Gary E. Hammons v. W. Va. Ofc. of Insurance Comm./A & R Transport, etc.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2015 Term
FILED
May 20, 2015
No. 12-1473 released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
GARY E. HAMMONS,
Petitioner
V.
WEST VIRGINIA OFFICE OF THE INSURANCE COMMISSIONER
AND
A & R TRANSPORT, INC.,
Respondents
Appeal from the Workers’ Compensation Board of Review
Appeal No. 2046457
Claim No. 2004030436
REVERSED AND REMANDED
AND
No. 13-0312
CLARA L. STINNETT,
Petitioner,
V.
WEST VIRGINIA OFFICE OF THE INSURANCE COMMISSIONER
AND
WEST VIRGINIA DEPARTMENT OF CORRECTIONS
Respondents
Appeal from the Workers’ Compensation Board of Review
Appeal No. 2047625
Claim No. 990024403
REVERSED AND REMANDED
Submitted: January 13, 2015
Filed: May 20, 2015
George Zivkovich Patrick Morrissey
Parkersburg, West Virginia Attorney General
Attorney for the Petitioner, David L. Stuart
Gary E. Hammons Senior Deputy Attorney General
John H. Skaggs Misha Tseytlin
The Calwell Practice, PLLC General Counsel
Charleston, West Virginia Charleston, West Virginia
Attorney for the Petitioner, Attorney for the Respondent,
Clara L. Stinnett West Virginia Insurance Commissioner
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE LOUGHRY dissents and reserves the right to file a separate opinion.
SYLLABUS BY THE COURT
1. “[A]ll employees covered by the West Virginia Workers’ Compensation
Act are subject to every provision of the workers’ compensation chapter and are entitled to
all benefits and privileges under the Workers’ Compensation Act[.]” Syllabus point 3, in part,
Bell v. Vecellio & Grogan, Inc., 197 W. Va. 138, 475 S.E.2d 138 (1996).
2. “In workers’ compensation cases, upon the consideration of our statutes,
particularly W. Va. Code §§ 23-4-1, 6, and 8 (1931), all as amended, it is reasonable to
conclude that after compensability has been determined, the Workers’ Compensation
Commissioner must take the initiative in further processing the claim. The next step is to
evaluate the disability and inform the claimant of his award, if any.” Syllabus point 1, Hardy
v. Richardson, 198 W. Va. 11, 479 S.E.2d 310 (1996).
3. “It is not incumbent upon a claimant, whose claim has been held
compensable, to initiate the procedure for the evaluation of his disability; rather, it is the
obligation of the commissioner to then take such action as is necessary, including referral for
medical treatment, if needed, to arrive at the disability award, if any, to which the claimant
is entitled.” Syllabus point 2, Baker v. State Workmen’s Compensation Commissioner, 164
W. Va. 389, 263 S.E.2d 883 (1980).
i
4. “A workmen’s compensation claim must be considered in its entirety and
cannot be regarded as divisible in the sense of being barred by the provisions of Code, 1931,
23-4-16, as amended, in relation to a disability of one character, or a disability affecting one
part of the claimant’s body, but, at the same time, alive and litigable in relation to another
disability arising from the same injury but of a different character or one affecting a different
part of the claimant’s body.” Syllabus, Bowman v. Workmen’s Compensation Commissioner,
150 W. Va. 592, 148 S.E.2d 708 (1966).
5. When a workers’ compensation claimant (1) receives an award of
permanent partial disability (PPD) for an initial workplace injury; (2) timely files a reopening
request pursuant to W. Va. Code § 23-4-16(a)(2) (2005) (Repl. Vol. 2010) seeking to add an
additional, related injury to his/her claim; (3) such additional injury is ruled compensable; and
(4) the Commission, or other named party, fails to refer the claimant for a PPD evaluation in
accordance with W. Va. Code § 23-4-7a(f) (2005) (Repl. Vol. 2010), the claimant may request
a PPD evaluation referral even if the time period for reopening the initial claim, contemplated
by W. Va. Code § 23-4-16(a)(2), has expired.
ii
Davis, Justice:
The case sub judice presents appeals filed by two individuals [collectively, “the
claimants”] who sustained employment-related injuries and who seek additional workers’
compensation benefits as a result of further symptoms related to their original workplace
injuries. In both cases, the claimants timely requested that the new diagnoses be added to
their original claims, but, in both cases, denials of compensability and/or medical treatment
required extensive litigation through the workers’ compensation system until this Court
ultimately found the claimants to be entitled to the compensability ruling/medical treatment
they had requested.1 As a result of these significant litigation delays, the claimants’
subsequent requests for permanent partial disability [“PPD”] benefits associated with the
newly added diagnoses were denied by the workers’ compensation system as untimely filed
pursuant to W. Va. Code § 23-4-16(a)(2) (2005) (Repl. Vol. 2010).2 On appeal to this Court,
the claimants ask that we find their PPD requests to have been timely filed. For the reasons
that follow, we find that because the claimants timely sought to add their new diagnoses to
their original claims, their additional injuries were ruled compensable, and the Commission
failed to refer them for PPD evaluations as required by W. Va. Code § 23-4-7a(f) (2005)
(Repl. Vol. 2010), the Board of Review’s denial of their requests for PPD evaluations for their
1
Further discussion of this Court’s rulings in the claimants’ cases is set forth
in Section I, infra.
2
See note 6, infra, for the full text of W. Va. Code § 23-4-16(a)(2) (2005)
(Repl. Vol. 2010).
1
additional injuries was improper because such ruling deprived the claimants of their statutory
rights to receive a permanent disability evaluation and to be compensated for their workplace
injuries. Accordingly, we reverse the rulings of the Board of Review denying the claimants’
PPD evaluation requests as untimely and remand these cases for further proceedings
consistent with this opinion.
I.
FACTUAL AND PROCEDURAL HISTORY
While each of the claimants’ appeals herein presents the same legal issue, the
facts giving rise to their individual claims vary. Therefore, we separately will discuss the facts
relevant to each of their appeals.
A. Case Number 12-1473: Gary E. Hammons
The petitioner in Case Number 12-1473, Gary E. Hammons [“Mr. Hammons”],
sustained a work-related injury to his leg in the course of and as a result of his employment
as a truck driver with the respondent herein, A & R Transport, Inc., on January 5, 2004. Mr.
Hammons received a 4% permanent partial disability [“PPD”] award for his leg by Claims
Administrator order entered June 6, 2005. Thereafter, Mr. Hammons experienced low back
symptoms that his doctor determined also were attributable to his work-related injury and
sought to have that diagnosis added to his original workers’ compensation claim. Despite
2
repeated denials of compensability by the various workers’ compensation tribunals, this Court
ultimately ruled Mr. Hammons’ low back injury to be a compensable component of his
original work-related injury by order entered January 4, 2010. This Court also awarded Mr.
Hammons temporary total disability [“TTD”] benefits for his low back injury from October
18, 2005, through July 25, 2006. Thereafter, on March 8, 2010, the Claims Administrator
closed Mr. Hammons’ claim for TTD benefits related to his back injury.
Pursuant to W. Va. Code § 23-4-7a(f) (2005) (Repl. Vol. 2010),
whenever in any claim temporary total disability continues longer
than one hundred twenty days from the date of injury (or from the
date of the last preceding examination and evaluation pursuant to
the directions of the commission under other provisions of this
chapter), the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
shall refer the claimant to a physician or physicians of the
commission’s selection for examination and evaluation in
accordance with the provisions of subsection (d)[3] of this section
and the provisions of subsection (e)[4] of this section are fully
applicable[.]
(Emphasis and footnotes added). See also W. Va. Code § 23-4-22 (2003) (Repl. Vol. 2010)
(“In every claim closed after the effective date of this section, the commission shall give
notice to the parties of the claimant’s right to a permanent disability evaluation.”). Despite
3
W. Va. Code § 23-4-7a(d) (2005) (Repl. Vol. 2010) details the procedure to
be followed when referring a claimant for a disability evaluation.
4
Subsection (e) of W. Va. Code § 23-4-7a addresses when TTD benefits should
be suspended in a particular case.
