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IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

GORDON MARTIN, 

Claimant Below, Petitioner

vs.) No. 23-ICA-120 (JCN: 2023001857)

 

FOOD LION, INC., 

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Gordon Martin appeals the February 28, 2023, order of the Workers’ 

Compensation Board of Review (“Board”). 1 Respondent Food Lion, Inc., did not file a 

response or an appearance in the case. Petitioner did not file a reply. The issue on appeal 

is whether the Board erred in affirming the claim administrator’s order rejecting Mr. 

Martin’s claim as untimely filed.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-

11-4 (2022). After considering the parties’ arguments, the record on appeal, and the 

applicable law, this Court finds no substantial question of law and no prejudicial error. For 

these reasons, a memorandum decision affirming the Board’s order is appropriate under 

Rule 21 of the Rules of Appellate Procedure. 

By order dated July 26, 2022, the claim administrator denied Mr. Martin’s claim as 

untimely filed. In the order, the claim administrator noted its receipt of Mr. Martin’s WC1 Employees’ and Physicians’ Report of Occupational Injury form, which indicated a date 

of injury of October 7, 2021. The claim administrator found that Mr. Martin did not file his 

associated workers’ compensation claim until May 17, 2022, which was outside the sixmonth statute of limitations for filing such claims. Mr. Martin protested and submitted only 

the July 26, 2022, order in support of his protest.

By order dated February 28, 2023, the Board affirmed the claim administrator’s 

order denying the claim on the basis that it was untimely filed. The Board cited to West 

Virginia Code § 23-4-15(a) (2010), which provides:

To entitle any employee or dependent of a deceased employee to 

compensation under this chapter . . . the application for compensation shall 

be made . . . within six months from and after the injury or death, as the case 

1 Mr. Martin is self-represented. Food Lion did not appear.

FILED

September 5, 2023

EDYTHE NASH GAISER, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
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may be, and unless filed within the six months period, the right to 

compensation under this chapter is forever barred, such time limitation being 

hereby declared to be a condition of the right and hence jurisdictional[.]

The Board further noted that the West Virginia Supreme Court of Appeals (“WVSCA”)

has recognized certain circumstances in which an employee’s failure to timely file an 

application for workers’ compensation benefits may be excused. See Baker v. Ctr. Foundry 

Mach. Co., No. 17-0749, 2018 WL 2261275, at *5 (W. Va. May 17, 2018) (memorandum 

decision) (noting that an employee’s failure to timely file an application for workers’ 

compensation benefits may be excused when “the failure was caused by the employer or 

its insurance carrier misleading the employee to believe that filing an application is not 

necessary”); Blue Flame Pipeline, LLC v. Thomas, No. 20-0291, 2021 WL 2577518 (W. 

Va. June 23, 2021) (memorandum decision) (noting that an employee’s failure to timely 

file an application for workers’ compensation benefits may be excused when the employer 

and the insurance carrier had actual notice of the employee’s injury such that the employee 

has reason to believe that he has established a claim and entitlement to benefits).

However, the Board found that Mr. Martin failed to establish either of these excuses 

as the basis for his late filing. Accordingly, the Board found that Mr. Martin failed to timely 

file his claim within the six-month statute of limitations and affirmed the claim 

administrator’s denial of the claim. Mr. Martin now appeals.

Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in 

part, as follows:

The Intermediate Court of Appeals may affirm the order or decision of the 

Workers’ Compensation Board of Review or remand the case for further 

proceedings. It shall reverse, vacate, or modify the order or decision of the 

Workers’ Compensation Board of Review, if the substantial rights of the 

petitioner or petitioners have been prejudiced because the Board of Review’s 

findings are:

(1) In violation of statutory provisions;

(2) In excess of the statutory authority or jurisdiction of the Board of Review;

(3) Made upon unlawful procedures;

(4) Affected by other error of law;

(5) Clearly wrong in view of the reliable, probative, and substantial evidence 

on the whole record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly 

unwarranted exercise of discretion.

Duff v. Kanawha Cnty. Comm’n, 247 W. Va. 550, 555, 882 S.E.2d 916, 921 (Ct. App. 

2022).
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On appeal, Mr. Martin argues that his claim should not have been denied on the 

basis that it was untimely filed when his managers failed to file the application because 

each thought the other had done so. Mr. Martin further argues that he received a workers’ 

compensation prescription card, leading him to believe the claim had been processed and 

was accepted. 

Upon review, we find no error in the Board’s findings rejecting Mr. Martin’s claim

as untimely filed. As noted above, West Virginia Code § 23-4-15(a) requires that a claim 

for workers’ compensation benefits (other than occupational pneumoconiosis or other 

disease) be filed within six months of the date of the injury. The WVSCA has held that 

“the six-month time limitation in West Virginia Code § 23-4-15(a) is jurisdictional and a 

condition of the right to compensation under the Workers’ Compensation Act.” Sheena H. 

ex rel. Russell H. v. Amfire, LLC, 235 W. Va. 132, 138, 772 S.E.2d 317, 323 (2015).

Moreover, “the language of the Workers’ Compensation Act evidences an intent to limit a 

claimant’s ability to file for benefits . . . subject to strict time limitations. Such language is 

necessary to bar frivolous or outdated claims.” Id., 235 W. Va. at 138 n.4, 772 S.E.2d at 

323 n.4.

While Mr. Martin argues that his managers were at fault for failing to file his claim 

and that he was led to believe it had been processed and accepted, he failed to make any 

arguments or introduce any evidence before the Board below supporting his arguments. On 

appeal, Mr. Martin attempts to cite to a prescription card, but this prescription card was not 

submitted before the Board below and, thus, will not be considered by this Court on appeal.

“‘Our general rule is that nonjurisdictional questions . . . raised for the first time on appeal, 

will not be considered.’ Shaffer v. Acme Limestone Co., Inc., 206 W. Va. 333, 349 n.20, 

524 S.E.2d 688, 704 n.20 (1999).” Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 

818, 821, 679 S.E.2d 650, 653 (2009) (per curiam). Here, Mr. Martin filed an application 

for benefits seven months after the alleged injury and, thus, his claim was properly rejected 

as untimely filed under the statute of limitations set forth in West Virginia Code § 23-4-

15(a). Accordingly, we affirm the Board’s February 28, 2023, order.

Affirmed.

ISSUED: September 5, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear

Judge Thomas E. Scarr

Judge Charles O. Lorensen