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### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

DAVID R. PLYMALE, Claimant Below, Petitioner

vs.) No. 15-0025 (BOR Appeal No. 2049520) (Claim No. 2004052063)

WEST VIRGINIA OFFICE OF

INSURANCE COMMISSIONER Commissioner Below, Respondent

and

ELITE COAL SERVICES, LLC, Employer Below, Respondent

MEMORANDUM DECISION

Petitioner David R. Plymale, by Julia Callagha n, his attorney, appeals the decision of the West Virginia Workers’ Compensation Board of Review. 1 The West Virginia Office of the Insurance Commissioner, by Noah Barnes , its attorney, file d a timely response.

This appeal arises from the Board of Re view’s Final Order dated December 12, 2014, in which the Board affirmed a May 23, 2014, Order of the Workers’ Compensation Office of Judges. In its Order, the Office of Judges affi rmed the claims administrator’s September 19, 2013, decision denying Mr. Plymale’s request to reopen his claim for additional permanent partial disability benefits. The Court has carefully reviewed the records, written arguments, and appendices contained in th e 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 deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these

1 On July 9, 2015, this Court receiv ed notification that Mr. Plym ale is now represented by Dan Hardway. FILED

October 14, 2015

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate

Procedure.

Mr. Plymale sustained injuries to his ri ght hip and lumbar spine on May 14, 2004, when he slipped and fell while exiting a piece of h eavy machinery. The claim was initially held compensable for a lumbar sprain/strain, and osteoarthritis of the pelvic/thigh region was subsequently added as a compensable component of the claim. Additionally, Mr. Plymale has undergone a right hip replacement. On June 13, 2005, Mr. Plymale received a 3% permanent partial disability award for the lumbar strain . Following the addition of the right hip as a compensable component of the claim, he receiv ed a 10% permanent part ial disability award which was later increased to a 30% permanent partial disability award.

Following the compensable injury, Mr. Plymale treated with Jamie Miller, D.O., for right hip and lumbar spine pain. In addition to pain medication, she recommended treatment with the medication Zoloft secondary to depression arising from Mr. Plymale’s inability to perform daily functions. On December 16, 2004, the claims administ rator granted a request for authorization of

the medication Zoloft.

On April 4, 2013, Bobby Miller, M.D., performe d a forensic psychiatric evaluation. He diagnosed Mr. Plymale with dysthymic disorder and anxiety disorder, not otherwise specified. He then opined that the May 14, 2004, injury was a major contributor to the psychiatric disorders present and recommended a 6% permanent part ial disability award. On July 26, 2013, Mr. Plymale requested that dysthymic disorder a nd anxiety disorder be added as compensable components of the claim. The claims administrato r denied the request to add dysthymic disorder and anxiety disorder as compensable com ponents of the claim; however, the claims administrator’s decision denying th e addition of the requested dia gnoses is not contained in the evidentiary record. On September 19, 2013, the cl aims administrator denied Mr. Plymale’s request to reopen his claim for additional permanent partial disability benef its stemming from his request to add dysthymic disorder and anxiety disorder as compen sable components of the claim.

In its Order affirming the Se ptember 19, 2013, claims administ rator’s decision, the Office of Judges held that Mr. Plymale’s request to reopen his claim for additional permanent partial disability benefits is time-barred pursuant to West Virginia Code § 23-4-16(a)(2) (2005). The Board of Review affirmed the reasoning and conc lusions of the Office of Judges in its decision dated December 12, 2014. On appeal, Mr. Plymal e asserts that he is entitled to the 6% psychiatric permanent partial disabil ity award recommended by Bobby Miller, M.D. 2

2 As was noted above, Mr. Plymale is now repr esented by Mr. Hardway. In addition to the appellate brief filed on Mr. Plym ale’s behalf by Ms. Callaghan, Mr . Hardway filed a request to present additional authorities pu rsuant to West Virginia Rule of Appellate Procedure 10(i). Specifically, Mr. Hardway requested that th is Court apply the reasoning set forth in Hammons v. West Virginia Office of the Insurance Commissioner, 235 W.Va. 577, 775 S.E.2d 458 (2015) and Sheena H. for Russel H. v. Amfire, LLC, 235 W.Va. 132, 772 S.E.2d 317 (2015). After reviewing the record, it is apparent that neither the four-part test set forth by this Court in Hammons nor the reasoning set forth by this Court in Sheena H. is applicable to the fact s of the instant appeal.3 West Virginia Code § 23-4- 16(a)(2) provides that in a claim where an award of permanent impairment has been made, reopening re quests must be made within five years of the

date of the initial award. The O ffice of Judges found that the date of the initial permanent partial disability award in the instant claim was June 13, 2005, and that pursuant to West Virginia Code § 23-4-16(a)(2), Mr. Plymale had until June 1 3, 2010, to request a reope ning of his claim for additional permanent partial disability benefits . Mr. Plymale’s 2013 request to reopen his claim for additional permanent partial disability benefits occurred approximately three years after the expiration of the statutorily prescribed time fram e. Moreover, the Office of Judges noted that the diagnoses from which the request to reopen the claim stems, namely dysthymic disorder and anxiety disorder, have never been added as compensable components of the instant claim. Finally, the Office of Judges noted that although the record clea rly shows that Mr. Plymale was diagnosed with depression in 2004, he failed to offer a suffici ent explanation as to why he did not submit a request to add a psychiatric diagnos is to the instant claim until 2013. We agree with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review.

For the foregoing reasons, we find that the deci sion 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 materi al misstatement or mischaracterization of the evidentiary record. Therefore, the decision of the Board of Review is affirmed.

Affirmed.



### ISSUED: October 14, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Robin J. Davis Justice Brent D. Benjamin

Justice Menis E. Ketchum Justice Allen H. Loughry II