of West Virginia Code § 23-4-22 do not apply in 

Mr. Steele’s claim, as his compensable conditions were properly evaluated for permanent 

disability, and he was granted a 15% permanent partial disability award for his compensable 

conditions. Accordingly, the claims administrator’s Order of September 19, 2018, was affirmed 

because Mr. Steele failed to show by a preponderance of the evidence that he is entitled to a 

reopening of the claim for a new permanent partial disability evaluation. The Board of Review 

adopted the findings of fact and conclusions of law of the Office of Judges and affirmed the 

decision in an Order dated November 22, 2019.

1 West Virginia Code § 23-4-16 establishes jurisdictional time limits for the reopening of 

claims. It holds that in claims closed without the entry of a permanent partial disability award, a 

claimant’s request to reopen must be made within five years of the date the claim was closed. In 

claims in which a permanent partial disability award has been entered, the request for reopening 

must be filed within five years of the date of the initial permanent partial disability award. 
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After review, we agree with the decision of the Office of Judges, as affirmed by the Board 

of Review. The claim is compensable only for contusion of the chest wall, neck sprain, and 

lumbosacral sprain pursuant to the claims administrator’s Order dated January 13, 1999. The 

Office of Judges correctly found that Mr. Steele’s request for a reopening of his claim for a 

permanent partial disability evaluation was unrelated to the compensable injury. His compensable 

conditions have been properly evaluated, and he was granted a 15% permanent partial disability 

award. As such, the provisions of West Virginia Code § 23-4-22 do not apply in his claim. Mr. 

Steele’s argument that the issue of reopening is res judicata is not tenable because the issue of 

whether his urological conditions are related to this claim has never been litigated previously. Any 

litigation regarding the authorization for evaluation of Mr. Steele’s condition is not the same legal 

issue and therefore, it cannot be res judicata regarding the request for a permanent partial disability 

evaluation.

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: January 20, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton