STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS FILED 

February 8, 2013
 

RORY L. PERRY II, CLERK
 

ALEX ENERGY, INC., SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA 

Employer Below, Petitioner 

vs.) No. 11-0832 (BOR Appeal No. 2045280) 

(Claim No. 2010107498) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

DELMAS ROBERTS, 

Claimant Below, Respondent 

MEMORANDUM DECISION 

Petitioner Alex Energy, Inc., by Sean Harter, its attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. 

This appeal arises from the Board of Review’s Final Order dated April 22, 2011, in 

which the Board affirmed a November 10, 2010, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges reversed the claims administrator’s March 11, 2010, 

decision denying compensability of a claim for occupational hearing loss. 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. 

1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mr. Roberts worked as a heavy equipment operator for Alex Energy, Inc. He had 

previously been employed by various other employers in similar positions. On August 20, 2009, 

Mr. Roberts filed an application for workers’ compensation benefits for occupational hearing 

loss. The record demonstrates that Mr. Roberts did suffer from noise induced hearing loss prior 

to his employment with Alex Energy, Inc. The claims administrator on March 11, 2010, denied 

the application for workers’ compensation benefits. 

The Office of Judges reversed the claims administrator’s Order, and held that the 

evidence demonstrates that the claim is compensable for occupational hearing loss. Alex Energy 

disputes this finding and asserts it was a mischaracterization of the evidence to find the claim 

compensable. It notes that Mr. Roberts had substantial hearing loss prior to his employment, that 

he was provided with hearing protection during his employment, and that his hearing loss has 

progressed after his employment, suggesting other contributing factors. 

In reversing the claims administrator’s Order, the Office of Judges noted that the 

evidence establishes that Mr. Roberts has hearing loss which is at least in part due to 

occupational noise exposure. It further noted that all three physicians on record agree that Mr. 

Roberts has noise induced hearing loss, despite Dr. Wallace’s finding that Mr. Roberts does not 

have whole person impairment that should be ascribed to Alex Energy. The Office of Judges also 

noted that the evidence demonstrates that the hearing loss had worsened in audiograms after his 

employment with Alex Energy. The Office of Judges concluded that Mr. Roberts had 

demonstrated that the claim should be compensable for occupational hearing loss with a date of 

last exposure of August 20, 2009. The Board of Review reached the same reasoned conclusions 

in its decision of April 22, 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 8, 2013 

CONCURRED IN BY: 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Menis E. Ketchum 

Chief Justice Brent D. Benjamin, Disqualified 

2