Deborah S. Best v. West Virginia Office of Insurance Commissioner/Robert E. Games, Jr.

Summary

The West Virginia Supreme Court of Appeals affirmed the Board of Review's decision denying Deborah S. Best's application for permanent total disability benefits as untimely. The court held that the application was filed nearly seven years after her initial permanent partial disability award and therefore exceeded the five-year limitation period under West Virginia Code § 23-4-16(a)(2).

Holdings

1. An application for permanent total disability benefits must be filed within the five-year period established by West Virginia Code § 23-4-16(a)(2), measured from the claimant's initial permanent partial disability award; Best's application, filed almost seven years after that award, was untimely.
2. Because Best's application was untimely, the claims administrator lacked jurisdiction to consider it, and the claims administrator did not waive the timeliness objection by initially considering the application.

Questions Presented

1. Whether Best's application for permanent total disability benefits was timely under West Virginia Code § 23-4-16(a)(2), which imposed a five-year filing period measured from the initial permanent partial disability award.
2. Whether the claims administrator waived its timeliness objection by initially considering Best's application.
3. Whether Harris v. West Virginia Office of Insurance Commissioner required a different application of the statutory time limit.

Disposition

affirmed