IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2022 Term

 

No. 20-0537

 

CHARLES G. DELBERT, 

Claimant Below/Petitioner,

v.

MURRAY AMERICAN ENERGY, INC., 

Respondent Below/Respondent. 

 

Appeal from the Workers’ Compensation Board of Review

Case No. 2055031

REVERSED AND REMANDED

 

AND

 

No. 21-0944

 

MURRAY AMERICAN ENERGY, INC., 

Respondent Below/Petitioner,

v.

CHARLES G. DELBERT, 

Claimant Below/Respondent.

FILED

November 3, 2022

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
 

Appeal from the Workers’ Compensation Board of Review

Case No. 2056410

AFFIRMED

 

Submitted: September 13, 2022

Filed: November 3, 2022

M. Jane Glauser, Esq. Aimee M. Stern, Esq.

Schrader, Companion, Duff & Law, PLLC Dinsmore & Shohl, LLP

Wheeling, West Virginia Wheeling, West Virginia

Counsel for Charles G. Delbert Counsel for Murray American Energy, 

Inc.

 

JUSTICE WOOTON delivered the Opinion of the Court. 

 
i

SYLLABUS BY THE COURT

1. “A statutory provision which is clear and unambiguous and plainly 

expresses the legislative intent will not be interpreted by the courts but will be given full 

force and effect.” Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).

2. A petition to reopen a permanent disability claim may not be denied 

on the basis that another active, permanent disability claim is pending. Should the statutory 

criteria for reopening be met, the reopened claim must be consolidated with the existing 

permanent disability claim as mandated by West Virginia Code § 23-4-16(e) (2005).

3. “When reviewing a decision of the West Virginia Workers’

Compensation Board of Review (‘the Board’), this Court will give deference to the Board’s 

findings of fact and will review de novo its legal conclusions. The decision of the Board 

may be reversed or modified only if it (1) is in clear violation of a constitutional or statutory 

provision; (2) is clearly the result of erroneous conclusions of law; or (3) is based upon 

material findings of fact that are clearly wrong.” Syl. Pt. 1, Moran v. Rosciti Constr. Co., 

LLC, 240 W. Va. 692, 815 S.E.2d 503 (2018).
1

WOOTON, Justice:

In these consolidated appeals, claimant Charles G. Delbert (“Mr. Delbert”) 

appeals the denial of his petition to reopen his occupational pneumoconiosis permanent 

partial disability claim for further evaluation. Upon seeking reopening of his permanent 

partial disability claim for the purpose of obtaining additional medical treatment, the 

tribunals below determined that West Virginia Code § 23-4-16(e) (2005) barred him from 

maintaining an active permanent partial disability claim alongside his pending permanent 

total disability claim and therefore denied his reopening petition. Subsequent to the denial 

of his reopening petition, Mr. Delbert’s permanent total disability claim was resolved in 

his favor; his employer, Murray American Energy, Inc., (“Murray American”), 1 now 

appeals that award of permanent total disability, asserting that he does not meet the 

statutory criteria.

Upon careful review of the briefs of the parties, the appendix record, the 

arguments of the parties, and the applicable legal authority, we conclude that West Virginia 

Code § 23-4-16(e) does not preclude reopening of a permanent disability claim because

another permanent disability claim is pending. Rather, if such claim qualifies for reopening 

1 For reasons that are not readily apparent from the record, the parties appear to have 

substituted “Marshall County Coal Resources, Inc.” for the employer identified below, 

“Murray American Energy, Inc.” Because the orders from which the parties appeal identify 

the employer as Murray American Energy, Inc., we will utilize that designation in these 

consolidated appeals. 
2

under the statutory criteria, section 23-4-16(e) mandates that the claims be consolidated. 

We therefore reverse and remand for further proceedings as to Mr. Delbert’s reopening 

petition. We further conclude that Murray American has failed to demonstrate that the 

lower tribunals’ determination that Mr. Delbert is permanently and totally disabled was 

clearly wrong, and therefore affirm the Board of Review’s award of permanent total 

disability.

I. FACTS AND PROCEDURAL HISTORY

Mr. Delbert, now sixty-six years old and a former coal miner, has multiple 

occupational injuries resulting in a variety of permanent partial disability (“PPD”) awards, 

including but not limited to an award for occupational pneumoconiosis (“OP”). 2

 

Specifically at issue in the instant appeals are Mr. Delbert’s attempt to reopen his OP PPD 

claim for further evaluation and his claim for permanent total disability (“PTD”) 

culminating from his various impairments. 

On July 31, 2014, Mr. Delbert was granted a 10% PPD award for OP; he 

initially protested that award but later withdrew it. Shortly after that award, on August 13, 

2014, Mr. Delbert applied for PTD based on the cumulative effect of his various 

impairments, including the new OP award. Mr. Delbert’s claim for PTD has been in 

various stages of litigation since that time, up to and including the instant appeal, and 

2 Mr. Delbert has PPD awards for injuries to his arm, finger, cervical, thoracic, and 

lumbar spines, occupational pneumoconiosis, and depression, all of which total 59%.
3

therefore remained active and pending before various tribunals at all times pertinent 

hereto.

3

 

Approximately two years later, while his PTD claim was still being litigated, 

Mr. Delbert filed a petition to reopen his OP claim and made a request for oxygen 

treatment. He contended that more recent medical evaluations showed a worsening of his 

OP and that oxygen treatment was necessary as per a certificate of medical necessity 

submitted in support of his request. The claims administrator denied his request for oxygen 

therapy, finding that Mr. Delbert’s 10% PPD impairment rating did not meet the required 

15% impairment to qualify for durable medical equipment needed for oxygen therapy; it 

further found that his PO2 level was insufficient under American Thoracic Society 

3 The extensive litigation history of Mr. Delbert’s PTD claim is not relevant to the 

issues presently before the Court and therefore will not be detailed at length. Suffice it to 

say, however, that the issue of whether Mr. Delbert’s cumulative impairments were 

sufficient to meet the whole body impairment “threshold” for PTD was the subject of 

multiple denials and protests of his PTD claim at various levels. See W. Va. Code § 23-4-

6(n)(1) (2005) (“Upon filing an application, the claim will be reevaluated by the examining 

board or other reviewing body . . . to determine if the claimant has suffered a whole body 

medical impairment of fifty percent or more resulting from either a single occupational 

injury or occupational disease or a combination of occupational injuries and occupational 

diseases[.]”). 

 Ultimately, however, this Court affirmed the BOR’s conclusion that Mr. Delbert 

did indeed meet the whole person impairment threshold sufficient for referral of his claim 

to the PTD Review Board (“Review Board”). See Murray Am. Energy, Inc. v. Delbert, 

No. 19-0040, 2020 WL 865049 (W. Va. Feb. 21, 2020) (memorandum decision). The 

Review Board issued findings and recommendations on the lone remaining statutory 

requirement: whether Mr. Delbert is capable of engaging in substantial gainful activity. 

See discussion infra regarding W. Va. Code § 23-4-6(n)(2). This statutory requirement 

remains the lone issue presently in contention as pertains to his PTD claim and is the issue 

encompassed in Murray American’s appeal, as discussed more fully infra.
4

Guidelines for oxygen therapy. 4 In a separate order, the claims administrator denied the 

reopening request because Mr. Delbert’s PTD claim was still pending; at this time, the 

appeal of his PTD denial was pending before the Board of Review (“BOR”). The claims 

administrator took the position that Mr. Delbert could not have both a PPD and PTD claim 

pending simultaneously, relying on West Virginia Code § 23-4-16(e) which provides: “A 

claimant may have only one active request for a permanent disability award pending in a 

claim at any one time. Any new request that is made while another is pending shall be 

consolidated into the former request.” 

The Office of Judges (“OOJ”) affirmed the denial of oxygen therapy5 as well 

as the denial of the reopening petition due to the pendency of the PTD claim and the 

statutory bar to maintaining more than one active permanent disability claim

simultaneously. The BOR similarly affirmed, acknowledging the OOJ’s reliance on West 

Virginia Code § 23-4-16(e), but further agreeing that “the evidence does not establish that 

the claimant is entitled to a reopening of the claim[.]” Mr. Delbert did not appeal this 

decision. 

4 West Virginia Code of Regulations § 85-20-52 requires an impairment of 15% or 

more for the use of durable medical equipment “including oxygen delivery systems,” and 

provides that oxygen therapy “requires prior authorization and will only then be authorized 

when in compliance with the guidelines of the American Thoracic Society.” 

