STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS FILED 

February 7, 2013
 

RORY L. PERRY II, CLERK
 

HASSEL R. FILLINGER, SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 11-0676	 (BOR Appeal No. 2045031) 

(Claim No. 2000008980) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

KINGSTON MINING, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Hassel R. Fillinger, by John Blair, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. Kingston Mining, Inc., by Marion Ray, 

its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated March 24, 2011, in 

which the Board affirmed a September 3, 2010, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s June 17, 2009, 

decision denying Mr. Fillinger’s request for permanent total disability benefits. 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. 

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Mr. Fillinger was working for Kingston Mining, Inc. when he was injured on July 30, 

1999. Mr. Fillinger filed an application for permanent total disability benefits on July 9, 2003. 

The claims administrator opened the claim for permanent total disability consideration because at 

the time Mr. Fillinger had been awarded a 43% permanent partial disability award. Subsequently 

the Office of Judges reduced the 43% permanent partial disability award to 29% because the 

original award included impairment for non-compensable conditions. On appeal, the Board of 

Review affirmed the 29% permanent partial disability award. This Court refused the issue on 

appeal. On June 17, 2009, the claims administrator denied the application for permanent total 

disability benefits. 

The Office of Judges held that the preponderance of the evidence establishes that the 

statutory threshold for permanent total disability benefits has not been met. It noted that Mr. 

Fillinger has received a 29% permanent partial disability award, which is well below the 

statutory threshold. The Board of Review reached the same reasoned conclusions in its decision 

of March 24, 2011. We agree with the reasoning and conclusions of the Board of Review. 

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: February 7, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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