JUSTICE BENJAMIN concurs and reserves the right to file a concurring opinion.
This case comes before the Court upon questions certified by the Circuit Court of Putnam County inquiring whether a spouse's workers' compensation permanent total disability benefits constitute marital property or separate property for purposes of equitable distribution, and, based upon the classification of such benefits, how they should then be distributed to the parties. Upon a review of the parties' arguments, the record of the proceedings below, and the pertinent authorities, we answer the certified questions and remand this matter for further proceedings consistent with this opinion.
Equitable distribution under W. Va. Code, 48-2-1, et
seq., (See footnote 5) is a three-step process. The first step is to classify the
parties' property as marital or nonmarital. The second step is
to value the marital assets. The third step is to divide the
marital estate between the parties in accordance with the
principles contained in W. Va. Code, 48-2-32. (See footnote 6)
Syl. pt. 1, Whiting v. Whiting, 183 W. Va. 451, 396 S.E.2d 413 (1990) (footnotes added).
Marital property is defined by statute as including
(1) All property and earnings acquired by either spouse
during a marriage, including every valuable right and interest,
corporeal or incorporeal, tangible or intangible, real or
personal, regardless of the form of ownership, whether legal or
beneficial, whether individually held, held in trust by a third
party, or whether held by the parties to the marriage in some
form of co-ownership such as joint tenancy or tenancy in
common, joint tenancy with the right of survivorship, or any
other form of shared ownership recognized in other
jurisdictions in this state, except that marital property does not
include separate property as defined in section 1-23 [§ 48-1-
(2) The amount of any increase in value in the separate property of either of the parties to a marriage, which increase results from: (A) an expenditure of funds which are marital property, including an expenditure of such funds which reduces indebtedness against separate property, extinguishes liens, or otherwise increases the net value of separate property; or (B) work performed by either or both of the parties during the marriage.
The definition of marital property contained in this section has no application outside of the provisions of this article, and the common law as to the ownership of the respective property and earnings of a husband and wife, as altered by the provisions of article 29 [§§ 48-29-101 et seq.] of this chapter and other provisions of this code, are not abrogated by implication or otherwise, except as expressly provided for by the provisions of this article as such provisions are applied in actions brought under this article or for the enforcement of rights under this article.
W. Va. Code § 48-1-233 (2001) (Repl. Vol. 2004). For purposes of equitable distribution, nonmarital or separate property consists of
(1) Property acquired by a person before marriage;
(2) Property acquired by a person during marriage in exchange for separate property which was acquired before the marriage;
(3) Property acquired by a person during marriage, but excluded from treatment as marital property by a valid agreement of the parties entered into before or during the marriage;
(4) Property acquired by a party during marriage by gift, bequest, devise, descent or distribution;
(5) Property acquired by a party during a marriage but after the separation of the parties and before ordering an annulment, divorce or separate maintenance; or
(6) Any increase in the value of separate property as defined in subdivision (1), (2), (3), (4) or (5) of this section which is due to inflation or to a change in market value resulting from conditions outside the control of the parties.
W. Va. Code § 48-1-237 (2001) (Repl. Vol. 2004).
Despite these delineations between marital and separate property, there nevertheless exists a preference to classify property as marital rather than separate.
W. Va. Code, 48-2-1(e)(1) (1986) [W. Va. Code § 48-1-233 (2001) (Repl. Vol. 2004)], defining all property acquired during the marriage as marital property except for certain limited categories of property which are considered separate or nonmarital, expresses a marked preference for characterizing the property of the parties to a divorce action as marital property. Syl. pt. 3, Whiting v. Whiting, 183 W. Va. 451, 396 S.E.2d 413 (1990).
