STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

November 1, 2013 

RORY L. PERRY II, CLERK 

GREG ZANELOTTI, 

Claimant Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 11-1744 (BOR Appeal No. 2046039) 

(Claim No. 2010107111) 

MARCH WESTIN COMPANY, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Greg Zanelotti, by Robert Stultz, his attorney, appeals the decision of the West 

Virginia Workers’ Compensation Board of Review. March Westin Company, by Lynn Photiadis, 

its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated November 28, 2011, in 

which the Board affirmed a May 31, 2011, Order of the Workers’ Compensation Office of 

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

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 that the Board of Review’s decision is clearly the result of erroneous 

conclusions of law. This case satisfies the “limited circumstances” requirement of Rule 21(d) of 

the Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an 

opinion. 

Mr. Zanelotti was working for March Westin Company when he injured his right 

shoulder on September 15, 2009. The claim was held compensable for a right shoulder sprain on 

September 28, 2009. In December of 2009 Mr. Zanelotti complained of cervical pain. On 

September 20, 2010, the claims administrator denied a request to reopen the claim for additional 

temporary total disability benefits. The Office of Judges affirmed the claims administrator’s 

decision, and found that there was no evidence of a progression or aggravation of the 

compensable shoulder condition or some other facts not previously considered to warrant a 

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reopening of the claim for additional temporary total disability benefits. The Board of Review 

reached the same reasoned conclusions. 

On appeal, Mr. Zanelotti argues that according to the findings of Drs. Darmelio and 

Miele he is entitled to additional temporary total disability benefits. March Westin Company 

maintains that the need for additional temporary total disability benefits is related to Mr. 

Zanelotti’s cervical condition, and not the compensable shoulder sprain. 

We disagree with the conclusions of the Board of Review. In Memorandum Decision 

number 11-1190, this Court remanded the claim with instructions to add cervical sprain as a 

compensable component in the claim. We found that there was sufficient evidence to link Mr. 

Zanelotti’s cervical complaints to the compensable shoulder sprain. In light of this Court’s prior 

decision, combined with Mr. Zanelotti’s reopening request, it appears that there are facts 

contained in the record which have not been previously considered, and the claim should be 

reopened for further consideration of temporary total disability benefits. 

In light of this Court’s prior decision, 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 the claim is remanded with instructions to reopen the claim for further 

consideration of temporary total disability benefits. 

Reversed and Remanded. 

ISSUED: November 1, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Robin J. Davis 

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