ACNR Resources v. Miller - Workers' Comp Appeal Decision

1 STATE OF WEST VIRGINIA SUPREME CO URT OF APPEALS ACNR Resources, Inc., Employer Below, Petitioner v.) No. 25-662 (JCN: 2024005293) (ICA No. 25-ICA-15) Ronald Miller, Claimant Below, Respondent MEMORANDUM DECISION Petitioner ACNR Resourc es, Inc. appeals the August 6, 2025, decision of the Intermediate Court of Appeals of West Virginia (“ ICA ”). See ACNR Resources, Inc. v. Miller, No. 25-ICA-15, 2025 WL 2238267 (W. Va. Ct. App. Aug. 6, 2025) (memorandum decision). Respondent Ronald Miller filed a timely response. 1 The issue on appeal is whether the ICA erred in affirming the December 11, 2024, decisi on of the West Virgin ia Workers’ Compensation Board of Review, which reversed the cl aim administrator’s Nove mber 13, 2023, o rder g ranting 2.4% perm anent partial disability for occupational hearing loss. Instead, the Board of Review granted 8.25% permanent partial disability. Upon our review, we determine that oral argument is unnecessary and that a memorandum d ecision affirming the ICA’s decision is appropriate. See W. Va. R. App. P. 21. The employer asserts that, before it hired the clai mant in 2012, a preemployment hearing test was performe d. The 2012 audiogram showed that the claimant had a 5.85% hearing impairment. When the claimant saw Joedy L. Daristotle, M.D., in November 2023, that hearing test showed that the claimant had an 8.25% hearing impairment. Given the prior audiogram showing a 5.85% hearing impairment in 2012, the employer argues that Dr. Daristotle properly deducted th at preexisting hearing impairment fro m the 8.25% hearing impairment shown on the 2023 audiogram. Therefore, the employer argues that this Cou rt should reverse the ICA and reinstate the claim administrator’s order gra nting 2.4% permanent partial disability for occupational hearing loss. The claimant counters by arguing that in Syllabus P oint 2 of Pioneer Pipe, Inc. v. Sw ain, 237 W. Va. 722, 791 S.E.2d 168 (2016), this Court held that West Virginia Code § 23-4-6b(g) provid es that the Insurance Commissioner ha s the discretion to decide “ whether to allocate and divi de ch arges for a hearing loss claim between various employers, or to charge 1 The employer appe ars b y counsel Aimee M. Stern, and th e claimant appears by counsel William B. Gerwig III. FILED February 13, 2026 C. CASEY FORBES, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

2 only one employer. ” Thus, under the Insurance Commissioner’s policy upheld in Pioneer Pipe, because the employer employed the claimant on his date of last exposur e to hazardous levels o f noise, the employer is charged with all of the c lai mant’s occupational hearing loss. Therefore, the claimant argues th at the Board of Review, as affirmed by the ICA, properly reversed the claim administrator and granted the claimant 8.25% perm anent partial disability for occupational hearing loss. In addition to basing its d ecision on Pioneer Pipe, the Board of Review also found that the 2012 audiogram, upon which the employer relies to show that the claimant alrea dy had hearing impairment at the time it hired him, was unreliable. In affirming the B oard of Review’s decision, the ICA stated that “[t] he Board correctly found that the 2012 audiogram did not meet the requirements s et forth in [W. V a. Code R.] § 85- 20-47.1.” ACNR Resources, 2025 WL 2238267 at *3. This C ourt reviews questions of law de novo, whi le we accord deference to the Board of Review’s findings of fact unless the findings are clearly wrong. Syl. Pt. 3, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024). Upon consideration of the record and briefs, we find no reversible error and therefore summarily affirm. See W. Va. R. App. P. 21(c). Affirmed. ISSUED: February 13, 2026 CONCURRED IN BY: Chief Justice C. Haley Bunn Justice William R. Wooton Justice Charles S. Trump IV Justice Thomas H. Ewing Justice Gerald M. Titus III