5 The OOJ found that a recent evaluation submitted by Mr. Delbert indicated his 

impairment remained at 10% and that the physician recommending oxygen therapy did not 

offer a contrary opinion as to Mr. Delbert’s percentage of impairment. 
5

While his PTD claim continued to be litigated, on July 22, 2019, Mr. Delbert 

filed a second petition for reopening of his OP claim. Mr. Delbert again asserted that,

based on more recent radiological studies, his OP had worsened. He sought reopening for 

further evaluation of his OP impairment rating in order to obtain additional treatment, 

noting that “the impairment ratings for OP trigger treatment[.]” The claims administrator 

once again denied the reopening petition on the basis of West Virginia Code § 23-4-16(e), 

citing the continued pendency of Mr. Delbert’s PTD claim which had been referred to the 

Review Board. 

The OOJ similarly affirmed the denial of this second reopening petition, 

noting the pendency of several aspects of Mr. Delbert’s PTD claim before various tribunals

and reiterating that West Virginia Code § 23-4-16(e) provides that a claimant “can only 

have one permanent disability award in litigation at a time[.]” The OOJ further cited a 

memorandum decision issued by this Court as supporting its conclusion that “multiple 

requests for permanent impairment” cannot be “pending” simultaneously. See Pintarich 

v. W. Va. Off. of Ins. Comm’r, No. 15-0081, 2015 WL 7304511 (W. Va. Nov. 19, 2015)

(memorandum decision). The BOR likewise affirmed the OOJ’s denial of the second 

reopening petition on the basis of West Virginia Code § 23-4-16(e), which order Mr. 

Delbert now appeals. 

While Mr. Delbert was litigating the denial of his second PPD reopening 

petition, his PTD claim was also denied—for a third and final time—based upon the 
6

Review Board’s recommendation and findings that Mr. Delbert retained residual 

vocational potential. The Review Board determined that Mr. Delbert was suitable for brief 

training which would allow him to perform clerk-type, sedentary jobs. However, the OOJ 

reversed the claims administrator’s denial and awarded Mr. Delbert PTD, which award was 

affirmed by the BOR. The OOJ, as affirmed by the BOR, found that Mr. Delbert was 

totally disabled citing certain experts’ reports which they found compelling and consistent 

with Mr. Delbert’s residual physical and cognitive limitations. Murray American now 

appeals that award contending that the OOJ and BOR erred by crediting those reports over 

the report of a competing expert, who it claims issued a more comprehensive and reliable 

analysis of Mr. Delbert’s residual vocational potential. 

II. STANDARD OF REVIEW

Our standard of review for these consolidated appeals is statutory and 

governs the deference afforded to the orders on appeal. W. Va. Code § 23-5-15(d) and (e) 

(2021) provide, in part:

(d) If the decision of the board represents an affirmation 

of a prior ruling by both the commission and the Office of 

Judges that was entered on the same issue in the same claim, 

the decision of the board may be reversed or modified by the 

Supreme Court of Appeals only if the decision is in clear 

violation of constitutional or statutory provision, is clearly the 

result of erroneous conclusions of law, or is based upon the 

board’s material misstatement or mischaracterization of 

particular components of the evidentiary record. The court may 

not conduct a de novo reweighing of the evidentiary record. . . 

.
7

(e) If the decision of the board effectively represents a 

reversal of a prior ruling of either the commission or the Office 

of Judges that was entered on the same issue in the same claim, 

the decision of the board may be reversed or modified by the 

Supreme Court of Appeals only if the decision is in clear 

violation of constitutional or statutory provisions, is clearly the 

result of erroneous conclusions of law, or is so clearly wrong 

based upon the evidentiary record that even when all inferences 

are resolved in favor of the board’s findings, reasoning, and 

conclusions, there is insufficient support to sustain the 

decision. The court may not conduct a de novo reweighing of 

the evidentiary record.

Moreover, “this Court applies a de novo standard of review to questions of law arising in 

the context of decisions issued by the Board of Review.” Moore v. ICG Tygart Valley, 

LLC, No. 20-0028, ___ W. Va. ___, ___ S.E.2d ___, 2022 WL 1262269, at *4 (W. Va. 

Apr. 28, 2022). With the respective standards of review for each appeal in mind, we 

proceed to the issues presented.