3
the fact that Mr. Hammons met the requisite criteria for a mandatory PPD evaluation referral,
the Workers’ Compensation Commission [“Commission”] never referred him for such an
evaluation. On August 9, 2010,5 Mr. Hammons faxed a letter to the Claims Administrator
requesting a PPD evaluation with regard to his low back injury. By order entered August 11,
2010, the Claims Administrator denied Mr. Hammons’ request as an untimely request to
reopen his original claim governed by W. Va. Code § 23-4-16(a) (2005) (Repl. Vol. 2010).6
5
While the fax cover sheet was dated August 9, 2010, the subject letter was
dated April 9, 2010. Counsel for Mr. Hammons has conceded that the letter, also, should
have been dated August 9, 2010.
6
W. Va. Code § 23-4-16(a) (2005) (Repl. Vol. 2010) provides, in pertinent part:
(a) The power and jurisdiction of the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, over each case is continuing
and the commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, may,
in accordance with the provisions of this section and after due
notice to the employer, make modifications or changes with
respect to former findings or orders that are justified. Upon and
after the second day of February, one thousand nine hundred
ninety-five, the period in which a claimant may request a
modification, change or reopening of a prior award that was
entered either prior to or after that date shall be determined by
the following subdivisions of this subsection. Any request that
is made beyond that period shall be refused.
(1) Except as provided in section twenty-two of this
article, in any claim which was closed without the entry of an
order regarding the degree, if any, of permanent disability that
a claimant has suffered, or in any case in which no award has
been made, any request must be made within five years of the
closure. During that time period, only two requests may be
(continued...)
4
Mr. Hammons then appealed to the Office of Judges [“OOJ”], which reversed
the Claims Administrator’s determination by order entered September 27, 2011. In so ruling,
the OOJ disagreed with the Claims Administrator’s description of Mr. Hammons’ letter as
a request for reopening. According to the OOJ,
it is not a reopening situation subject to the above-cited statute
[W. Va. Code §§ 23-4-16(a)(1-2)]. Even if § 23-4-16 were to
apply, the claim was not closed for temporary total disability for
the back until March 8, 2010[,] and the time does not begin to
run until the date of the closure order relevant herein. The
request for permanent partial disability under § 23-4-16 was
made within five years from the date the claim was closed for
temporary total disability, albeit for the low back only. The
proviso regarding five years from the initial award is not
applicable because an “initial award” has not been paid for the
components added by the West Virginia Supreme Court, with an
award of temporary total disability benefits. . . . The claimant in
the matter at hand attempted to add components well within five
years from the 4% award of permanent partial disability benefits
6
(...continued)
filed.
(2) Except as stated below, in any claim in which an
award of permanent disability was made, any request must be
made within five years of the date of the initial award. During
that time period, only two requests may be filed. With regard to
those occupational diseases, including occupational
pneumoconiosis, which are medically recognized as progressive
in nature, if any such request is granted by the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, a new five-year period
begins upon the date of the subsequent award. With the advice
of the health care advisory panel, the executive director and the
board of managers shall by rule designate those progressive
diseases which are customarily the subject of claims.
5
on June 6, 2005. Obviously, Mr. Hammons could not have
sought a permanent partial disability evaluation for the back
condition before it was an added component and the Supreme
Court found impairment from the back condition in granting him
a new period of temporary disability.
Mr. Hammons’ employer appealed to the Board of Review, which reversed the OOJ’s ruling
and reinstated the Claims Administrator’s initial determination by order entered November
28, 2012. From this adverse ruling, Mr. Hammons appeals to this Court.
B. Case Number 13-0312: Clara L. Stinnett
The petitioner in Case Number 13-0312, Clara L. Stinnett [“Ms. Stinnett”],
sustained a work-related injury to her wrist in the course of and as a result of her employment
with the respondent herein, the West Virginia Department of Corrections, on August 31,
1998. Ms. Stinnett received a 22% permanent partial disability [“PPD”] award for her wrist
by Claims Administrator order entered January 21, 2000. Thereafter, Ms. Stinnett
experienced back and hip pain that her doctor determined also were attributable to her work-
related injury, and these diagnoses, for lumbar sprain/strain, was ruled compensable by order
entered January 14, 2005. Ms. Stinnett’s doctor then recommended posterior lumbar
interbody fusion surgery for her back and sought workers’ compensation approval therefor.
Despite repeated denials to authorize this surgery by the various workers’ compensation
tribunals, this Court, by order entered July 22, 2009, ultimately determined that Ms. Stinnett’s
surgical request should have been approved. By order entered August 7, 2009, the third­
6
party administrator authorized Ms. Stinnett’s request for lumbar interbody fusion/sextant
decompression. Ms. Stinnett had this surgery on June 22, 2010.
Ms. Stinnett claims that her back injury could not be evaluated for PPD
benefits until she reached her maximum degree of medical improvement, which occurred
once she had and subsequently recovered from her back surgery. See W. Va. Code § 23-4­
7a(c) (“When the authorized treating physician concludes that the claimant has either reached
his or her maximum degree of improvement or is ready for disability evaluation, . . . the
authorized treating physician may recommend a permanent partial disability award for
residual impairment relating to and resulting from the compensable injury[.]”). Although
W. Va. Code § 23-4-7a(f) required the Commission to refer Ms. Stinnett for a PPD
evaluation, it failed to do so. See also W. Va. Code § 23-4-22. Therefore, on July 5, 2011,
Ms. Stinnett requested consideration of PPD benefits related to her compensable back injury,
which request the Claims Administrator denied by order entered July 28, 2011, as an
untimely request to reopen her original claim governed by W. Va. Code § 23-4-16(a)(2).7
Ms. Stinnett then appealed this adverse ruling to the OOJ, which also denied her PPD
evaluation request on September 11, 2012. Such denials then were affirmed by Board of
Review order entered February 25, 2013. From these adverse rulings, Ms. Stinnett appeals
to this Court.
7
See supra note 6 for the pertinent language of W. Va. Code § 23-4-16(a)(2).
7
II.
STANDARD OF REVIEW
In both Mr. Hammons’ and Ms. Stinnett’s appeal to this Court, the pivotal
question concerns whether their requests for a PPD evaluation were timely pursuant to
W. Va. Code § 23-4-16(a)(2). The standard of review applicable to this Court’s
consideration of workers’ compensation appeals from the Board of Review is set forth in
W. Va. Code §§ 23-5-15(b-d) (2005) (Repl. Vol. 2010):
(b) In reviewing a decision of the board of review, the
supreme court of appeals shall consider the record provided by
the board and give deference to the board’s findings, reasoning
and conclusions[.]
(c) If the decision of the board represents an affirmation
of a prior ruling by both the commission and the office of judges
that was entered on the same issue in the same claim, the
decision of the board may be reversed or modified by the
supreme court of appeals only if the decision is in clear violation
of constitutional or statutory provision, is clearly the result of
erroneous conclusions of law, or is based upon the board’s
material misstatement or mischaracterization of particular
components of the evidentiary record. The court may not
conduct a de novo re-weighing of the evidentiary record. If the
court reverses or modifies a decision of the board pursuant to
this subsection, it shall state with specificity the basis for the
reversal or modification and the manner in which the decision
of the board clearly violated constitutional or statutory
provisions, resulted from erroneous conclusions of law, or was
based upon the board’s material misstatement or
mischaracterization of particular components of the evidentiary
record.
(d) If the decision of the board effectively represents a
reversal of a prior ruling of either the commission or the office
8
of judges that was entered on the same issue in the same claim,
the decision of the board may be reversed or modified by the
supreme court of appeals only if the decision is in clear violation
of constitutional or statutory provisions, is clearly the result of
erroneous conclusions of law, or is so clearly wrong based upon
the evidentiary record that even when all inferences are resolved
in favor of the board’s findings, reasoning and conclusions,
there is insufficient support to sustain the decision. The court
may not conduct a de novo re-weighing of the evidentiary
record. If the court reverses or modifies a decision of the board
pursuant to this subsection, it shall state with specificity the
basis for the reversal or modification and the manner in which
the decision of the board clearly violated constitutional or
statutory provisions, resulted from erroneous conclusions of law,
or was so clearly wrong based upon the evidentiary record that
even when all inferences are resolved in favor of the board’s
findings, reasoning and conclusions, there is insufficient support
to sustain the decision.
