Linda Nelson Garrett, P.L.L.C.
Summersville, West Virginia
Attorney for the Appellant,
Kristin P. Halkias
Charleston, West Virginia
Attorney for the Appellee,
West Virginia Insurance Commissioner,
in Mr. Bowers's Appeal
(Case Number 35036)
Gregory W. Sproles
Breckinridge, Davis, Sproles
& Chapman, PLLC
Summersville, West Virginia
Attorney for the Appellant,
Darrell W. Dotson
Daniel G. Murdock
Office of Insurance Commissioner
Gary M. Mazezka
Charleston, West Virginia
Attorneys for the Appellee,
West Virginia Insurance Commissioner,
in Mr. Dotson's Appeal
(Case Number 34672)
The instant matter consists of two appeals from the Workers' Compensation Board of Review (hereinafter the Board) that have been consolidated because they present the same issue for this Court's consideration and resolution. In both cases, the claimant suffered a work-related injury in the course of and as a result of his employment. Both claimants have continued to experience pain from their work-related injuries, neither claimant has been able to return to work or resume normal activities, and both claimants have developed depression that their treating physicians have attributed to their work- related injuries. Throughout the proceedings underlying the instant appeals, the claimants' requests to add a diagnosis of depression as a compensable component of their claims has been denied. On appeal to this Court, the claimants assert that the Insurance Commissioner of West Virginia (hereinafter the Commissioner) (See footnote 1) erred by refusing to add a depression diagnosis to their claims because they were not diagnosed with depression within 6 months of the[ir] injury or significant injury-related complication (See footnote 2) as required by W. Va. C.S.R. § 85-20-12.2.a (2005) to render such a diagnosis compensable. Upon a review of the parties' arguments, the record presented for appellate consideration, and the pertinent authorities, we reverse the decision of the Board in both cases. We further remand both cases with directions to add a diagnosis of depression to each of the claimant's underlying claims.
On June 1, 1999, Mr. Dotson's treating physician, Dr. Margaret S. Wantz (hereinafter Dr. Wantz), first recorded that Mr. Dotson is becoming more and more depressed due to pain and being unable to work. Thereafter, on June 4, 1999, Dr. Wantz prescribed medication to treat Mr. Dotson's symptoms of depression; the Workers' Compensation Commission (hereinafter the Commission) authorized this medication.
Dr. Wantz continued to observe and recount Mr. Dotson's symptoms of depression in her subsequent treatment notes. Nearly seven and one-half years after first observing Mr. Dotson's depression, Dr. Wantz, on February 1, 2006, requested that major depression be added as a compensable diagnosis to Mr. Dotson's workers' compensation claim resulting from his March 23, 1998, work-related back injury. The Office of Medical Management (the OMM) denied this request on February 13, 2006, citing W. Va. C.S.R. § 85-20-12.2.a, which requires a psychiatric diagnosis be made within six months of the work-related injury, or a significant complication thereof, upon which such psychiatric diagnosis is based to be held compensable. In turn, the Claims Administrator upheld the OMM's denial of a depression diagnosis by order entered February 15, 2006. Likewise, the Office of Judges (the OOJ), by decision dated July 25, 2006, and the Board, by order entered April 5, 2007, upheld these rulings. From these adverse decisions, Mr. Dotson appeals to this Court.
(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. In other words, [w]hen 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. Syl. pt. 5, Bragg v. State Workmen's Comp. Comm'r, 152 W. Va. 706, 166 S.E.2d 162 (1969). Mindful of this standard, we proceed to consider the parties' arguments.
It is fundamental law that the Legislature may delegate to an administrative agency the power to make rules and regulations to implement the statute under which the agency functions. In exercising that power, however, an administrative agency may not issue a regulation which is inconsistent with, or which alters or limits its statutory authority. Syllabus point 3, Rowe v. West Virginia Department of Corrections, 170 W. Va. 230, 292 S.E.2d 650 (1982).
