STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

DONALD L. PEGGS JR., September 12, 2013 

RORY L. PERRY II, CLERK Claimant Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 11-1728 (BOR Appeal No. 2046062) 

(Claim No. 2006038216) 

CARTER ROAG COAL COMPANY, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Donald L. Peggs Jr., by Robert Stultz, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. Carter Roag Coal Company, by 

George E. Roeder III, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated November 29, 2011, in 

which the Board affirmed a June 16, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges reversed the claims administrator’s July 28, 2010, 

decision denying authorization for a neurological consultation, and affirmed the claims 

administrator’s August 6, 2010, decision denying a request to reopen the claim for temporary 

total disability benefits. 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. Peggs was injured while working for Carter Roag Coal Company on April 26, 2006. 

On July 28, 2010, the claims administrator denied a request for authorization of a neurosurgical 

consultation. On August 6, 2010, the claims administrator denied a request to reopen the claim 

for temporary total disability benefits. 

The Office of Judges reversed the claims administrator’s July 28, 2010, decision, and 

granted a neurosurgical consultation. The Office of Judges affirmed the claims administrator’s 

August 6, 2010, decision, and held that the evidence did not demonstrate that the claim should be 

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reopened on a temporary total disability benefits basis. Mr. Peggs appeals only as to the denial of 

the request to reopen the claim. On appeal, Mr. Peggs argues that Dr. Kim certified that he was 

temporarily and totally disabled from April 7, 2010, through June 17, 2010, related that disability 

to the compensable injury, and thus, the claim should be reopened for temporary total disability 

benefits. Carter Roag Coal Company maintains that the evidence did not demonstrate that there 

had been a progression or aggravation of the compensable injury. 

The Office of Judges held that there was insufficient evidence to reopen the claim for 

additional temporary total disability benefits. It noted that the requests to reopen the claim did 

not include a determination that there was an aggravation or progression of the compensable 

injury. It further noted that Dr. Dauphin found that there had been no treatment in the claim for 

several years and that the current complaints were not due to the compensable injury. Finally, the 

Office of Judges noted that Dr. Miele opined that if Mr. Peggs had prior problems with his neck, 

that it would be less likely that the current complaint is related to the compensable injury, as 

compared to if the compensable injury was the only incident relating to his neck. It noted that the 

record demonstrates there was a cervical and lumbar strain in 2005, requiring Mr. Peggs to be off 

work. The Office of Judges concluded that the evidence did not demonstrate that the claim 

should be reopened for temporary total disability benefits. The Board of Review reached the 

same reasoned conclusions in its decision of November 29, 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: September 12, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin J. Davis 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

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