III. DISCUSSION

Mr. Delbert’s appeal presents a purely legal issue: whether West Virginia

Code § 23-4-16(e) requires denial of a petition to reopen a PPD claim for further evaluation 

when a PTD claim is already pending. Murray American’s appeal asks us to consider 

whether the OOJ and BOR erred in finding that Mr. Delbert meets the statutory criteria for

an award of PTD. We will address each in turn.
8

NO. 20-0537: MR. DELBERT’S PERMANENT PARTIAL DISABILITY REOPENING APPEAL

Mr. Delbert argues that the tribunals’ application of West Virginia Code § 

23-4-16(e) violates the plain language of the statute and undermines the entire purpose 

behind our workers’ compensation system: to ensure that workers obtain necessary 

medical treatment and compensation for compensable injuries. He contends that to deny 

him a reopening for purposes of reevaluating his OP impairment rating potentially denies 

him access to certain presumptive medical treatment for which he may now qualify if his 

OP impairment has increased. Mr. Delbert highlights the legislatively recognized 

progressive nature of OP and that the availability of certain treatment for OP is correlative 

to one’s impairment rating. Accordingly, Mr. Delbert maintains that West Virginia Code 

§ 23-4-16(e) does not mandate outright rejection of his PPD reopening petition simply 

because a PTD claim is pending, but rather expressly directs that the two claims be 

consolidated. Murray American offers little resistance, summarily arguing that West 

Virginia Code § 23-4-16(e) prohibits two permanent disability claims from coexisting. 

However, Murray American fails to address the consolidation language contained in the 

statute. 

As indicated above, West Virginia Code § 23-4-16(e) provides: “A claimant 

may have only one active request for a permanent disability award pending in a claim at 

any one time. Any new request that is made while another is pending shall be consolidated 

into the former request.” Notably, the statute makes no distinction between permanent 

partial and permanent total disability claims, rather it bars generally multiple, pending 
9

“request[s] for a permanent disability award[.]” Id. (emphasis added). And while we 

agree that the statute quite plainly precludes the pendency of multiple, active permanent 

disability requests, it expressly identifies the authorized remedy to prevent that occurrence: 

consolidation of the requests. Nowhere does the language of the statute contemplate or 

authorize outright refusal of a new “permanent disability” request merely because another 

request is pending.

In this regard, the OOJ conceded that “consolidation of dual protests is cited 

in the statute,” but disregarded this directive, reasoning that

the protest regarding the PTD denial cannot logistically be 

consolidated with the request for additional occupational 

pneumoconiosis permanent partial disability. Doing so will 

create an absurd result which could cause an endless cycle of 

remanding a finding of additional PPD to the Claim 

Administrator to review in the context of the PTD. Until the 

final ruling is issued regarding his PTD the claimant cannot 

prosecute requests for further permanent partial disability.

However, regardless of the practical implications alluded to by the OOJ with respect to 

consolidation of multiple permanent disability claims, that is expressly what the statute 

directs it to do. It is therefore of no consequence to the analysis that the OOJ perceives an 

“absurdity” or “logistical” problem with consolidation; a statute without ambiguity must 

simply be applied. See Syl. Pt. 1, Dunlap v. State Comp. Dir., 149 W. Va. 266, 140 S.E.2d 

448 (1965) (“Where the language of a statute is plain and unambiguous, there is no basis 

for application of rules of statutory construction; but courts must apply the statute 

according to the legislative intent plainly expressed therein.”).
10

Further, the OOJ and BOR’s reliance on this Court’s decision in Pintarich is 

misplaced. Not only does Pintarich not support outright rejection of Mr. Delbert’s 

reopening petition, it expressly directs that the consolidation language in the statute be 

given force and effect. In Pintarich, the claimant filed a request for PTD in 1991, which 

was denied by the claims administrator and affirmed by the OOJ; the claimant appealed to 

the BOR. 2015 WL 7304511, at *1. While that appeal was pending before the BOR, the 

claimant filed another PTD request in 1998. Id. Upon reversing the claims administrator’s 

rejection of the second PTD request, the OOJ concluded that West Virginia Code § 23-4-

16(e) only prevents two applications from pending before the claims administrator, but

“does not bar against a new application being filed while a prior is pending in litigation.” 

Id. The BOR disagreed, finding the second request barred by operation of the statute, and 

that the evidence presented in the second request had already been considered and rejected 

in the first PTD request. Id. at *4.

This Court agreed with the “reasoning and conclusions” of the BOR and 

found that “[t]he statute prevents two applications for permanent total disability benefits 

from being considered at the same time.” Id. at *5. More importantly, however, the Court 

likewise agreed with the conclusion of the BOR that “the current litigation should not have 

ensued because the 1998 permanent total disability application should have been 
11

consolidated into the 1991 application.” Id. at *4 (emphasis added).

