West Virginia ICOA Addresses the Issue of How Many Times a Claimant May Request to Reopen a Claim for Additional TTD Benefits

In the case of?Murray American Electric v. Stapel, West Virginia Intermediate Court of Appeals, No 22-ICA-11, November 15, 2022, the West Virginia Intermediate Court of Appeals (“IOCA”) addressed the issue of the number of times a claimant may request a reopening of his claim for additional temporary total disability benefits.?

Following the injury, the claimant was granted temporary total disability.?He was then released to return to work and did, in fact, return to work.?His claim was then closed for temporary total disability (“TTD”)?benefits. The claimant worked for a short period of time but was then taken off work again due to an increase in his complaints. He applied to reopen his claim for additional TTD, which was granted.?

The claimant was again released to return to work, which he did, and his claim was then again closed for TTD benefits.?As before, he worked for a short period and was taken back off work due to an increase in his symptoms.?He applied and was granted, a reopening of his claim for additional TTD benefits.?The claimant was released for a third time to return to work.?He again worked for a period of time and was then taken off work due to an increase in his symptoms.?While off work during this period, the claimant underwent an employer’s examination with Dr. Mukkamala who found that the claimant had reached maximum medical improvement.?The claimant’s TTD benefits were suspended and his claim was subsequently closed for TTD benefits based on the findings of Dr. Mukkamala. He was also awarded permanent partial disability (“PPD”) benefits.

Subsequently, the claimant returned to work, but again he was taken off work due to an increase in his symptoms.?He applied to reopen his claim for additional TTD benefits for the third time.?His request was denied on the basis that his claim was previously reopened on two (2)?prior occasions pursuant to §23-4-16(a).?The claimant filed a protest to the Order, and the Office of Judges (“OOJ”) reversed, holding that although the claim was reopened on two (2) prior occasions prior to the award of PPD benefits, the limit of two (2) reopenings under West Virginia Code §23-4-16(a) did not apply until after a PPD award was issued.

On appeal, the ICOA noted that West Virginia Code §23-4-16(a) provides as follows:

1. Except as provided in section twenty-two of this article, in any claim which was closed without the entry of an order regarding the degree, if any, of permanent disability that a claimant has suffered, or in any case in which no award has been made, any request must be made within five years of the closure. During that time period, only two requests may be filed.
2. Except as stated below, 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. During that time period, only two requests may be filed.

?The ICOA found that West Virginia Code § 23-4-16(a)(2) applied because the claimant received a permanent partial disability award for this injury.?Therefore, it concluded that the OOJ was correct in finding that west Virginia Code § 23-4-16(a) did not prohibit the reopening of a claim for additional TTD benefits.

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