STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

March 17, 2015 

RORY L. PERRY II, CLERK 

RITA H. JONES, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 13-1154 (BOR Appeal No. 2048368) 

(Claim No. 2003052220) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER, 

Commissioner Below, Respondent 

and 

TRUMBULL CORPORATION, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Rita H. Jones, by M. Jane Glauser, her attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. West Virginia Office of the Insurance 

Commissioner, by David L. Stuart, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated October 25, 2013, in 

which the Board affirmed an April 15, 2013, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 25, 

2012, decision, which denied a request for a permanent total 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. 

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Ms. Jones, a flagger, was injured in the course of her employment on May 14, 2003, 

when she was struck by a motor vehicle. The claim was held compensable for multiple 

conditions including bulging lumbar disc, injury to the lumbosacral plexus nerve root, ataxia, 

contusion of the left shoulder, contusion of the knee, closed fracture of the tibia, and sprain/strain 

of the neck. On February 9, 2006, she was granted a 25% permanent partial disability award. She 

received a 10% permanent partial disability award for the bilateral eyes on June 28, 2007. 

Finally, Ms. Jones was granted a 0.25% permanent partial disability award for bilateral hearing 

loss on June 28, 2007. On June 28, 2012, Ms. Jones completed an application for a permanent 

total disability award. She asserted that she had received a total of 45.25% in prior permanent 

partial disability awards and had a neurological independent medical evaluation that had not yet 

been completed. 

The claims administrator denied Ms. Jones’s request for a permanent total disability 

award on September 25, 2012, because the claim was time barred and Ms. Jones did not have at 

least 50% in prior permanent partial disability awards as is required by West Virginia Code § 23­

4-6(n)(1) (2005). The Office of Judges affirmed the claims administrator’s decision in its April 

15, 2013, Order. The Office of Judges found that Ms. Jones received an initial award of 

permanent partial disability benefits on February 9, 2006. The Order also closed the claim. 

Pursuant to West Virginia Code § 23-4-16(a)(2) (2005), any request to reopen, modify, adjust, or 

change the claim had to be made before February 9, 2011. Ms. Jones did not file the instant 

request for a permanent total disability award until June 26, 2012. 

Ms. Jones argued before the Office of Judges that in a September 14, 2012, 

Memorandum Decision, this Court determined that she was entitled to an initial consultation 

pursuant to West Virginia Code of State Rules § 85-20-12.4 (2005). Because this Court 

remanded the claim for a psychiatric evaluation, Ms. Jones asserted that the claim should now be 

remanded to the claims administrator for evaluation of all compensable diagnoses and following 

such evaluations, she should be permitted to file rebuttal evidence. Ms. Jones cited Harris v. 

West Virginia Office of Insurance Commissioner, No. 101060 (W.Va. Supreme Court, Jan. 19, 

2012), in support of her assertion. The Office of Judges found that Harris was distinguishable 

from the case at hand. In Harris, the claimant met the 50% threshold prior to filing his 

application. In the instant case, Ms. Jones indicated in her application that she has 45.25% in 

prior permanent partial disability awards. The Office of Judges determined that the record shows 

she has 35.25% in prior awards. Regardless, she has not met the statutory provisions of West 

Virginia Code § 23-4-6(n)(1), which requires the receipt of 50% or more in prior permanent 

partial disability awards. The Office of Judges noted that even if this Court’s September 14, 

2012, decision results in a compensable psychiatric condition or an additional permanent partial 

disability award, it would not change the fact that she has not met the required 50% threshold for 

the permanent total disability application at hand. 

In an October 25, 2013, decision, the Board of Review adopted the findings of fact and 

conclusions of law of the Office of Judges and affirmed its decision. On appeal, Ms. Jones 

argues that she is entitled to consideration of her permanent total disability application as timely 

filed upon entry of a psychiatric permanent partial disability award because she timely requested 

the addition of depression to the claim and the delay was caused by the administrative processing 

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of the claim. Further, Ms. Jones argued that to hold her responsible for administrative delays 

substantially prejudices her rights. The West Virginia Office of the Insurance Commissioner 

asserts that the permanent total disability application was untimely filed as it was beyond the five 

year statute of limitations set forth in West Virginia Code § 23-4-16(a)(2). Additionally, it 

maintained that even if the application was timely filed, Ms. Jones has not met the required 

threshold of 50% in prior permanent partial disability awards. After review, this Court agrees 

with the reasoning of the Office of Judges and the conclusions of the Board of Review. Ms. 

Jones’s application for permanent total disability benefits is time barred by West Virginia Code § 

23-4-16(a)(2). 

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: March 17, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Menis E. Ketchum 

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