Syl. pt. 2, Staton v. Staton, 218 W. Va. 201, 624 S.E.2d 548 (2005). After property has been denominated marital, it typically is divided equally between the parties. Except as otherwise provided in this section, upon every judgment of . . . divorce . . ., the court shall divide the marital property of the parties equally between the parties. W. Va. Code § 48-7- 101 (2001) (Repl. Vol. 2004). See also W. Va. Code § 48-7-103 (2001) (Repl. Vol. 2004) (setting forth considerations to rebut presumption that marital property should be divided equally between the parties). (See footnote 7)
The primary issue presented for our resolution in this case is whether workers' compensation permanent total disability benefits are marital property or separate property. In order to ascertain the nature of these benefits, we must first determine why such benefits are paid to an injured worker. Pursuant to W. Va. Code § 23-4-7(a) (2005) (Repl. Vol. 2005), the primary objectives of the workers' compensation system . . . are to provide benefits to an injured claimant promptly and to effectuate his or her return to work at the earliest possible time . . . . With specific respect to the injury sustained by Mr. Fitzgerald, permanent total disability benefits are intended to compensate an injured worker who has been determined to be unable to return to his/her employment as a result of his/her work- related injury: [p]ermanent total disability awarded under workers' compensation is part of a comprehensive plan designed to rectify the results of an injury in the workplace. State ex rel. Boan v. Richardson, 198 W. Va. 545, 548, 482 S.E.2d 162, 165 (1996). Moreover, [t]he amount of permanent total disability benefits is determined under a statutory scheme that involves diverse factors, including the nature of the injury, the average wages of the claimant over a relatively short time, and the average wages earned in the State. Id., 198 W. Va. at 549, 482 S.E.2d at 166 (citation omitted).
However, [w]orkers' compensation has never been intended to make the employee whole_it excludes benefits for pain and suffering, for loss of consortium, and it provides a cap on wage benefits. Bias v. Eastern Assoc. Coal Corp., ___ W. Va. ___, ___, ___ S.E.2d ___, ___, slip op. at 8 (No. 32778 June 8, 2006) (Davis, C.J., concurring) (internal quotations and citation omitted). In other words, [t]he payments to the claimants and other benefits are in lieu of such elements of damage in the common law tort system as lost wages, lost earning capacity, reimbursement of past and future medical expenses, past and present pain and suffering, emotional distress, and other factors. Boan, 198 W. Va. at 548, 482 S.E.2d at 165. Accord Zelenka v. City of Weirton, 208 W. Va. 243, 247- 48, 539 S.E.2d 750, 754-55 (2000) (recognizing the failure of workers' compensation law to provide compensation for 'elements of damages such as pain and suffering . . .' (quoting O'Dell v. Town of Gauley Bridge, 188 W. Va. 596, 610, 425 S.E.2d 551, 565 (1992))); Brooks v. City of Weirton, 202 W. Va. 246, 252, 503 S.E.2d 814, 820 (1998) (same); Henry v. Benyo, 203 W. Va. 172, 179-80, 506 S.E.2d 615, 622-23 (1998) (stating that losses that are not covered by workers' compensation include pain and suffering, loss of enjoyment of life, [and] loss of consortium). See also Roberts v. Stevens Clinic Hosp., Inc., 176 W. Va. 492, 511 n.13, 345 S.E.2d 791, 810 n.13 (1986) (distinguishing workers' compensation benefits from awards for pain and suffering and concluding that, [u]nlike workers' compensation, awards for pain and suffering in personal injury actions . . . should not be based upon pre-determined schedules).
Our prior cases recognizing that an award of permanent total disability benefits constitutes wage replacement and does not include monies for the injured employee's pain and suffering are consistent with the statutory scheme for the determination of the amount of such benefits to which an injured worker is entitled. With respect to an award of permanent total disability benefits, such as those at issue in this case, W. Va. Code § 23-4-6(d) (2005) (Repl. Vol. 2005) directs, in pertinent part, that
[f]or all awards of permanent total disability benefits
that are made on or after the second day of February, one
thousand nine hundred ninety-five, including those claims in
which a request for an award was pending before the division
or which were in litigation but not yet submitted for a decision,
then benefits shall be payable until the claimant attains the age
necessary to receive federal old age retirement benefits under
the provisions of the Social Security Act, 42 U.S.C. §§ 401 and
402, in effect on the effective date of this section. The claimant
shall be paid benefits so as not to exceed a maximum benefit of
sixty-six and two-thirds percent of the claimant's average
weekly wage earnings, wherever earned, at the time of the date
of injury not to exceed one hundred percent of the average
weekly wage in West Virginia. The minimum weekly benefits
paid under this section shall be as is provided for in subdivision
(b) of this section. . . . (See footnote 8) (Footnote added). Thus, it is apparent that the calculation of the amount of permanent total
disability benefits to which an injured worker is entitled is calculated based upon his/her
wages, and the corresponding average West Virginia weekly wage, and not upon other
factors. In describing this method of calculation, the Legislature does not mention the
injured employee's pain and suffering attributable to his/her workplace injury or award a
specific amount or percentage of benefits as compensation therefor. See id. See also W. Va. Code § 23-4-14 (2005) (Repl. Vol. 2005) (defining average weekly wage earnings
of injured employee and average weekly wage in West Virginia).