6

 Like the duplicative 

“permanent disability” requests in Pintarich, West Virginia Code § 23-4-16(e) requires 

consolidation of Mr. Delbert’s dual “permanent disability” claims should reopening be 

warranted.

Alternatively, Murray American urges that even if West Virginia Code § 23-

4-16(e) does not prohibit reopening of Mr. Delbert’s PPD claim, the petition was properly 

denied because he failed to make the required showing of a “progression or aggravation”7

of his OP in the evidence submitted in support of his petition. We readily dispense with 

this argument. Whether Mr. Delbert’s evidence was sufficient to meet the statutory criteria 

for reopening was neither addressed in, nor the basis of, the denial of the reopening petition 

on appeal at any level below. Although the strength of his evidence was discussed in the 

OOJ’s order affirming the claims administrator’s denial of his first petition for reopening

relative to his associated request for oxygen treatment, it did not form the basis of the denial 

6 Contrary to the OOJ’s order, Pintarich does not purport to address the specific 

scenario presented by Mr. Delbert’s dual PTD and PPD claims. Unlike Mr. Delbert’s 

request to reopen a PPD claim while his PTD request was being considered, the claimant 

in Pintarich filed two PTD claims, i.e. duplicative claims. Therefore, although the Court 

agreed that the claims should have been consolidated, the BOR’s rejection of the second 

PTD request was upheld primarily on the grounds of res judicata. Id. at *5.

7 West Virginia Code §§ 23-5-2 (2005) and -3 (2021) provide for “further 

adjustment” of a claim where the claimant’s application “disclose[s] a progression or 

aggravation in the claimant’s condition, or some other fact or facts which were not 

previously considered in its former findings and which would entitle the claimant to greater 

benefits than the claimant has already received[.]”
12

of the reopening petition at issue and is therefore beyond our commentary or review.8

 The 

instant reopening petition was denied exclusively because of the tribunals’ position that 

Mr. Delbert’s PPD claim could not be reopened while his PTD claim was pending as per 

West Virginia Code § 23-4-16(e).

We therefore find that our analysis of this statute is dispositively guided by 

the well-established principle that “[a] statutory provision which is clear and unambiguous 

and plainly expresses the legislative intent will not be interpreted by the courts but will be 

given full force and effect.” Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 

(1951). Finding the statutory language at issue to be unambiguous, we hold that a petition 

to reopen a permanent disability claim may not be denied on the basis that another active,

permanent disability claim is pending. Should the statutory criteria for reopening be met, 

the reopened claim must be consolidated with the existing permanent disability claim as 

mandated by West Virginia Code § 23-4-16(e).

Thus, we conclude that the denial of Mr. Delbert’s reopening petition was 

clearly the result of an erroneous conclusion of law and reverse the BOR’s June 25, 2020, 

8 As previously indicated, Murray American represents that failure to meet the 

criteria for reopening was the basis upon which Mr. Delbert’s third and most recent 

reopening petition was denied. See infra n.9. Regardless, whether Mr. Delbert has 

demonstrated a sufficient progression of his OP to warrant reopening is simply not before 

the Court in this appeal.
13

order denying Mr. Delbert’s PPD reopening petition on the basis of West Virginia Code § 

23-4-16(e). 9 We remand to the BOR for further proceedings, as appropriate.10

9 The parties’ focus on this narrow issue of law shifted during oral argument due to 

developments which occurred subsequent to Mr. Delbert’s appeal. Since the filing of Mr. 

Delbert’s appeal, he has not only received an award of PTD, but has apparently filed a third 

reopening petition, which was recently denied on the merits per Murray American’s 

counsel. While the fact of Mr. Delbert’s subsequent PTD award is properly before the 

Court by way of Murray American’s consolidated appeal of that award, the record is devoid 

of evidence regarding Mr. Delbert’s most recent reopening petition.

Regardless, Murray American appeared to suggest that the legal issue presented 

relative to West Virginia Code § 23-4-16(e) has been mooted by either or both of these 

developments. Mr. Delbert counters that his award of PTD does not obviate his need for 

reopening of his OP claim inasmuch as his impairment rating is tied to his ability to seek 

largely unrestricted medical treatment. To Murray American’s point, however, Mr. 

