STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

January 7, 2016 

RORY L. PERRY II, CLERK 

LARRY D. ADAMS, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 14-0980 (BOR Appeal No. 2049321) 

(Claim No. 2001053592) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER, 

Commissioner Below, Respondent 

and 

C & C LINE COMPANY, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Larry D. Adams, by Stephen P. New, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. The 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 25, 2014, in 

which the Board affirmed a March 13, 2014, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s June 20, 2013, 

decision which corrected an April 13, 2012, decision reopening the claim for permanent total 

disability consideration and instead denied the application for permanent total disability benefits 

as untimely filed. 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. Adams, a lineman, was injured in a motor vehicle accident in the course of his 

employment on May 2, 2001. He was granted an initial permanent partial disability award on 

September 19, 2003. Mr. Adams was subsequently granted more than 50% in permanent partial 

disability awards and applied for permanent total disability benefits on May 14, 2009. The claims 

administrator initially reopened the claim on April 13, 2012, for consideration of permanent total 

disability benefits. However, the claims administrator issued a corrected decision on June 20, 

2013, denying the application because it was untimely filed. 

The Office of Judges affirmed the claims administrator’s June 20, 2013, decision in its 

March 13, 2014, Order. The Office of Judges stated that “in any claim in which an award of 

permanent disability was made, any request must be made within five years of the date of the 

initial award.” West Virginia Code § 23-4-16(a)(2) (2005). It determined that Mr. Adams was 

injured on May 2, 2001, and it is clear from the record that he received his initial permanent 

partial disability award on September 19, 2003. By April 24, 2008, the appeal processes for all 

issues of permanent partial disability were final. The Office of Judges noted that his first petition 

for permanent total disability benefits was not made until June 10, 2009. 

Mr. Adams argued before the Office of Judges that the claims administrator’s decision 

unfairly prejudices and adversely affects him; however, the Office of Judges found that he failed 

to state a law, regulation, or court precedent excusing him from filing his permanent total 

disability application outside of the applicable five year time period. Mr. Adams did argue that 

the statute of limitations was not applicable at the time of his injury and should not apply, but the 

Office of Judges determined that the argument was not persuasive. West Virginia Code § 23-4­

16 (2005) clearly states that it applies to all claims made after 1995, and Mr. Adams was injured 

in 2001. Lastly, Mr. Adams argued that he did not meet the 50% threshold for filing for 

permanent total disability benefits until December 6, 2006. The Office of Judges found that if 

that is the case, he had ample time to file for permanent total disability benefits within the five 

year time limit because the time limit did not expire in his claim until 2008. The Office of Judges 

stated that West Virginia Code § 23-4-16 is the controlling statute in this case regarding the 

reopening of claims for permanent total disability benefit consideration. It held that Mr. Adams 

had until September 19, 2008, five years after his initial permanent partial disability award, to 

file for benefits. He reached the 50% threshold months before the time frame expired, and his 

failure to apply for permanent total disability benefits within that time period is his 

responsibility. The Board of Review adopted the findings of fact and conclusions of law of the 

Office of Judges and affirmed its Order on August 25, 2014. 

On appeal, Mr. Adams argues that the five year statute of limitations was not applicable 

at the time of his injury and therefore should not apply in this case. He stated in his argument that 

the claims administrator originally granted consideration of a permanent total disability award 

and then a year later reviewed the claim and denied the application based on the running of the 

statute of limitations. He asserts that his initial award was granted in September of 2003, but it 

was on appeal until December of 2006. He argues that he did not meet the 50% threshold for 

filing until December of 2006 and once all of the information and percentages of awards were in, 

he filed his application. The West Virginia Office of the Insurance Commissioner asserts that the 

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date of injury was May 2, 2001, therefore, despite Mr. Adams’s argument to the contrary, West 

Virginia Code § 23-4-16(a)(1)-(2) (2005) applies in this claim because it applies to all claims 

filed after 1995. It argues that Mr. Adams did not file his claim until June 10, 2009, which is 

clearly outside of the five year time period. 

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

the Board of Review. West Virginia Code § 23-4-16(a)(2) provides that “in any claim in which 

an award of permanent disability was made, any request must be made within five years of the 

date of the initial award.” Mr. Adams’s initial award was granted on September 19, 2003, and he 

therefore had until September 19, 2008, to apply for permanent total disability benefits. His 

permanent partial disability awards were fully adjudicated and he reached the 50% threshold for 

applying well before the statute of limitations expired. Though the claims administrator initially 

granted consideration of a permanent total disability award on April 13, 2012, after further 

review, it correctly found that Mr. Adams’s application was untimely filed. 1 

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: January 7, 2016 

CONCURRED IN BY: 

Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

DISSENTING: 

Chief Justice Menis E. Ketchum 

1 This case deals with time limitations set forth in West Virginia Code § 23-4-16. This Court previously created an 

exception to West Virginia Code § 23-4-16 in Hammons v. West Virginia Office of the Insurance Commissioner, 

Nos. 12-1473 & 13-0312, 235 W. Va. 577, 775 S.E.2d 458 (2015). The Hammons exception does not apply in the 

current case because Mr. Adams’s permanent partial disability issues were fully adjudicated months prior to the 

expiration of the time frame and he had adequate time to file his application for permanent total disability benefits. 

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