STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

April 14, 2016 

RORY L. PERRY II, CLERK 

GEORGE K. SPEICHER, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 14-0794 (BOR Appeal No. 2049306) 

(Claim No. 2003042692) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

WEIRTON STEEL CORPORATION, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner George K. Speicher, by James T. Carey, his attorney, appeals the decision of 

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

Insurance Commissioner, by Jon H. Snyder, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated August 18, 2014, in 

which the Board affirmed a March 12, 2014, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 10, 

2012, decision to deny the request to reopen Mr. Speicher’s claim for an additional permanent 

partial 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. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mr. Speicher, a steel worker for Weirton Steel Corporation, was working on September 

18, 2002, when he jammed his head on a low hanging light fixture. After the injury, he was 

diagnosed with a cervical strain. On March 5, 2003, Mr. Speicher filed for workers’ 

compensation benefits. On September 25, 2003, Mr. Speicher reported to Joseph E. Grady, M.D., 

for an independent medical evaluation. Dr. Grady found that he had reached his maximum 

degree of medical improvement and suffered from 11% whole person impairment. On October 

16, 2003, the claims administrator granted Mr. Speicher an 11% permanent partial disability 

award. In December of 2007, it became apparent that Mr. Speicher required a C6-7 anterior 

cervical discectomy and plate instrument fusion. Mr. Speicher’s surgeon, Peter C. Gerszten, 

M.D., opined the surgery was necessary due to his September 18, 2002, injury and should be 

covered under the claim. 

Mr. Speicher requested authorization for the discectomy and fusion seven times between 

June of 2008 and May of 2011. The claims administrator determined that the surgery should not 

be covered under the claim on November 11, 2011. The Office of Judges disagreed, reversed the 

claims administrator, and approved the surgery on June 13, 2012. Based upon the newly 

approved surgery, Mr. Speicher requested another permanent partial disability evaluation. The 

claims administrator denied the request on December 10, 2012, because it determined the 

application was not timely filed under West Virginia Code § 23-4-16(a)(2) (2005). 

The Office of Judges affirmed the claims administrator’s decision in its March 12, 2014, 

Order. It found that Mr. Speicher’s request to reopen his case for further permanent partial 

disability benefits was not timely filed and therefore, was properly denied by the claims 

administrator. The Office of Judges noted that under West Virginia Code § 23-4-16(a)(2), after 

an award of permanent partial disability has been made, the claimant has five years from the date 

of the initial award to file any reopening requests. The Office of Judges noted that on October 

16, 2003, Mr. Speicher was granted a permanent partial disability award, which started the five 

year time limit. Because Mr. Speicher’s request to reopen his claim for permanent partial 

disability benefits was not filed until September 14, 2012, the Office of Judges determined that 

the claims administrator did not err in rejecting his request. The Board of Review adopted the 

findings of the Office of Judges and affirmed its Order on August 18, 2014. 

After review, we agree with the conclusions of the Office of Judges and Board of 

Review. In Syllabus Point 5 of Hammons v. W. Va. Office of Ins. Comm'r, 235 W. Va. 577, 592, 

775 S.E.2d 458, 473 (2015), this Court held that: 

When a workers’ compensation claimant (1) receives an award of 

permanent partial disability (PPD) for an initial workplace injury; 

(2) timely files a reopening request pursuant to W. Va. Code § 23– 

4–16(a)(2) (2005) (Repl. Vol. 2010) seeking to add an additional, 

related injury to his/her claim; (3) such additional injury is ruled 

compensable; and (4) the Commission, or other named party, fails 

to refer the claimant for a PPD evaluation in accordance with W. 

Va. Code § 23–4–7a(f) (2005) (Repl. Vol. 2010), the claimant may 

request a PPD evaluation referral even if the time period for 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

reopening the initial claim, contemplated by W. Va. Code § 23–4– 

16(a)(2), has expired. 

The case at bar does not meet the narrow exception set forth in Hammons. Mr. Spiecher did not 

seek to add an additional or related injury to his claim. He only sought authorization for surgery. 

As a result, there was no decision issued as to a new condition’s compensability. The 

Commission was not required in this instance to refer Mr. Spiecher for a permanent partial 

disability evaluation because his temporary total disability benefits only ran for fifty-five days. 

West Virginia Code § 23-4-7a(f) requires that they run for 120 days before the claimant must be 

referred for an new independent medical evaluation. Because Mr. Spiecher did not meet steps 

two, three, or four of Syllabus Point 5 of Hammons, he is not eligible for another permanent 

partial disability evaluation under Hammons. Therefore, the denial of another permanent partial 

disability evaluation is affirmed. 

For the foregoing reasons, we find that the decision of the Board of Review is clearly the 

result of erroneous conclusions of law. Therefore, the decision of the Board of Review is 

reversed and remanded with instructions to refer Mr. Speicher for a permanent partial disability 

evaluation consistent with this decision. 

Affirmed. 

ISSUED: April 14, 2016 

CONCURRED IN BY: 

Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Allen H. Loughry II 

DISSENTING: 

Chief Justice Menis E. Ketchum 

Justice Margaret L. Workman