In recognition of this standard, we have held:
“When it appears from the proof upon which the
Workmen’s Compensation [Board of Review] acted that its
finding was plainly wrong an order reflecting that finding will
be reversed and set aside by this Court.” Syllabus point 5,
Bragg v. State Workmen’s Compensation Commissioner, 152
W. Va. 706, 166 S.E.2d 162 (1969).
Syl. pt. 1, Bowers v. West Virginia Office of the Ins. Comm’r, 224 W. Va. 398, 686 S.E.2d
49 (2009). See also Syl. pt. 4, Emmel v. State Comp. Dir., 150 W. Va. 277, 145 S.E.2d 29(1965) (“An order of the workmen’s compensation appeal board, approving an order of the
state compensation commissioner, will be reversed by this Court on appeal, where the legal
conclusions of the appeal board are erroneous.”).
9
Finally, insofar as the cases sub judice require us to determine the applicability
of the temporal requirements of W. Va. Code § 23-4-16(a)(2) to the claimants’ claims herein,
we also are guided by our standard of review of statutory provisions: “Interpreting a statute
or an administrative rule or regulation presents a purely legal question subject to de novo
review.” Syl. pt. 1, Appalachian Power Co. v. State Tax Dep’t of West Virginia, 195 W. Va.
573, 466 S.E.2d 424 (1995). Accord Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va.
138, 459 S.E.2d 415 (1995) (“Where the issue on an appeal from the circuit court is clearly
a question of law or involving an interpretation of a statute, we apply a de novo standard of
review.”).
Mindful of these standards, we proceed to consider the parties’ arguments.
III.
DISCUSSION
The cases presented for our resolution herein concern the statutory time periods
within which a workers’ compensation reopening request must be filed pursuant to W. Va.
Code § 23-4-16(a)(2). Each of these claimants timely requested the addition of a diagnosis
for a compensable injury but were required to avail themself of the appeal rights provided
by the workers’ compensation system in order to receive approval for their respective
requests. See generally W. Va. Code §§ 23-5-1(b)(1); 23-4-1c(a)(3); 23-5-3; 23-5-10; 23-5­
10
15(a). During, or shortly after, the extensive litigation required to exercise their appeal
rights, which ultimately culminated in favorable rulings by this Court, the statutory time
period for reopening expired in each claimant’s case. See W. Va. Code § 23-4-16(a)(2).
After receiving approval of their requests from this Court, each claimant thereafter sought
a PPD evaluation referral because the Commission had failed to make such a referral as
required by statute. See W. Va. Code § 23-4-7a(f). Each of the claimant’s PPD referral
requests was treated as an untimely request for reopening because it had not been filed within
the time limits established by W. Va. Code § 23-4-16(a)(2). Upon appeal to this Court, we
are asked to determine whether the claimants are entitled to the PPD evaluation referrals they
have requested.
We previously have recognized that “‘[t]he right to workmen’s compensation
benefits is wholly statutory.’ Syllabus point 2, in part, Dunlap v. State Compensation
Director, 149 W. Va. 266, 140 S.E.2d 448 (1965).” Syl. pt. 9, Simpson v. West Virginia
Office Ins. Comm’r, 223 W. Va. 495, 678 S.E.2d 1 (2009). Accord Bowman v. Workmen’s
Comp. Comm’r, 150 W. Va. 592, 597, 148 S.E.2d 708, 711 (1966) (“Rights and
responsibilities of the claimants in workmen’s compensation cases, and the duties,
responsibilities and powers of the commissioner . . . in such cases, are all creatures of
statute.”). Given the statutory nature of the benefits afforded to injured workers by the
workers’ compensation system, our decision of the issue before us will require us to consider
11
the various statutes that govern the claimants’ requests. “The primary object in construing
a statute is to ascertain and give effect to the intent of the Legislature.” Syl. pt. 1, Smith v.
State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975). To ascertain the
Legislature’s intent, “[w]e look first to the statute’s language. If the text, given its plain
meaning, answers the interpretive question, the language must prevail and further inquiry is
foreclosed.” Appalachian Power Co. v. State Tax Dep’t of West Virginia, 195 W. Va. at 587,
466 S.E.2d at 438. In other words, “[w]here the language of a statute is clear and without
ambiguity the plain meaning is to be accepted without resorting to the rules of
interpretation.” Syl. pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968). Where,
however, the statutory language is not certain, the statute is ambiguous and must be construed
to ascertain its legislative intent: “A statute that is ambiguous must be construed before it can
be applied.” Syl. pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992).
With specific respect to workers’ compensation statutes, we have held that
[i]nterpretations as to the meaning and application of
workers’ compensation statutes rendered by the Workers’
Compensation Commissioner, as the governmental official
charged with the administration and enforcement of the
workers’ compensation statutory law of this State, pursuant to
W. Va. Code § 23-1-1 (1997) (Repl. Vol. 1998), should be
accorded deference if such interpretations are consistent with
the legislation’s plain meaning and ordinary construction.
Syl. pt. 4, State ex rel. ACF Indus. v. Vieweg, 204 W. Va. 525, 514 S.E.2d 176 (1999)
(emphasis added). Similarly,
12
[i]t is the duty of a court to construe a statute according
to its true intent, and give to it such construction as will uphold
the law and further justice. It is as well the duty of a court to
disregard a construction, though apparently warranted by the
literal sense of the words in a statute, when such construction
would lead to injustice and absurdity.
Syl. pt. 2, Click v. Click, 98 W. Va. 419, 127 S.E. 194 (1925). Accord Syl. pt. 2, Newhart v.
Pennybacker, 120 W. Va. 774, 200 S.E. 350 (1938) (“Where a particular construction of a
statute would result in an absurdity, some other reasonable construction, which will not
produce such absurdity, will be made.”). Finally, “[i]t is always presumed that the legislature
will not enact a meaningless or useless statute.” Syllabus point 4, State ex rel Hardesty v.
Aracoma–Chief Logan No. 4523, Veterans of Foreign Wars of the United States, Inc., 147
W. Va. 645, 129 S.E.2d 921 (1963).
Having reiterated the rules of statutory construction guiding our analysis, we
now turn to a determination of the issue before us. Integral to our deliberation are three
distinct rights afforded to injured workers by the governing statutes: (1) an injured worker’s
right to the payment of benefits for workplace injuries; (2) an injured worker’s right to appeal
adverse decisions; and (3) an injured worker’s right to be referred for a PPD evaluation when
the circumstances of his/her injury support such a referral. We find the confluence of these
statutes supports the PPD evaluation referrals that Mr. Hammons and Ms. Stinnett have
requested. Finding that Mr. Hammons and Ms. Stinnett are entitled to request such referrals
irrespective of the reopening time periods provided by W. Va. Code § 23-4-16(a)(2) is
13
consistent with the enforcement of the claimants’ rights to receive benefits for their work-
related injuries; to appeal adverse workers’ compensation rulings; and to be referred for a
PPD evaluation, which referrals are supported by the compensability ruling and medical
treatment approval the claimants were seeking when the subject reopening periods expired.
A. Injured Worker’s Right to the Payment of Benefits for Workplace Injuries
Pursuant to W. Va. Code § 23-4-1(a) (2008) (Repl. Vol. 2010), “[s]ubject to
the provisions and limitations elsewhere in this chapter, workers’ compensation benefits shall
be paid the Workers’ Compensation Fund, to the employees of employers subject to this
chapter who have received personal injuries in the course of an resulting from their covered
employment[.]” (Emphasis added). Accord Syl. pt. 1, Barnett v. State Workmen’s Comp.
Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970) (“In order for a claim to be held
compensable under the Workmen’s Compensation Act, three elements must coexist: (1) a
personal injury (2) received in the course of employment And (3) resulting from that
employment.”). Encompassed within this scope of workers’ compensation coverage is the
right of employees to avail themselves of all of the provisions thereof: “[A]ll employees
covered by the West Virginia Workers’ Compensation Act are subject to every provision of
the workers’ compensation chapter and are entitled to all benefits and privileges under the
Workers’ Compensation Act[.]” Syl. pt. 3, in part, Bell v. Vecellio & Grogan, Inc., 197
W. Va. 138, 475 S.E.2d 138 (1996).
14
Commensurate with an injured employee’s right to receive benefits for his/her
workplace injuries is the corresponding right recognized by the Legislature to provide
medical treatment and compensation to such workers in a timely manner. With respect to
medical treatment, “[t]he Legislature hereby finds and declares that injured claimants should
receive the type of treatment needed as promptly as possible[.]” W. Va. Code § 23-4-7a(a).
