Abou Funna v. West Virginia Department of Human Services

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

ABOU FUNNA, FILED
Claimant Below, Petitioner December 4, 2025
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
v.) No. 25-ICA-210 (JCN: 2024011663) INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

WEST VIRGINIA DEPARTMENT OF HUMAN SERVICES,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Abou Funna appeals the April 4, 2025, order of the Workers’
Compensation Board of Review (“Board”). Respondent West Virginia Department of
Human Services (“WVDHS”) filed a response.1 Mr. Funna did not reply. The issue on
appeal is whether the Board erred in affirming the claim administrator’s order, which
rejected the claim.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

By order dated January 11, 2024, the claim administrator denied the claim for a date
of injury of December 20, 2023. On February 3, 2025, the Board received Mr. Funna’s
protest to the order dated January 11, 2024. On February 4, 2025, the Board sent a letter to
Mr. Funna informing him that if he wished to submit a protest to the order dated January
11, 2024, he would need to submit a written explanation showing that he is in compliance
with West Virginia Code § 23-5-1a(b), which provides that a claim administrator’s order
is final unless protested within sixty days after receipt of the order. The Board noted that
West Virginia Code § 23-5-6a provides that the time period for filing a protest may be
extended by an additional sixty days if good cause is shown. In response to the Board’s
letter, and according to the Board’s order, Mr. Funna submitted a letter dated March 16,
2025, stating the nature of his claim and his difficulty in obtaining medical care and medical
records.

1
Mr. Funna is not represented. WVDHS is represented by James W. Heslep, Esq.

1
On April 4, 2025, the Board affirmed the claim administrator’s order rejecting the
claim. The Board found that Mr. Funna failed to show good cause to accept his late protest
of the claim administrator’s order. Mr. Funna now appeals the Board’s order.

Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:

The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:

(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

Syl. Pt. 2, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024).

Mr. Funna argues that his late protest should be accepted and he should be granted
benefits because of the following: 1) he did not have a doctor and could not obtain medical
records at the time of his alleged occupational injuries; 2) when he did obtain medical care,
his physicians were uncooperative with sending his medical records to the appropriate
parties; and 3) both claims were timely reported to the claim administrator by WVDHS’s
Human Resources Department.

Here, the Board did not address the merits of Mr. Funna’s workers’ compensation
claim. Instead, the Board found that Mr. Funna failed to show good cause for his late protest
of the claim administrator’s order. The Board noted that the claim administrator’s order
was issued on January 11, 2024, and Mr. Funna did not submit a protest until approximately
a year later. The Board considered the reasoning given by Mr. Funna for his late protest
and found that this reasoning was not adequate.

Mr. Funna cites two cases in support of his arguments. In the first case, Baker v.
Centre Foundry Machine Company, No. 17-0749, 2018 WL 2261275, at *5 (W. Va. May
17, 2018) (memorandum decision), the Supreme Court of Appeals of West Virginia noted

2
that “an employee’s failure to timely apply for workers’ compensation benefits may be
excused when the failure was caused by the employer or its insurance carrier misleading
the employee to believe that filing an application for workers’ compensation is not
necessary and that he or she ‘will be taken care of.’” Baker is not helpful to Mr. Funna’s
arguments because it pertains to a late filing of a claim. Here, the issue is Mr. Funna’s filing
of a late protest to an order which rejected the claim.

The second case cited by Mr. Funna is Asplundh Tree Expert Company v. Lafon,
No. 18-0217, 2018 WL 2406043 (W. Va. May 29, 2018) (memorandum decision).
However, the facts of Asplundh are similar to Baker. The claimant in Asplundh filed his
claim late, and the Supreme Court of Appeals of West Virginia held that the claimant filed
timely because the self-insured employer had actual knowledge of the injury and the
information necessary to proceed with a workers’ compensation claim. Again, the present
issue does not concern the late filing of a claim, but the late filing of a protest to the Board;
thus, Asplundh is not applicable.

West Virginia Code § 23-5-1a(b) provides that a claim administrator’s order is
“final unless an objection to the decision is properly filed within 60 days after the receipt
of such decision. This time limitation is a condition of the right to litigate the finding or
action and hence jurisdictional.” However, under West Virginia Code § 23-5-6a, a claimant
may request a sixty-day extension of time to file an objection (also known as a protest)
with the Board by filing a request and “showing good cause or excusable neglect,
accompanied by the objection or appeal petition….” In the present case, Mr. Funna alleges
no misconduct on the part of WVDHS and only makes arguments about his difficulties in
receiving treatment for his injury and in obtaining his medical records.

Upon review, we affirm the Board’s April 4, 2025, order on other grounds apparent
in the record. See, e.g., Syl. Pt. 2, Adkins v. Gatson, 218 W. Va. 332, 624 S.E.2d 769
(2005) (“This Court may, on appeal, affirm the judgment of the lower court when it appears
that such judgment is correct on any legal ground disclosed by the record, regardless of the
ground, reason or theory assigned by the lower court as the basis for its judgment.”). The
Board concluded that Mr. Funna failed to establish good cause to accept a late protest.
However, we conclude that because Mr. Funna failed to file an appeal within 120 days of
the claim administrator’s order, the Board, pursuant to West Virginia Code §§ 23-5-1a(b)
and 23-5-6a, lacked jurisdiction to accept a late appeal. Therefore, as a matter of law,
neither this Court nor the Board have authority to grant Mr. Funna’s request to accept a
late protest.

Accordingly, we affirm the Board’s April 4, 2025, order.

Affirmed.

3
ISSUED: December 4, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

4