The Legislature's intention to treat an award of permanent total disability benefits as wage replacement, and not as an award for pain and suffering, is further evidenced by additional statutory language which reduces such benefits if the injured employee later receives other payments in lieu of wages such as employer-sponsored disability benefits. See W. Va. Code § 23-4-23(b) (2003) (Repl. Vol. 2005). An injured employee may, under certain circumstances, also be precluded from receiving any award of permanent total disability benefits if he/she is also receiving old-age social security benefits. See W. Va. Code § 23-4-24 (2005) (Repl. Vol. 2005). Finally, an employee's receipt of actual wages may also diminish the amount of permanent total disability benefits that he/she may collect. See W. Va. Code § 23-4-25(b) (2005) (Repl. Vol. 2005).
Given the thoroughness with which the Legislature has defined, provided directions for calculating, and limited an injured employee's right to receive an award of permanent total disability benefits, it is apparent that its silence as to the amount of such an award that represents the injured employee's pain and suffering is demonstrative of a legislative intent to exclude such a component from an award of workers' compensation permanent total disability benefits. See State ex rel. Roy Allen S. v. Stone, 196 W. Va. 624, 630 n.11, 474 S.E.2d 554, 560 n.11 (1996) ('Inclusio unius est exclusio alterius,' the expression that 'one is the exclusion of the others,' has force in this case. This doctrine informs courts to exclude from operation those items not included in the list of elements that are given effect expressly by statutory language.). Accordingly, we hold that a workers' compensation permanent total disability award is considered to be wage replacement for the wages the injured employee would have earned but for his/her work- related injury and is not considered to be an award for the injured employee's pain and suffering resulting from such work-related injury. (See footnote 9)
We recognize that because, in most instances, workers' compensation benefits
constitute an employee's exclusive remedy against his/her employer, such an award can
arguably be said to include inherent characteristics of other types of damages. See State ex
rel. Boan v. Richardson, 198 W. Va. at 550-51, 482 S.E.2d at 167-68 (We conclude that
our workers' compensation benefits for permanent total disability are more than simply a
wage replacement system. While the amount of such payments is, in fact, based on the
injured worker's past employment, the benefits are also defined and limited by additional
factors such as the average wages in the State. The payments provided in permanent
disability cases compensate for more than lost wages because, as we have pointed out, they
stand in lieu of a myriad of damage elements recognized in the tort system that are not
measurable by wages earned or the average wages in the State.). Nevertheless, the
recurring theme in our prior opinions addressing this issue is, simply, that workers'
compensation law [fails] to provide compensation for 'elements of damages such as pain
and suffering . . . .' Zelenka v. City of Weirton, 208 W. Va. at 247-48, 539 S.E.2d at 754-
55 (quoting O'Dell v. Town of Gauley Bridge, 188 W. Va. at 610, 425 S.E.2d at 565).
Insofar as [t]he right to workmen's compensation benefits is purely statutory, Cropp v.
State Workmen's Compensation Commissioner, 160 W. Va. 621, 627-628, 236 S.E.2d 480,
484 (1977), and the Legislature has failed to specify what part of an injured employee's
workers' compensation award is intended to provide reimbursement for his/her claims other
than lost wages, we are constrained to conclude that the Legislature has intended workers'
compensation benefits to be limited to wage replacement. Accordingly, we conclude that
our isolated statement in Boan has been implicitly modified by our subsequent rulings on
this subject. See, e.g., Zelenka v. City of Weirton, 208 W. Va. at 247-48, 539 S.E.2d at 754-
55; Brooks v. City of Weirton, 202 W. Va. at 252, 503 S.E.2d at 820; Henry v. Benyo, 203
W. Va. at 179-80, 506 S.E.2d at 622-23.
Having determined that workers' compensation permanent total disability benefits constitute wage replacement, rather than an award for the injured employee's pain and suffering, we must now determine whether Mr. Fitzgerald's lump sum permanent total disability award constitutes marital or separate property.