See also W. Va. Code § 23-4-1c(a) (2009) (Repl. Vol. 2010) (requiring determination of
“whether the claimant has sustained a compensable injury” and entry of “an order giving all
parties immediate notice of the decision”). As to the payment of benefits, “[t]he Legislature
hereby finds and declares that two of the primary objectives of the workers’ compensation
system established by this chapter are to provide benefits to an injured claimant promptly and
to effectuate his or her return to work at the earliest possible time[.]” W. Va. Code § 23-4­
7(a) (2005) (Repl. Vol. 2010). See also W. Va. Code § 23-4-1d(e) (2005) (Repl. Vol. 2010)
(“An award for permanent partial disability shall be made as expeditiously as possible and
in accordance with the time frame requirements promulgated by the board of managers.”).
In this regard,
[t]he [West Virginia Workers’ Compensation] Act is designed
to compensate injured workers as speedily and expeditiously as
possible in order that injured workers and those who depend
upon them for support shall not be left destitute during a period
of disability. The benefits of this system accrue both to the
employer, who is relieved from common-law tort liability for
negligently inflicted injuries, and to the employee, who is
assured prompt payment of benefits.
15
....
This philosophy finds substance in our statutes
establishing the West Virginia state workers’ compensation
system. For example, W. Va. Code § 23-5-3a (1981
Replacement Vol.)[8] provides that it is the policy of our law
that:
The rights of claimants for [workers’] compensation be
determined as speedily and expeditiously as possible to the end
that those incapacitated by injuries and the dependents of
deceased [workers] may receive benefits as quickly as possible
in view of the severe economic hardships which immediately
befall the families of injured or deceased [workers].
Moreover, W. Va. Code § 23-4-7 (1981 Replacement Vol.)
specifically declares that a “primary objective of the [workers’]
compensation system established by this chapter [is] to provide
benefits to an injured claimant promptly.”
Accordingly, we have consistently held in the past that
one of the primary objectives of the Legislature in establishing
the workers’ compensation system is to provide prompt and fair
compensation to injured workers, and that “[l]ong delays in
processing claims for [workers’] compensation is not consistent
with the declared policy of the Legislature to determine the
rights of claimants as speedily and expeditiously as possible.”
8
While the Legislature removed W. Va. Code § 23-5-3a during its 1995
revisions to the workers’ compensation statutes, virtually identical language is set forth in
W. Va. Code § 23-5-13 (1995) (Repl. Vol. 2010), which provides, in pertinent part:
It is the policy of this chapter that the rights of claimants
for workers’ compensation be determined as speedily and
expeditiously as possible to the end that those incapacitated by
injuries and the dependents of deceased workers may receive
benefits as quickly as possible in view of the severe economic
hardships which immediately befall the families of injured or
deceased workers.
16
Syllabus Point 1, Workman v. State Workmen’s Compensation
Comm’r, W. Va., 236 S.E.2d 236 (1977). See also Mitchell v.
State Workmen’s Compensation Comm’r, W. Va., 256 S.E.2d 1(1979). State ex rel. Conley v. Pennybacker, 131 W. Va. 442,
48 S.E.2d 9 (1948); Poccardi v. Ott, 82 W. Va. 497, 96 S.E. 790(1918).
It cannot be disputed that the petitioners, all workers
injured in the course of and resulting from employment, have a
constitutional right to the benefit of the statutes establishing our
system of workers’ compensation. As we stated in Cooper v.
Gwinn, W. Va., 298 S.E.2d 781, 786 (1981):
By terms of our organic law the people are entitled to the
benefit of law enacted by their legislative representatives. . . .
Meadows v. Lewis, 172 W. Va. 457, 469-70, 307 S.E.2d 625, 638-39 (1983) (footnote
added).
Therefore, it is apparent that “[o]ne of the primary objects of the Legislature
in establishing the Workmen’s Compensation system is to provide prompt and fair
compensation to persons entitled to the protection which the law affords in that respect and
courts look with disfavor upon delay in the accomplishment of that legislative purpose.”
State ex rel. Conley v. Pennybacker, 131 W. Va. 442, 448, 48 S.E.2d 9, 13 (1948). As such,
“[l]ong delay in processing claims for [workers’] compensation is not consistent with the
declared policy of the Legislature to determine the rights of claimants as speedily and
expeditiously as possible. W. Va. Code, 23-5-3a.” Syl. pt. 1, Workman v. State Workmen’s
Comp. Comm’r, 160 W. Va. 656, 236 S.E.2d 236 (1977).
17
Not only do injured workers have the aforementioned rights to receive medical
treatment and benefits for work-related injuries and to receive such compensation
expediently in the first instance, but claimants also may seek to reopen their claims to permit
them to receive further medical treatment or benefits attributable to additional symptoms they
experience from their initial work-related injury. See generally W. Va. Code § 23-5-3 (2009)
(Repl. Vol. 2010) (discussing progression or aggravation of claimant’s condition, or other
facts not previously considered in relation thereto, necessary to support claimant’s reopening
request). Where the claimant has received an award of PPD benefits, he/she must file a
reopening request within five years of the initial claim’s closure:
Except as stated below, in any claim in which an award
of permanent disability was made, any request must be made
within five years of the date of the initial award. During that
time period, only two requests may be filed. With regard to
those occupational diseases, including occupational
pneumoconiosis, which are medically recognized as progressive
in nature, if any such request is granted by the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, a new five-year period
begins upon the date of the subsequent award. With the advice
of the health care advisory panel, the executive director and the
board of managers shall by rule designate those progressive
diseases which are customarily the subject of claims.
W. Va. Code § 23-4-16(a)(2). “The time limitations contained in Code, 23-4-16, as
amended, are applicable only to the reopening of a claim for workmen’s compensation
benefits previously closed by a final order of the director.” Syl. pt. 1, Craft v. State Comp.
Dir., 149 W. Va. 28, 138 S.E.2d 422 (1964) (emphasis added). See also Syl. pt. 2, Pugh v.
18
Workers’ Comp. Comm’r, 188 W. Va. 414, 424 S.E.2d 759 (1992) (“W. Va. Code, 23-4-6
[1983], in part, permits the power and jurisdiction of the Workers’ Compensation
Commissioner to continue over cases before the Commissioner and to make modifications
or changes with respect to former findings or orders as may be justified, provided that no
further award may be made in the cases of nonfatal injuries more than two times within five
years after the Commissioner shall have made the last payment in the original award or any
subsequent increase thereto in any permanent disability case.” (emphasis added)).
Thus, it is apparent that both Mr. Hammons and Ms. Stinnett had the right to
receive workers’ compensation benefits to which they are entitled as expediently as possible
and to request that their claims be reopened to add further diagnoses and/or medical
treatment necessitated by their initial work-related injuries.
B. An Injured Worker’s Right to Appeal Adverse Decisions
When a claimant receives an unfavorable ruling, the workers’ compensation
statutes allow him/her to appeal that decision through the workers’ compensation system and
ultimately to this Court. W. Va. Code § 23-5-1(b)(1) (2009) (Repl. Vol. 2010) recognizes
the right to protest an adverse ruling of the Claims Administrator. The pertinent statutory
language provides:
Except with regard to interlocutory matters, upon making
any decision, upon making or refusing to make any award or
19
upon making any modification or change with respect to former
findings or orders, as provided by section sixteen, article four of
this chapter, the Insurance Commissioner, private carrier or
self-insured employer, whichever is applicable, shall give notice,
in writing, to the parties to the claim of its action. The notice
shall state the time allowed for filing a protest to the finding.