Delbert’s counsel likewise focused much of her argument on her speculative concern that 

even if the Court were to find that reopening was improperly denied on the basis of section

23-4-16(e), Mr. Delbert’s reopening petition is now threatened by application of this 

portion of West Virginia Code § 23-4-6(d) (2005): “Under no circumstances may the 

commission, successor to the commission, other private carrier or self-insured employer, 

whichever is applicable, grant an additional permanent disability award to a claimant 

receiving a permanent total disability award[.]” Mr. Delbert’s counsel urged the Court to 

address the propriety of denying reopening of an OP claim where a PTD award has been 

made, arguing that OP is a well-established progressive disease necessitating monitoring 

and reevaluation to ensure claimants receive statutorily guaranteed medical treatment.

With regard to Murray American’s suggestion of mootness, we find that neither of 

these developments moot the issue presented. First, Mr. Delbert’s most recent reopening 

denial is not a matter appearing in our record, and therefore the Court declines to speculate 

on its effect, if any, on the issue squarely before the Court. In contrast, however, the effect 

of Mr. Delbert’s PTD award on remand of the instant, or any subsequent, petition for 

reopening is an issue which is not yet ripe. “‘As compared to mootness, which asks 

whether there is anything left for the court to do, ripeness asks whether there yet is any 

need for the court to act.’” State Farm Mut. Auto. Ins. Co. v. Schatken, 230 W. Va. 201, 

210 n.6, 737 S.E.2d 229, 238 n.6 (2012) (quoting 13B Fed. Prac. & Proc. Juris. § 3532.1 

(3d ed.)). The reopening petition at issue was denied solely because of the pendency of 

Mr. Delbert’s PTD claim with reliance on section 23-4-16(e); none of the tribunals below, 

(continued . . .)
14

NO. 21-0944: MURRAY AMERICAN’S PERMANENT TOTAL DISABILITY APPEAL

Turning now to Murray American’s appeal, as previously stated, while Mr. 

Delbert’s OP PPD reopening appeal was pending, he was granted PTD as a result of his 

cumulative disabilities. The Review Board initially found that Mr. Delbert was not 

permanently and totally disabled, crediting the report of Erin Saniga, a vocational 

rehabilitation expert, who identified multiple entry-level, sedentary jobs within a seventyfive-mile radius that she believed Mr. Delbert could perform after brief on-the-job or 

vocational training. The Review Board underscored Mr. Delbert’s ability to acquire the 

skills needed to perform these jobs by highlighting the fact that he was a high school 

graduate with one year of college, paralegal and foreman certificates, and a superior IQ. 

However, the OOJ reversed, finding that Mr. Delbert had not worked since 

2009, had been granted Social Security Disability, and that two physicians have found him 

permanently and totally disabled. The OOJ credited the countervailing reports of 

vocational rehabilitation experts Michelle Moore and Catherine Phyllis-Harvey, whose

to our knowledge, have yet ruled upon whether Mr. Delbert’s OP reopening petition is 

affected by his PTD award. We leave to the judgment of the lower tribunals, in the first 

instance, the impact of Mr. Delbert’s PTD award and/or any subsequent developments on 

his reopening petition.

10 Since the filing of these consolidated appeals, the OOJ and BOR as existed at the

time of the underlying decisions have been reorganized. Effective October 1, 2022, the 

OOJ has been terminated and, as of July 1, 2022, the BOR has been reconstituted and 

authorized to assume the duties of the OOJ including but not limited to the authority to 

remand matters to the Insurance Commissioner, private carrier, or self-insured employer 

for further development if appropriate. See W. Va. Code §§ 23-5-8a and -9a(f) (2022).
15

reports collectively sought to discredit Ms. Saniga’s opinion that Mr. Delbert could 

perform the jobs she identified. The OOJ found Ms. Moore and Ms. Phyllis-Harvey’s

opinions more compelling in light of the entire record and agreed with their conclusions 

that, as to the potential jobs identified, Ms. Saniga failed to consider 1) Mr. Delbert’s

limited strength and cervical issues that inhibit his ability to engage in heavy computer 

usage and frequent to constant reaching; and 2) his documented cognitive/executive 

function and temperament limitations, which make him ill-suited to such jobs. The BOR 

agreed and affirmed the award of PTD. 

Murray American argues that the OOJ and BOR “erred in finding [Ms. 

Moore and] Ms. Phyllis-Harvey’s report[s] to be the most reliable evidence of Mr. 