During their consideration of this matter below, the family court and the circuit court both concluded that a portion of Mr. Fitzgerald's lump sum permanent total disability award was his separate property insofar as it compensated him for the pain and suffering he sustained as a result of his workplace injury. Because we have determined that such an award constitutes wage replacement and does not include a separate component for pain and suffering, the question remains as to whether Mr. Fitzgerald's lump sum award of permanent total disability benefits is marital property, subject to equitable distribution, or separate property, which is not subject to division between the parties. Two factors surrounding this lump sum award are critical to our decision of this matter: when Mr. Fitzgerald received the award in question and for what period of time such award was intended to serve as compensation for his lost wages.
Governing our resolution of this inquiry are the statutory definitions of separate property, contained in W. Va. Code § 48-1-237, and marital property, set forth in W. Va. Code § 48-1-233. We repeatedly have held that, when applying statutory law to the facts of a case, we must consider the intent of the Legislature in enacting such provision. 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). When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute. Syl. pt. 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959). However, such an application of a statute's plain language is necessarily tempered by the recognition that [i]t is always presumed that the legislature will not enact a meaningless or useless statute. Syl. pt. 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). Therefore, '[t]he plain meaning of a statute is normally controlling, except in the rare case in which literal application of a statute will produce a result demonstrably at odds with the intentions of the drafters. In such case, it is the legislative intent, rather than the strict
language, that controls.' West Virginia Human Rights Comm'n v. Garretson, 196 W. Va. 118, 128, 468 S.E.2d 733, 743 (1996). Keatley v. Mercer County Bd. of Educ., 200 W. Va. 487, 492 n.7, 490 S.E.2d 306, 311 n.7 (1997). Furthermore, where two statutes are in apparent conflict, the Court must, if reasonably possible, construe such statutes so as to give effect to each. Syl. pt. 4, in part, State ex rel. Graney v. Sims, 144 W. Va. 72, 105 S.E.2d 886 (1958).
In the specific context of the case sub judice, when considering whether property is marital or separate, we have further recognized a distinct legislative preference for characterizing property as marital in nature whenever such a denomination is warranted. See Syl. pt. 2, Staton v. Staton, 218 W. Va. 201, 624 S.E.2d 548 ('W. Va. Code, 48-2-1(e)(1) (1986) [W. Va. Code § 48-1-233 (2001) (Repl. Vol. 2004)], defining all property acquired during the marriage as marital property except for certain limited categories of property which are considered separate or nonmarital, expresses a marked preference for characterizing the property of the parties to a divorce action as marital property.' Syl. pt. 3, Whiting v. Whiting, 183 W. Va. 451, 396 S.E.2d 413 (1990).). Thus, we must consider whether Mr. Fitzgerald's lump sum award of permanent total disability benefits comes within the definition of separate property, marital property, or both separate and marital property, as well as the Legislature's preferred classification of property as marital in nature.
Initially, a reading of the statutory definitions of separate property and
marital property leads to the conclusion that Mr. Fitzgerald's lump sum award is separate
property because he received these monies after the parties had separated. (See footnote 10) This is so
because W. Va. Code § 48-1-237(5) includes within the definition of separate property
[p]roperty acquired by a party during a marriage but after the separation of the parties and
before ordering an annulment, divorce or separate maintenance. Conspicuously absent
from this definition of separate property, however, is any consideration as to the nature
of the property so acquired. Under the unique facts of this case, although Mr. Fitzgerald
received his lump sum award during the parties' separation, the award actually constituted
wage replacement for a period of time during which the parties were married but Mr.
Fitzgerald's work-related injury prevented him from working. Consequently, we must also
consider the proper characterization of wages, or wage replacement as is the case herein,
earned during the parties' marriage.