W. Va. Code § 23-5-1(b)(1). Accord Syl., Miles v. State Comp. Comm’r, 136 W. Va. 183,
67 S.E.2d 34 (1951) (“A claimant of compensation benefits for occupational disease, or his
employer, under the provisions of Chapter 136, Acts of the Legislature, 1949, is entitled to
make a timely protest to an adverse finding by the State Compensation Commissioner and
an opportunity to introduce evidence and otherwise be heard, before such commissioner
makes a final order.”). See also State ex rel. Garnes v. Hanley, 150 W. Va. 468, 471, 147
S.E.2d 284, 286 (1966) (“[A] decision of the commissioner may be attacked directly. Code,
23-5-1, et seq., as amended.”). Likewise, a claimant may appeal from a decision denying
compensability. See W. Va. Code § 23-4-1c(a)(3) (2009) (Repl. Vol. 2010) (“In any claim
for benefits under this chapter, the Insurance Commissioner, private carrier or self-insured
employer, whichever is applicable, shall determine whether the claimant has sustained a
compensable injury within the meaning of section one of this article and enter an order giving
all parties immediate notice of the decision. . . . Any party may object to the order of the
Insurance Commissioner, private carrier or self-insured employer, whichever is applicable,
and obtain an evidentiary hearing as provided in section one, article five of this chapter[.]”).
The Legislature further has granted claimants the right (1) to request the
20
reopening of their claims when they experience “a progression or aggravation in the
claimant’s condition” or can demonstrate “some other fact or facts which were not previously
considered in [the Commissioner’s] former findings and which would entitle the claimant to
greater benefits than the claimant has already received” and (2) to object to a decision
denying a reopening request. W. Va. Code § 23-5-3. Accord Syl. pt. 1, Bostic v. State Comp.
Comm’r, 142 W. Va. 484, 96 S.E.2d 481 (1957) (“Where an injured employee makes
application in writing for further adjustment of his claim, within the time provided in Code,
23-4-16, as amended, and the application discloses facts not theretofore considered by the
commissioner, and which if true, would entitle claimant to further benefits, the claimant is
entitled to have his claim reopened, and to have a determination of the matters alleged in the
application.”); Syl. pt. 2, Blevins v. State Comp. Comm’r, 127 W. Va. 481, 33 S.E.2d 408(1945) (same); Syl. pt. 2, Reed v. Comp. Comm’r, 124 W. Va. 37, 18 S.E.2d 793 (1942)
(“After an order of the Workmen’s Compensation Commissioner determining a claimant’s
disability has become final, the case cannot be reopened except by the showing of ‘a
progression or aggravation in the claimant’s condition, or some other fact or facts which
were not theretofore considered by the commissioner in his former findings, and which
would entitle such claimant to greater benefits than he has already received, ***.’ Acts of
Legislature 1939, Chapter 137, Article 5, Section 1-b.”). See Syl., in part, Harper v. State
Workmen’s Comp. Comm’r, 160 W. Va. 364, 234 S.E.2d 779 (1977) (“For purposes of
obtaining a reopening of a Workmen’s Compensation claim . . . , the claimant must show a
21
prima facie cause, which means nothing more than any evidence which would tend to justify,
but not to compel the inference that there has been a progression or aggravation of the former
injury.”). See also Syl., in part, Justice v. State Comp. Dir., 149 W. Va. 216, 140 S.E.2d 424(1965) (“When a claimant makes timely application in writing . . . for further adjustment of
his claim and upon such application establishes a fact or facts not previously considered by
the Director in his former findings which would entitle claimant to greater benefits than he
was already received, the claim should be reopened, and this Court will reverse an order of
the Workmen’s Compensation Appeal Board affirming an order of the Director which denies
a reopening of the claim.”); Syl., in part, Johnson v. State Comp. Comm’r, 128 W. Va. 37,
35 S.E.2d 677 (1945) (“Where a claimant in a workman’s compensation case makes timely
application in writing under Code, 23-5-1, as amended and reenacted by Chapter 137, Acts,
West Virginia Legislature, 1939, Article 5, Sections 1(a) and 1(b), for further adjustment of
his claim, and upon such application claimant establishes a progression or aggravation in his
condition, or a fact or facts not theretofore considered by the commissioner in his former
findings, and which would entitle claimant to greater benefits than he has already received,
this Court will reverse an order of the appeal board affirming the order of the commissioner
which denies a reopening of the case.”).
Should a claimant appealing from an adverse decision of the Claims
Administrator to the Office of Judges still fail to obtain a favorable resolution of his/her
22
claim, he/she may then appeal the adverse ruling to the Board of Review. W. Va. Code § 23­
5-10 (2005) (Repl. Vol. 2010) expressly recognizes that “[t]he employer, claimant, workers’
compensation commission, the successor to the commission, other private insurance carriers
and self-insured employers, whichever is applicable, may appeal to the appeal board created
in section eleven of this article for a review of a decision by an administrative law judge.”
Finally, from an unfavorable ruling of the Board of Review, an aggrieved
claimant may appeal to this Court as provided by the pertinent language of W. Va. Code
§ 23-5-15(a):
Review of any final decision of the board, including any
order of remand, may be prosecuted by either party or by the
workers’ compensation commission, the successor to the
commission, other private insurance carriers and self-insured
employers, whichever is applicable, to the supreme court of
appeals within thirty days from the date of the final order by
filing a petition therefor with the court against the board and the
adverse party or parties as respondents[.]
Accord Syl. pt. 2, Glenn v. State Comp. Comm’r, 118 W. Va. 203, 189 S.E. 705 (1937) (“An
order of the compensation appeal board, from which an appeal may be had to this court, is
one entered upon a final decision of the case by the appeal board.”).
From these statutes granting claimants appeal rights, it is clear that
one of the essential purposes of the Workmen’s Compensation
23
Act as conceived by the Legislature . . . is to provide a simple
and expeditious method of resolving the question of disputed
claims arising from injuries occurring in the workplace. E.g.,
State ex rel. Conley v. Pennybacker, 131 W. Va. 442, 48 S.E.2d
9 (1948); Poccardi v. Ott, 82 W. Va. 497, 96 S.E. 790 (1918).
Mitchell v. State Workmen’s Comp. Comm’r, 163 W. Va. 107, 117, 256 S.E.2d 1, 9 (1979).
Thus, it is apparent that both Mr. Hammons and Ms. Stinnett were exercising their
legislatively-granted appeal rights when they were pursuing favorable determinations of their
compensability and medical treatment requests which relief provides the foundation for the
PPD evaluations they seek in the cases sub judice.
C. An Injured Worker’s Right to be Referred for a PPD Evaluation
Once a claimant’s treatment for his/her work-related injury permits him/her to
return to work and/or the claimant has reached his/her maximum degree of medical
improvement, the claimant is entitled to be referred for a PPD evaluation to determine the
permanent disability caused by his/her work-related injury and the resulting benefits therefor.
See W. Va. Code § 23-4-7a(c) (indicating referral for PPD evaluation is appropriate when
“the claimant has either reached his or her maximum degree of improvement or is ready for
disability evaluation, or when the claimant has returned to work”). In recognition of this
right, the Legislature has expressly charged the Commission with the responsibility of
facilitating such a referral when a claimant has a lengthy period of temporary total disability:
Notwithstanding the anticipated period of disability
established pursuant to the provisions of subsection (b) of this
24
section, whenever in any claim temporary total disability
continues longer than one hundred twenty days from the date of
injury (or from the date of the last preceding examination and
evaluation pursuant to the provisions of this subsection or
pursuant to the directions of the commission under other
provisions of this chapter), the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, shall refer the claimant to a physician
or physicians of the commission’s selection for examination and
evaluation in accordance with the provisions of subsection (d)
of this section and the provisions of subsection (e) of this
section are fully applicable: Provided, That the requirement of
mandatory examinations and evaluations pursuant to the
provisions of this subsection shall not apply to any claimant who
sustained a brain stem or spinal cord injury with resultant
paralysis or an injury which resulted in an amputation
necessitating a prosthetic appliance.
W. Va. Code § 23-4-7a(f) (emphasis added). The Commission’s statutory duty to refer a
claimant for a PPD evaluation once the requirements of W. Va. Code § 23-4-7a(f) have been
satisfied is mandatory as indicated by the Legislature’s use of the word “shall” to define this
duty:
“It is well established that the word ‘shall,’ in the absence
of language in the statute showing a contrary intent on the part
of the Legislature, should be afforded a mandatory connotation.”
