James M. Hiroskey II v. W. Va. Office of Insurance Commissioner/Babcock & Wilcox Construction ( 2013 )


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  •                              STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS                                FILED
    March 27, 2013
    RORY L. PERRY II, CLERK
    JAMES M. HIROSKEY II,                                                     SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    Claimant Below, Petitioner
    vs.)   No. 11-0957 (BOR Appeal No. 2045289)
    (Claim No. 2009069113)
    WEST VIRGINIA OFFICE OF
    INSURANCE COMMISSIONER
    Commissioner Below, Respondent
    and
    BABCOCK & WILCOX CONSTRUCTION COMPANY,
    And THE HIROSKEY CORPORATION,
    Employers Below, Respondent
    MEMORANDUM DECISION
    Petitioner James M. Hiroskey II, by Anne Wandling, his attorney, appeals the decision of
    the West Virginia Workers’ Compensation Board of Review. Babcock & Wilcox Construction
    Company, by Gary Nickerson and James Heslep, its attorneys, filed a timely response.
    This appeal arises from the Board of Review’s Final Order dated May 26, 2011, in which
    the Board modified a November 15, 2010, Order of the Workers’ Compensation Office of
    Judges. In its Order, the Office of Judges modified the claims administrator’s November 27,
    2008, decision rejecting the claim for workers’ compensation 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.
    1
    Mr. Hiroskey was working as a pipefitter for Babcock & Wilcox Construction when he
    alleged that he suffered an injury to his back. He had also suffered an injury to his back in 2005
    while working for the Hiroskey Corporation. The claims administrator denied Mr. Hiroskey’s
    claim for workers’ compensation benefits on November 27, 2008, finding that an injury did not
    occur in the course of or as a result of his employment. The Office of Judges modified the claims
    administrator’s Order, and held that the November 12, 2008, incident was actually a progression
    or aggravation of the previous work-related injury.
    The Board of Review modified the Office of Judges’ Order and held that Mr. Hiroskey
    was not entitled to additional benefits in the 2005 claim due to his involvement in workers’
    compensation fraud. Mr. Hiroskey pled guilty to workers’ compensation fraud in a claim
    involving a back injury on September 9, 2005. The Office of Judges concluded that the evidence
    established that the incident on November 12, 2008, was actually a progression or aggravation of
    that back injury from 2005, rather than a new injury. The Board of Review agreed with the
    conclusion of the Office of Judges. However, as the Board of Review noted, under West Virginia
    Code § 61-3-24f(4) (2005), a person who is convicted of workers’ compensation fraud shall no
    longer receive any compensation as a result of any alleged injury or disease. Therefore, the
    Board of Review found that any benefits Mr. Hiroskey would have received as a result of the
    progression or aggravation of the September 9, 2005, injury are barred. 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: March 27, 2013
    CONCURRED IN BY:
    Chief Justice Brent D. Benjamin
    Justice Robin J. Davis
    Justice Margaret L. Workman
    Justice Menis E. Ketchum
    Justice Allen H. Loughry II
    2
    

Document Info

Docket Number: 11-0957

Filed Date: 3/27/2013

Precedential Status: Precedential

Modified Date: 10/30/2014