W. Va. Code § 48-1-233(1) defines marital property, in part, as encompassing [a]ll property and earnings acquired by either spouse during a marriage, including every valuable right and interest[.] Thus, by definition, both parties' wages earned during a marriage constitute marital property. See id. Accord Butcher v. Butcher, 178 W. Va. 33, 40, 357 S.E.2d 226, 233 (1987) (explaining that statutory definition of marital property contemplates that it is property or earnings accrued during the marriage which form the basis for marital property (emphasis added)). See also Syl. pt. 5, in part, Metzner v. Metzner, 191 W. Va. 378, 446 S.E.2d 165 (1994) (Contingent and other future earned fees which an attorney might receive as compensation for cases pending at the time of a divorce should be treated as marital property for purposes of equitable distribution. However, only that portion of the fee that represents compensation for work done during the marriage is actually 'marital property' as defined by our statute.). Additionally, any right or interest in or to property acquired during a marriage is also classified as marital property. W. Va. Code § 48-1-233(1). See also Syl. pt. 3, Waite v. Civil Serv. Comm'n, 161 W. Va. 154, 241 S.E.2d 164 (1977) (A 'property interest' includes not only the traditional notions of real and personal property, but also extends to those benefits to which an individual may be deemed to have a legitimate claim of entitlement under existing rules or understandings.).
As we previously have discussed, Mr. Fitzgerald received his lump sum permanent total disability award while the parties were separated. However, the injury which caused Mr. Fitzgerald to become permanently and totally disabled occurred while he and Mrs. Fitzgerald were married and cohabiting, and such injury prevented him from working also while the parties were still living together as husband and wife. Thus, the wages which Mr. Fitzgerald's lump sum permanent total disability award were intended to replace were wages he would have earned during the parties' marriage but for his work- related injury. Consequently, Mr. Fitzgerald's right to receive such an award, as well as his interest therein, accrued during the parties' marriage. The fact that he did not receive his award until substantially later does not alter when his right to receive such benefits actually vested, which vesting occurred during the parties' marriage. See Syl. pt. 3, in part, Meadows v. Lewis, 172 W. Va. 457, 307 S.E.2d 625 (1983) (recognizing notoriously [l]ong delays in processing claims for [workers'] compensation (internal quotations and citation omitted)). But see Meadows v. Lewis, 172 W. Va. at 468, 307 S.E.2d at 638 (The [Worker's 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.).
Insofar as we have determined an award of workers' compensation permanent total disability benefits to constitute wage replacement, rather than an individual award for pain and suffering, and given that the wages which Mr. Fitzgerald's award replaced would have been earned during the parties' marriage, we find that his lump sum permanent total disability award of $106,402.62 is marital property subject to equitable distribution. To find otherwise would be to ignore the statutorily prescribed preference for classifying property as marital and would, thus, produce a result demonstrably at odds with the intentions of the drafters. Keatley v. Mercer County Bd. of Educ., 200 W. Va. at 492, 490 S.E.2d at 311 (citation omitted). Accord Miller v. Miller, 216 W. Va. 720, 725-26, 613 S.E.2d 87, 92-93 (2005) (per curiam) (concluding that husband's contract fraud claim and resultant litigation interest constituted a valuable interest acquired during the parties' marriage and, thus, monies received in settlement of such claim constituted marital property even though such proceeds were received after the parties had separated). See also Van de Loo v. Van de Loo, 346 N.W.2d 173, 176 (Minn. Ct. App. 1984) (indicating that the purpose of the recovery rather than the timing of the recovery controls its characterization); Amato v. Amato, 180 N.J. Super. 210, 219, 434 A.2d 639, 643 (1981) (The purpose for which the property is received should control. (internal quotations and citation omitted)).
Accordingly, we hold, in a divorce proceeding, that portion of a lump sum workers' compensation permanent total disability award that represents wages the injured spouse would have earned, but for his/her work-related injury, while the parties were married and cohabiting constitutes marital property subject to equitable distribution pursuant to W. Va. Code § 48-7-101, et seq. (See footnote 11)
In a divorce proceeding, is an injured spouse's award of
workers' compensation permanent total disability benefits,
which corresponds to the spouse's inability to work while the
parties were married and cohabiting, considered to be (1) a
replacement for the wages he/she would have earned but for
his/her work-related injury and thus marital property, which
would be subject to the rules of equitable distribution, or (2) the
spouse's personal award for his/her pain and suffering resulting
from his/her work-related injury and thus his/her own separate
property, which would not be subject to the rules of equitable
Answer: In a divorce proceeding, an injured spouse's award of workers' compensation permanent total disability benefits, which corresponds to the spouse's inability to work while the parties were married and cohabiting, is considered to be a replacement for the wages he/she would have earned but for his/her work-related injury and is thus marital property subject to the rules of equitable distribution. Having answered the foregoing certified questions, as reformulated, we remand this matter to the Circuit Court of Putnam County for further proceedings consistent with this opinion.