Syllabus Point 1, Nelson v. West Virginia Public Employees
Insurance Board, 171 W. Va. 445, 300 S.E.2d 86 (1982).
Syl. pt. 1, E.H. v. Matin, 201 W. Va. 463, 498 S.E.2d 35 (1997). Nevertheless, while both
Mr. Hammons and Ms. Stinnett have received TTD benefits in excess of the referenced 120­
day benchmark, neither claimant has received a PPD evaluation referral from the
Commission.
25
We previously have held that,
[i]n workers’ compensation cases, upon the consideration
of our statutes, particularly W. Va. Code §§ 23-4-1, 6, and 8
(1931), all as amended, it is reasonable to conclude that after
compensability has been determined, the Workers’
Compensation Commissioner must take the initiative in further
processing the claim. The next step is to evaluate the disability
and inform the claimant of his award, if any.
Syl. pt. 1, Hardy v. Richardson, 198 W. Va. 11, 479 S.E.2d 310 (1996) (emphasis added).
By equal measure, though,
[i]t is not incumbent upon a claimant, whose claim has
been held compensable, to initiate the procedure for the
evaluation of his disability; rather, it is the obligation of the
commissioner to then take such action as is necessary, including
referral for medical treatment, if needed, to arrive at the
disability award, if any, to which the claimant is entitled.
Syl. pt. 2, Baker v. State Workmen’s Comp. Comm’r, 164 W. Va. 389, 263 S.E.2d 883 (1980)
(emphasis added).
Despite the clear and express duty of the Commission to facilitate an injured
claimant’s referral for a PPD evaluation, the Legislature additionally has stated that failure
to effectuate such a referral does not leave the claimant’s claim open indefinitely until a PPD
referral is made. However, the Commission is required to inform claimants of their right to
receive a PPD evaluation.
Notwithstanding any provision in this chapter to the
contrary, any claim which was closed for the receipt of
temporary total disability benefits or which was closed on a
26
no-lost-time basis and which was more than five years prior to
the effective date of this section shall not be considered to still
be open or the subject for an evaluation of the claimant for
permanent disability merely because an evaluation has not
previously been conducted and a decision on permanent
disability has not been made: Provided, That if a request for an
evaluation was made in a claim prior to the twenty-ninth day of
March, one thousand nine hundred ninety-three, the commission
shall have the evaluation performed. In every instance, a claim
shall be a case in which no award has been made for the
purposes of section sixteen of this article. In every claim closed
after the effective date of this section, the commission shall give
notice to the parties of the claimant’s right to a permanent
disability evaluation.
W. Va. Code § 23-4-22. We have interpreted this section to mean that “West Virginia Code
§ 23-4-22 (1993) is applicable only to cases described in the section for which an order
closing the case has been made by the Workers’ Compensation Commissioner.” Syl. pt. 2,
Hardy v. Richardson, 198 W. Va. 11, 479 S.E.2d 310 (1996). We further have recognized
that “West Virginia Code § 23-4-22 (1993) is effective only after ninety days had passed
from its enactment to preclude the Workers’ Compensation Commissioner from conducting
a permanent disability evaluation with respect to any case closed for receipt of temporary
total disability within five years of any order of closure.” Syl. pt. 3, Hardy, 198 W. Va. 11,
479 S.E.2d 310.
From these authorities, it is apparent that both Mr. Hammons and Ms. Stinnett
had a legislatively-created right to be receive a PPD evaluation referral and that such a
referral was required to be initiated by the Commission.
27
D. Confluence of Injured Worker’s Statutory Rights
Upon a review of the preceding authorities, it is clear that Mr. Hammons and
Ms. Stinnett, as injured workers, enjoy numerous rights that have been granted to them by
the workers’ compensation system: to receive medical treatment and compensation for their
compensable workplace injuries, to appeal adverse workers’ compensation decisions, and to
be referred for a PPD evaluation to ascertain the permanent debilitating effects of their
workplace injuries. Nevertheless, the Board of Review’s denial of their requests for PPD
evaluation referrals deprives Mr. Hammons and Ms. Stinnett of their right to receive such
evaluations. This result is patently inconsistent with the workers’ compensation statutes
affording them the aforementioned rights and our caselaw interpreting the same.
We previously have held that
[a] workmen’s compensation claim must be considered
in its entirety and cannot be regarded as divisible in the sense of
being barred by the provisions of Code, 1931, 23-4-16, as
amended, in relation to a disability of one character, or a
disability affecting one part of the claimant’s body, but, at the
same time, alive and litigable in relation to another disability
arising from the same injury but of a different character or one
affecting a different part of the claimant’s body.
Syl., Bowman v. Workmen’s Comp. Comm’r, 150 W. Va. 592, 148 S.E.2d 708 (1966).
Accord Partlow v. Workmen’s Comp. Comm’r, 150 W. Va. 416, 421-22, 146 S.E.2d 833, 836
(1966). The Claims Administrator’s initial and, ultimately, the Board of Review’s ultimate
application of W. Va. Code § 23-4-16(a)(2) to deny as untimely the claimants’ requests for
28
PPD evaluation referrals herein–which referrals the Commission was statutorily required to
make in the first instance–produces the very incongruous result that this Court has rejected
as impermissible.
In order to have requested their PPD evaluations within the time contemplated
by the Board of Review pursuant to W. Va. Code § 23-4-16(a)(2), Mr. Hammons would have
had to request a PPD referral for his back injury before, or immediately after, it was held to
be a compensable component of his initial work-related injury. Likewise, Ms. Stinnett could
have timely requested a PPD referral for her back injury only if she had done so before her
request for medical treatment therefor had been approved, which surgery was necessary for
her to achieve her maximum degree of medical improvement requisite for a PPD evaluation.
We have held that “[t]he law does not require a suitor to do a futile thing.” Syl. pt. 2,
Brawley v. County Court of Kanawha Cnty., 117 W. Va. 697, 188 S.E. 139 (1936). We can
fathom no factual circumstance in which a claimant’s request for a PPD evaluation–which,
we reiterate, the Commission, and not the claimant, was statutorily required to facilitate–
would have been more futile than those presented by the cases sub judice. We also cannot
condone rulings by the Board of Review that produce such absurd results by awarding TTD
and medical benefits as to one part of a compensable injury while simultaneously refusing
as untimely a permanent disability rating for the same part of the same compensable injury
when the delay was occasioned not by the claimants’ fault but by the workers’ compensation
29
system’s refusal to afford the requested benefits in the first instance and its failure to
facilitate the supported PPD evaluations in the final instance.
Insofar as statutes cannot be read in isolation but rather must be considered as
a part of the entire statutory scheme of which they form a part, we cannot conceive that this
unjust and inconsistent result comports with the Legislature’s stated intent to fully
compensate workers injured during the course of and as a result of their employment.
“‘Statutes which relate to the same subject matter should be read and applied together so that
the Legislature’s intention can be gathered from the whole of the enactments.’ Syllabus
Point 3, Smith v. State Workmen’s Compensation Comm’r, 159 W. Va. 108, 219 S.E.2d 361(1975).” Syl. pt. 3, Boley v. Miller, 187 W. Va. 242, 418 S.E.2d 352 (1992). Accord Syl. pt.
2, Beckley v. Kirk, 193 W. Va. 258, 455 S.E.2d 817 (1995) (“‘“Statutes in pari materia, must
be construed together and the legislative intention, as gathered from the whole of the
enactments, must be given effect.” Point 3., Syllabus, State ex rel. Graney v. Sims, 144
W. Va. 72 [105 S.E.2d 886 (1958) ]. Syl. pt. 1, State ex rel. Slatton v. Boles, 147 W. Va.
674, 130 S.E.2d 192 (1963).’ Syl. pt. 1, Transamerica Com. Fin. v. Blueville Bank of
Grafton, 190 W. Va. 474, 438 S.E.2d 817 (1993).”). Moreover, we are constrained to
construe statutes consistently with one another and not in such a manner so as to produce an
absurd or inconsistent result:
It is the duty of a court to construe a statute according to
its true intent, and give to it such construction as will uphold the
30
law and further justice. It is as well the duty of a court to
disregard a construction, though apparently warranted by the
literal sense of the words in a statute, when such construction
would lead to injustice and absurdity.
