Fouad M. Hassan v. W. Va. Ofc. of Ins. Comm./RG Steel Wheeling ( 2017 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
FOUAD M. HASSAN, December 7, 2017
Claimant Below, Petitioner EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 17-0369 (BOR Appeal No. 2051564)
(Claim No. 2013001104)
WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent
and
RG STEEL WHEELING, LLC,
Employer Below, Respondent
MEMORANDUM DECISION
Under West Virginia Code § 23-4-24(a) (2005), no claimant shall be awarded permanent
total disability benefits who terminates active employment and is receiving full old-age
retirement benefits under the Social Security Act. Because the evidence of record shows that Mr.
Hassan terminated his active employment and is receiving full old-age Social Security benefits, it
was appropriate to dismiss his claim for permanent total disability benefits. Further, the facts and
legal arguments are adequately presented, and the decisional process would not be significantly
aided by oral argument. Therefore, a memorandum decision is appropriate under Rule 21 of the
Rules of Appellate Procedure.
This case began when Mr. Hassan filed two applications to reopen his claim for
permanent total disability, one on March 9, 2015, and one on June 16, 2015. Mr. Hassan was
born on April 27, 1949, and was a long time employee at RG Steel Wheeling, Inc. Over the
years, Mr. Hassan suffered several compensable injuries. Mr. Hassan retired on April 21, 2011,
and began receiving Social Security Disability that same year. Mr. Hassan began receiving old
age Social Security in April of 2015 after he reached age sixty-six. On July 10, 2015, the claims
administrator denied Mr. Hassan’s permanent total disability application. Mr. Hassan appealed
the claims administrator’s decision to the Office of Judges.
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The Office of Judges determined that under West Virginia Code § 23-4-24(a), the
decision of the claims administrator should be modified to reflect that the claim is re-opened for
permanent total disability consideration; however, Mr. Hassan is ineligible for such award. The
Office of Judges explained that West Virginia Code § 23-4-24(a), provides that no claimant shall
be awarded permanent total disability benefits who terminates active employment and is
receiving full old-age retirement benefits under the Social Security Act. The Office of Judges
found that he filed his application on March 9, 2015, turned sixty-six on April 27, 2015, and
began to receive old-age Social Security. The Office of Judges concluded that the significance of
that was that under West Virginia Code § 23-4-24(a) he could no longer introduce evidence of
his disability and could not have the claim remanded to produce evidence of his disability. The
Office of Judges noted that Patrick K. Maroney, counsel for Mr. Hassan argued that he was not
retired because he was seeking another job. The Office of Judges stated that it considered the
argument but found it unpersuasive. The Board of Review adopted the findings of the Office of
Judges and affirmed its Order. Brandolyn N. Felton-Ernest, counsel for the West Virginia Office
of the Insurance Commissioner, argued that he retired and was receiving old-age Social Security,
which disqualified him from permanent total disability consideration.
After review, we find that the Order of the Office of Judges, as affirmed by the Board of
Review, is correct. The Office of Judges found that Mr. Hassan retired in April of 2011. It
further found that he received old-age Social Security in April of 2015. By operation of West
Virginia Code § 23-4-24(a), Mr. Hassan was no longer eligible for permanent total disability
benefits and was barred from introducing evidence to show his disability.
Affirmed.
ISSUED: December 7, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
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