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No. 31534 - State of West Virginia ex rel. William R. Beirne v. Robert J. Smith, Commissioner, West Virginia Bureau of Employment Programs

No. 31537- State of West Virginia ex rel. Delano Bradley v. Robert J. Smith, Commissioner, West Virginia Bureau of Employment Programs

Maynard, Justice, concurring:

        I concur wholeheartedly to the findings and the results in these cases. That is, I agree that the Legislature did not violate the Equal Protection Clause of the West Virginia Constitution when it provided that PTD benefits shall be payable until the claimant attains the age necessary to receive federal old age retirement benefits under the Social Security Act. I write separately, however, because I do not agree with many of the sentiments expressed in this opinion.

        Unlike the majority, I do not consider the legislation at issue to be “draconian.” Slip Op. at 13. I also do not believe that the result of the Legislature's decision to cut off benefits at age 65 “will be to further impoverish some of our poorest citizens[.]” Slip Op. at 7. My belief, which may not hold true in every case, is that the source of the money paid to retirees simply will change from the Workers' Compensation fund to the Social Security system and other retirement funds, just like it does for most working people when they retire. In other words, when a person retires, he or she goes off the employer's payroll and begins to receive Social Security and/or other retirement plans.

        Further, the provision at issue is not unique. Several states cease payment of PTD benefits at a certain age or when the claimant becomes eligible for Social Security retirement benefits including Kentucky, Tennessee, Minnesota, Montana, and North Dakota. Several other states, including Alaska, Colorado, Connecticut, Florida, Kansas, Louisiana, Ohio, Oregon, Pennsylvania, South Dakota, and Washington,   (See footnote 1)  make PTD benefits subject to Social Security benefit offsets.

        The majority asserts that the question whether the Legislature has chosen a fair or effective method of improving the solvency of the fund by limiting benefits to elderly claimants is not a question this Court attempts to answer. The majority then proceeds to answer this question with some criticism of the legislation. I do not join in this criticism. While I am not sure there is any fair way to improve the solvency of the fund, I believe the Legislature has chosen an effective, but perhaps unfortunate, method of attempting to do so.

        In contrast to the majority, I have no desire to be critical of the Legislature for making the tough choices necessary to help repair a badly broken system. Frankly, there is no easy answer to our workers' compensation problem. No doubt, many other changes will have to be made in our compensation system in the future to make it solvent, and none of them likely will be easy or pleasant. I wish as much as the majority does that no injured worker would suffer any benefit reduction of any kind. Also, unlike the majority, my vote to find the subject legislation constitutionally permissible was not cast begrudgingly. If a statute is constitutional, it is our constitutional duty to uphold it. While one may dislike some statutes, and we all have some we dislike, we have no choice but to comply with them.

        For these reasons, I concur in the ultimate result reached by the majority.

Footnote: 1    See 10 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law, Appendix B, Table 7 (November 2003).