Syl. pt. 2, Click v. Click, 98 W. Va. 419, 127 S.E. 194. Accord Syl. pt. 2, Newhart v.
Pennybacker, 120 W. Va. 774, 200 S.E. 350 (“Where a particular construction of a statute
would result in an absurdity, some other reasonable construction, which will not produce
such absurdity, will be made.”). See also Syl. pt. 4, State ex rel. ACF Indus. v. Vieweg, 204
W. Va. 525, 514 S.E.2d 176 (holding that “[i]nterpretations as to the meaning and application
of workers’ compensation statutes rendered by the Workers’ Compensation Commissioner,
as the governmental official charged with the administration and enforcement of the workers’
compensation statutory law of this State, pursuant to W. Va. Code § 23-1-1 (1997) (Repl.
Vol. 1998), should be accorded deference if such interpretations are consistent with the
legislation’s plain meaning and ordinary construction” (emphasis added)). Applying these
rules of statutory construction to the cases sub judice, we conclude that the construction
afforded to W. Va. Code § 23-4-16(a)(2) by the Commission to deny the PPD evaluation
referrals requested by the claimants herein is inconsistent with, and directly contrary to, the
claimants’ rights to receive such evaluations and the benefits commensurate therewith.
Therefore, we reverse the Board of Review’s orders rejecting the claimants’ PPD evaluation
referral requests as untimely and find, instead, that the claimants were permitted to request
such referrals to determine whether they have sustained any permanent disability as a result
of their additional work-related back injuries at issue herein. In short, this result is necessary
31
to achieve the stated legislative purposes of providing compensation for employees’ work-
related injuries and affording them the opportunity to receive a permanent disability
evaluation therefor. See W. Va. Code § 23-4-1(a) (“Subject to the provisions and limitations
elsewhere in this chapter, workers’ compensation benefits shall be paid the Workers’
Compensation Fund, to the employees of employers subject to this chapter who have received
personal injuries in the course of an resulting from their covered employment[.]” (emphasis
added)); W. Va. Code § 23-4-7a (f) (requiring commission, or other named party, to refer
claimant who has been temporarily and totally disabled for more than 120 days for a
permanent disability evaluation).
In both Mr. Hammons’ and Ms. Stinnett’s case, their compensability and
medical treatment rulings were denied by the Claims Administrator; such denials were
upheld by the Board of Review; and this Court reversed the adverse rulings to grant the
claimants the benefits they had initially requested as part of their original, compensable,
work-related injuries. During the pendency of their litigation, or shortly thereafter, the time
period for reopening provided by W. Va. Code § 23-4-16(a)(2) expired. However, without
this Court’s rulings finding Mr. Hammons’ back injury to be compensable and authorizing
Ms. Stinnett’s request for medical treatment for her back injury, neither claimant would have
had the medical evidence necessary to support their instant requests for PPD evaluations.
Despite the claimants’ clear entitlement to receive the PPD evaluation referrals they have
32
requested herein, the effect of the Commission’s denial thereof produces an absurd and
inconsistent result. In essence, the Claims Administrator’s ruling recognizes Mr. Hammons’
additional back injury as compensable, but denies him any compensation, i.e., PPD benefits,
therefor. Likewise, the Claims Administrator recognizes Ms. Stinnett’s additional back
injury also is compensable, but denies her any compensation, i.e., PPD benefits, therefor. We
simply cannot countenance such an absurd or inconsistent construction of the governing
workers’ compensation statutes that would rule an injury compensable on the one hand, but
then would deny an award of benefits therefor with the other hand.
Accordingly, we hold that when a workers’ compensation claimant (1) receives
an award of permanent partial disability (PPD) for an initial workplace injury; (2) timely files
a reopening request pursuant to W. Va. Code § 23-4-16(a)(2) (2005) (Repl. Vol. 2010)
seeking to add an additional, related injury to his/her claim; (3) such additional injury is ruled
compensable; and (4) the Commission, or other named party, fails to refer the claimant for
a PPD evaluation in accordance with W. Va. Code § 23-4-7a(f) (2005) (Repl. Vol. 2010), the
claimant may request a PPD evaluation referral even if the time period for reopening the
initial claim, contemplated by W. Va. Code § 23-4-16(a)(2), has expired. To hold otherwise
would effectively deny the claimant his/her statutory right to receive a permanent disability
evaluation of his/her additional injury as provided by W. Va. Code § 23-4-7a (2005) (Repl.
Vol. 2010) and deprive the claimant of his/her statutory right to receive benefits for his/her
33
workplace injury pursuant to W. Va. Code § 23-4-7(a) (2005) (Repl. Vol. 2010). We note
that this holding is consistent with the recognition that “the statutory provisions authorizing
reopening of workmen’s compensation claims for further adjustment should be liberally
construed.” Bowman v. Workmen’s Comp. Comm’r, 150 W. Va. 592, 595, 148 S.E.2d 708,
711 (1966) (citations omitted). Accord Sheena H. for Russell H. v. Amfire, LLC, ___ W. Va.
___, ___, ___ S.E.2d ___, ___, slip op. at 4 (No. 13-0875 Apr. 10, 2015) (Loughry, J.,
concurring) (“This Court has long recognized that ‘“[t]he Workmen’s Compensation law is
remedial in its nature, and must be given a liberal construction to accomplish the purpose
intended.” Syl. pt. 3, McVey v. Chesapeake & Potomac Telephone Co., 103 W. Va. 519, 138
S.E. 97 (1927) (citation omitted).’ Syl. Pt. 1, Plummer v. Workers’ Comp. Div., 209 W. Va.
710, 551 S.E.2d 46 (2001).”). See also Martino v. Workers’ Comp. Appeals Bd., 103
Cal. App. 4th 485, 489, 126 Cal. Rptr. 2d 812, 815 (2002) (“Limitations provisions in the
workmen’s compensation law must be liberally construed in favor of the employee unless
otherwise compelled by the language of the statute, and such enactments should not be
interpreted in a manner which will result in a loss of compensation.” (internal quotations and
citations omitted)).
We also find this result to be in keeping with our recent holding in Syllabus
point 5 of Sheena H. for Russell H. v. Amfire, LLC, ___ W. Va. ___, ___ S.E.2d ___ (No. 13­
0875 Apr. 10, 2015), wherein we determined that the applicable filing period for workers’
34
compensation dependent’s death benefits should be tolled as a result of the medical
examiner’s delayed completion of the decedent’s autopsy report when such report provided
the only medical evidence indicating that the decedent’s death had been caused by his work-
related injury.9 As with the cases sub judice, it was aptly noted in the concurrence to Sheena
H. that, “[u]ntil that autopsy report was issued, the decedent’s family had no documentation
or other evidence indicating that the decedent’s work-related injury directly caused, or at
least was a material factor, in his death.” ___ W. Va. at ___, ___ S.E.2d at ___, slip op. at
3 (Loughry, J., concurring) (footnote omitted). Coincidentally, neither of the claimants
herein had documentation to support their requests for PPD evaluations of their low back
injuries until this Court reversed prior Board of Review orders which provided them the
medical evidence necessary to permit them to request PPD evaluations herein. Additionally,
today’s holding is consistent with this Court’s prior decision upon similar facts in Baker v.
9
The full text of Syllabus point 5 of Sheena H. for Russell H. v. Amfire, LLC,
___ W. Va. ___, ___ S.E.2d ___ (No. 13-0875 Apr. 10, 2015) holds:
Where a claimant to dependent’s death benefits under the
Workers’ Compensation Act delays filing a claim because the
claimant was unaware, and could not have learned through
reasonable diligence, that the decedent’s cause of death was
work-related, and the delay was due to the medical examiner
completing the making available an autopsy report, the six-
month time limitation on filing a claim in West Virginia Code
§ 23-4-15(a) [2010] is tolled until the claimant, through
reasonable diligence, could have learned of the autopsy report
finding that the decedent’s death was, in any material degree,
contributed to by an injury or disease that arose in the course of
and resulting from the decedent’s employment.
