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No. 33043 Patricia E. Fitzgerald v. Earl L. Fitzgerald
Benjamin, Justice, concurring:
In enacting the Workers' Compensation Code, at W.Va. Code § 23-1-1, et seq,
the West Virginia Legislature set forth a comprehensive system of proof and recovery for
work-related injuries and diseases outside the traditional common law system. Because of
its statutory basis and the strong policy and political issues present within the system, this
Court's duty must be to give effect to the express intentions of the Legislature, so long as
legally permissible. As a Court, we must respect our fellow branch of government and resist
the temptation to legislate policy changes from the bench.
Here, the majority opinion properly applies the Legislature's intention of what
permanent total disability benefits are in its consideration of whether such benefits are
marital or separate property. I disagree with my dissenting colleagues and decline their
invitation to judicially remold permanent total disability benefits into something the
Legislature does not now intend them to be. To do otherwise would not only contravene our
necessary duty of restraint herein, but also plunge this Court into the speculative endeavor
of determining on appellate review which portion of such benefits represents wage
replacement and which portion does not.
No consideration of the nature of permanent total disability benefits can ignore
the deliberate and very specific statutory changes made by the Legislature in the last decade
regarding such benefits. It is here where the arguments advanced by the dissenting opinion
fail. As correctly stated in the majority opinion, it is the Legislature which has caused
permanent total disability benefits to be considered wage replacement. See, in part, W.Va.
Code §§ 23-4-23(b) (2003), 23-4-24 (2005) and 23-4-25(b) (2005). Thus, such benefits cease
at the time when retirement is presumed to occur and when retirement-type benefits normally
begin. See, W.Va. Code § 23-4-6(d) (2005). It is not our role to second-guess the Legislature
in this regard.
While I understand many of the concerns of my dissenting colleagues with
respect to the pain and suffering component of work-related injuries, I note that the
provisions of the workers compensation code distinguish between permanent total and
permanent partial disability benefits. While the Legislature has acted definitively to
categorize permanent total benefits as wage replacement benefits, I am not convinced that
such an argument applies for permanent partial benefits. Though permanent partial benefits
are derived by a calculation involving wage considerations, such benefits are often paid to
injured workers after they have already returned to work and are otherwise earning their
normal wages or salary. Indeed, such benefits are often referred to by claimants as
settlements. Though that term is not technically correct from a legal standpoint, it does
describe how such permanent partial benefits are viewed from a lay standpoint.
Because of their nature, and because of the preference under the law of this
State for classification of marital property, the majority opinion properly holds that workers'
compensation permanent total benefits which are marital property are properly subject to
equitable distribution pursuant to W.Va. Code § 48-7-101, et seq. See, also, Staton v. Staton,
218 W.Va. 201, 624 S.E.2d 548 (2005). In so doing, the majority opinion properly gives
effect to the intent of the Legislature. Accordingly, I concur with the majority opinion.