Delbert’s vocational potential” because they did not interview him, conduct a transferrable 

skills analysis, or perform a labor market survey, as Ms. Saniga did. It argues further that 

the OOJ and BOR’s analysis improperly focused on the work previously performed by Mr. 

Delbert, rather than his capacity for work utilizing “skills or abilities which can be 

acquired”:

For all awards made on or after the effective date of the 

amendment and reenactment of this section during the year two 

thousand three, disability which renders the injured employee 

unable to engage in substantial gainful activity requiring skills 

or abilities which can be acquired or which are comparable to 

those of any gainful activity in which he or she has previously 

engaged with some regularity and over a substantial period of 

time shall be considered in determining the issue of total 

disability. . . . Geographic availability of gainful employment 

within a driving distance of seventy-five miles from the 

residence of the employee or within the distance from the 
16

residence of the employee to his or her preinjury employment, 

whichever is greater, will be a factor in determining permanent 

total disability.

W. Va. Code § 23-4-6(n)(2) (emphasis added). Mr. Delbert countersthat Murray American 

merely seeks to have this Court re-weigh the fact-finding performed by the lower tribunals. 

We agree.

As indicated above, this Court may reverse the BOR’s decision only if the 

decision is “so clearly wrong based upon the evidentiary record that even when all 

inferences are resolved in favor of the board’s findings, reasoning, and conclusions, there 

is insufficient support to sustain the decision.” Id. § 23-5-15(e). Critically, however, “[t]he 

court may not conduct a de novo reweighing of the evidentiary record.” Id. This Court 

has similarly held that

[w]hen reviewing a decision of the West Virginia 

Workers’ Compensation Board of Review (“the Board”), this 

Court will give deference to the Board’s findings of fact and 

will review de novo its legal conclusions. The decision of the 

Board may be reversed or modified only if it (1) is in clear 

violation of a constitutional or statutory provision; (2) is clearly 

the result of erroneous conclusions of law; or (3) is based upon 

material findings of fact that are clearly wrong.

Syl. Pt. 1, Moran v. Rosciti Constr. Co., LLC, 240 W. Va. 692, 815 S.E.2d 503 (2018).

Here, the OOJ and BOR simply found the opinions of Ms. Moore and Ms. 

Phyllis-Harvey more persuasive than Ms. Saniga’s and their opinions better reflective of 

the evidentiary record. West Virginia Code § 23-4-1g (2003) requires the fact-finder to 
17

weigh the competing evidence including “an assessment of the relevance, credibility, 

materiality and reliability that the evidence possesses in the context of the issue presented.” 

Tellingly, Murray American cites to no “clearly wrong” finding of fact in the OOJ or

BOR’s orders, instead arguing that the BOR was “clearly wrong in not finding Ms. Saniga’s 

reports to be the most credible evidence of Mr. Delbert’s vocational potential[.]” (emphasis 

added). This Court is statutorily required to “give deference to the board’s findings, 

reasoning, and conclusions,” which includes its credibility determinations. Id. § 23-5-

15(c).

Moreover, the OOJ did not summarily disregard Ms. Saniga’s opinion. 

Rather, the orders below thoroughly discuss, consider, and ultimately reject Ms. Saniga’s 

opinion that Mr. Delbert could learn skills to allow him to work in the identified jobs. The 

OOJ’s order, as adopted by the BOR, concludes that the record evidence does not support 

Ms. Saniga’s opinion that Mr. Delbert can work in clerk-type positions because of 1) his 

limited strength and cervical issues, for which he had undergone surgery and received a 

25% PPD award; 2) burning and numbness in his arms and legs; 3) his inability to sit for 

greater than fifteen to twenty minutes; and 4) his cognitive/executive function issues. This 

weighing of the competing evidence, as well as the reasoned processes of the various 

experts and their attendant credibility, lies within the lower tribunals’ exclusive province 

and this Court is statutorily prohibited from re-weighing it. Accordingly, we affirm the 

BOR’s October 22, 2021, order awarding Mr. Delbert PTD.
18

IV. CONCLUSION

For the reasons stated above, in Appeal No. 20-0537, we reverse the June 25, 

2020, order of the BOR and remand for further proceedings. In Appeal No. 21-0944, we 

affirm the October 22, 2021, order of the BOR.

No. 20-0537: Reversed and Remanded.

No. 21-0944: Affirmed.