35
State Workmen’s Compensation Commissioner, 164 W. Va. 389, 263 S.E.2d 883 (1980),
wherein this Court excused the claimant’s untimely request for a PPD evaluation where the
Commissioner’s order ruled only that the claim was compensable but did not close the claim.
However, we would be remiss if we did not also acknowledge that several of
our prior decisions have not resolved similar cases in the same manner. Distinguishable from
the instant case is this Court’s prior opinion in Pugh v. Workers’ Compensation
Commissioner, 188 W. Va. 414, 424 S.E.2d 759. In Pugh, we found a claimant’s reopening
request for PPD benefits to be untimely where the claimant previously had received a PPD
award for the same compensable injury and sought additional PPD benefits therefor. By
contrast, the claimants in the instant proceeding have not sought an increase in the PPD
awards they received for their initial work-related injuries to their leg and wrist, but rather
request PPD evaluations for their additional back injury diagnoses. See also Littleton v. West
Virginia Office of Ins. Comm’r, No. 11-0540, 2013 WL 598492 (W. Va. Feb. 14, 2013)
(unpublished mem. dec.) (claimant filed untimely application for permanent total disability
[“PTD”] benefits based upon same injuries for which he previously had received PPD
awards); Kuhns v. West Virginia Office of Ins. Comm’r, No. 11-0026, 2012 WL 3104191(W. Va. July 26, 2012) (unpublished mem. dec.) (claimant filed reopening request seeking
additional PPD benefits for a psychiatric disorder for which he previously had received a
PPD award); Fisher v. West Virginia Office of Ins. Comm’r, No. 11-0031, 2012 WL 300066536
(W. Va. July 6, 2012) (unpublished mem. dec.) (claimant sought reopening to seek additional
PPD benefits for progression of initial work-related injury for which she previously had
received a PPD award); Puher v. West Virginia Office of Ins. Comm’r, No. 101483, 2012 WL
3206530 (W. Va. Mar. 26, 2012) (unpublished mem. dec.) (claimant filed untimely
application for PTD benefits based upon same injuries for which she previously had received
a PPD award); Speights v. West Virginia Office of Ins. Comm’r, No. 101173, 2011 WL
8185559 (W. Va. Nov. 10, 2011) (unpublished mem. dec.) (claimant filed untimely
application for PTD benefits based upon same injuries for which he previously had received
a PPD award). Cf. Taylor v. State Workmen’s Comp. Comm’r, 152 W. Va. 609, 165 S.E.2d
613 (1969) (refusing claimants reopening request seeking TTD benefits).
Finally, a review of this Court’s unpublished memorandum decisions issued
in workers’ compensation appeals indicates that we have reached a contrary result in cases
presenting fact patterns similar to the cases sub judice wherein a claimant (1) has received
a PPD award for one work-related injury; (2) has been permitted to add an additional
compensable diagnosis to his/her initial work-related injury claim; but (3) subsequently has
been denied a PPD evaluation for the additional diagnosis because the filing deadline of
W. Va. Code § 23-4-16 expired during litigation regarding the compensability or medical
treatment for the additional diagnosis. See, e.g., Lewis v. West Virginia Office Ins. Comm’n,
Nos. 11-1689 & 11-1722, 2012 WL 5834630 (W. Va. Nov. 16, 2012) (unpublished mem.
37
dec.); Lovas v. West Virginia Office of Ins. Comm’r, No. 11-0288, 2012 WL 4054100(W. Va. Sept. 14, 2012) (unpublished mem. dec.); Buzzard v. West Virginia Office of Ins.
Comm’r, No. 101433, 2012 WL 3195758 (W. Va. Mar. 29, 2012) (unpublished mem. dec.);
Stover v. West Virginia Office of Ins. Comm’r, No. 11-0097, 2011 WL 8199963 (W. Va. Dec.
7, 2011) (unpublished mem. dec.); Fox v. West Virginia Office of Ins. Comm’r, No. 100806
(W. Va. July 21, 2011) (unpublished mem. dec.). Given the abbreviated factual and legal
discussion set forth in this Court’s memorandum decisions, we cannot say that such prior
decisions have fully considered and analyzed the applicable statutory and jurisprudential law
as thoroughly and thoughtfully as does our extensive discussion of the issue herein. “[A]
precedent-creating opinion that contains no extensive analysis of an important issue is more
vulnerable to being overruled than an opinion which demonstrates that the court was aware
of conflicting decisions and gave at least some persuasive discussion as to why the old law
must be changed.” State v. Guthrie, 194 W. Va. 657, 679 n.28, 461 S.E.2d 163, 185 n.28
(1995). Thus, “[a]lthough this Court is loathe to overturn a decision so recently rendered,
it is preferable to do so where a prior decision was not a correct statement of law.” Murphy
v. Eastern American Energy Corp., 224 W. Va. 95, 101, 680 S.E.2d 110, 116 (2009). See
also Farley v. Sartin, 195 W. Va. 671, 678, 466 S.E.2d 522, 529 (1995) (“[S]tare decisis
does not require static doctrines but instead permits law to evolve and to adjust to changing
conditions and notions of justice as well as to varied sets of facts[.]”). Based upon our
foregoing analysis, we conclude that the detailed statutory analysis of the governing workers’
38
compensation statutes to find that the claimants’ requests for PPD evaluations should have
been allowed despite the operation of the statutory reopening time period set forth in W. Va.
Code § 23-4-16(a)(2) more faithfully fulfills the stated legislative purpose to ensure injured
workers are fully compensated for their injuries than our cursory discussions in recent
memorandum decisions that have “elevate[d] form over substance.” Sheena H., ___ W. Va.
at ___, ___ S.E.2d at ___, slip op. at 4 (Loughry, J., concurring). Therefore, we expressly
overrule those prior opinions of this Court ruling untimely a claimant’s request for a PPD
evaluation where the claimant (1) has received a PPD award for one work-related injury; (2)
has been permitted to add an additional compensable diagnosis to his/her initial work-related
injury claim; but (3) subsequently has been denied a PPD evaluation for the additional
diagnosis because the filing deadline of W. Va. Code § 23-4-16(a)(2) expired before the
claimant could request such an evaluation when the Commission, or other named party,
failed to refer the claimant therefor. See, e.g., Lewis v. West Virginia Office Ins. Comm’n,
Nos. 11-1689 & 11-1722, 2012 WL 5834630 (W. Va. Nov. 16, 2012) (unpublished mem.
dec.); Lovas v. West Virginia Office of Ins. Comm’r, No. 11-0288, 2012 WL 4054100(W. Va. Sept. 14, 2012) (unpublished mem. dec.); Buzzard v. West Virginia Office of Ins.
Comm’r, No. 101433, 2012 WL 3195758 (W. Va. Mar. 29, 2012) (unpublished mem. dec.);
Stover v. West Virginia Office of Ins. Comm’r, No. 11-0097, 2011 WL 8199963 (W. Va. Dec.
7, 2011) (unpublished mem. dec.); Fox v. West Virginia Office of Ins. Comm’r, No. 100806
(W. Va. July 21, 2011) (unpublished mem. dec.).
39
Applying the holding announced herein to the facts of the cases sub judice, we
conclude that both Mr. Hammons and Ms. Stinnett should have received the PPD evaluation
referrals they requested herein because they both timely requested to reopen their initial
work-related injury claims to add an additional diagnosis; their additional diagnoses were
ruled compensable; and the Commission failed make the permanent disability evaluation
referrals in the first instance. To rule otherwise would deprive the claimants of the benefits
to which they are entitled as compensation for their workplace injuries.
IV.
CONCLUSION
For the foregoing reasons, the decision rendered November 28, 2012, by the
Workers’ Compensation Board of Review in Mr. Hammons’ claim, Case Number 12-1473,
is hereby reversed, and this case is remanded to allow Mr. Hammons’ request for a PPD
evaluation of his compensable back injury. Likewise, the decision rendered February 25,
2013, by the Workers’ Compensation Board of Review in Ms. Stinnett’s claim, Case Number
40
13-0312, also is reversed, and this case also is remanded with directions to allow Ms.
Stinnett’s request for a PPD evaluation of her compensable back injury.
Case Number 12-1473 - Reversed and Remanded.
Case Number 13-0312 - Reversed and Remanded.
41