Syl. pt. 6, Simpson v. West Virginia Office of the Ins. Comm'r, 223 W. Va. 495, 678 S.E.2d 1 (2009) (emphasis added). In other words,
[a]ny rules or regulations drafted by an agency must faithfully reflect the intention of the Legislature, as expressed in the controlling legislation. Where a statute contains clear and unambiguous language, an agency's rules or regulations must give that language the same clear and unambiguous force and effect that the language commands in the statute. Syllabus point 4, Maikotter v. University of West Virginia Board of Trustees/West Virginia University, 206 W. Va. 691, 527 S.E.2d 802 (1999). Syl. pt. 7, Simpson v. West Virginia Office of the Ins. Comm'r, 223 W. Va. 495, 678 S.E.2d 1. Accord Syl. pt. 15, Simpson, id. (''Rules and Regulations of . . . [an agency] must faithfully reflect the intention of the legislature; when there is clear and unambiguous language in a statute, that language must be given the same clear and unambiguous force and effect in the [agency's] Rules and Regulations that it has in the statute.' Syl. pt. 4, Ranger Fuel Corp. v. West Virginia Human Rights Commission, 180 W. Va. 260, 376 S.E.2d 154 (1988). Syl. pt. 2, in part, Chico Dairy Company v. Human Rights Commission, 181 W. Va. 238, 382 S.E.2d 75 (1989).' Syllabus point 5, Appalachian Power Co. v. State Tax Department of West Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995).). Thus,
[p]rocedures and rules properly promulgated by an administrative agency with authority to enforce a law will be upheld so long as they are reasonable and do not enlarge, amend or repeal substantive rights created by statute. Syllabus point 4, State ex rel. Callaghan v. West Virginia Civil Service Commission, 166 W. Va. 117, 273 S.E.2d 72 (1980).
Syl. pt. 11, Simpson, 223 W. Va. 495, 678 S.E.2d 1.
The regulatory language at issue herein, W. Va. C.S.R. § 85-20-12.2.a (2005) holds compensable [w]ork injury-related psychiatric disorders that satisfy the criteria enumerated therein:
Work injury-related psychiatric disorders means those psychiatric disorders caused by or aggravated by a work injury or disease. Attached as Exhibit A is a list of psychiatric diagnoses which are, by definition, not significantly contributed to by a work-related injury, unless the disorder ends in the phrase due to a general medical condition where the general medical condition is caused by the work-related injury. In order to be regarded as work-related, symptoms of an injury-related psychiatric diagnosis must be manifest within 6 months of the injury or significant injury-related complication based on credible medical evidence. (Emphasis added). Despite this regulation's adoption of a time period within which the symptoms of a work-related psychiatric disorder must manifest themselves in order to be held compensable, the corresponding statutes do not contain a similar requirement. (See footnote 5)
Rather, the statutes authorizing injured workers to apply for an adjustment of their claims to add additional, compensable components of their initial work-related injury do not impose any such time periods within which an additional symptom, condition, or aggravation of their initial work-related injuries must appear to be held compensable. (See footnote 6)
Specifically, W. Va. Code § 23-4-16(b) (2005) (Repl. Vol. 2005) provides that,
[i]n any claim in which an injured employee makes application for a further award of permanent partial disability benefits . . ., if the application is in writing and filed within the applicable time limit as stated [in W. Va. Code § 23-4- 16(a)(2)] above, the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, shall pass upon the request within thirty days of its receipt and, if the commission determines that the claimant may be entitled to an award, the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, shall refer the claimant for further examinations that are necessary.
Similarly, W. Va. Code § 23-5-2 (2005) (Repl. Vol. 2005) directs that,
[i]n any case where an injured employee makes application in writing for a further adjustment of his or her claim under the provisions of section sixteen [§ 23-4-16], article four of this chapter and the application discloses cause for a further adjustment, the commission shall, after due notice to the employer, make the modification, or changes with respect to former findings or orders in the claim that are justified. . . .
Accord W. Va. C.S.R. § 85-20-6.6 (2005) (requiring treating physician to update diagnosis codes but not imposing time limitation within which such diagnosis must be made); Kincannon v. State Comp. Comm'r, 107 W. Va. 533, 149 S.E. 665 (1929) (recognizing that full extent of injured worker's compensable injury may not be immediately apparent and contemplating initial and subsequent disability awards, all related to initial, compensable, work-related injury).
In addition to being contrary to the legislative intent to permit the adjustment of workers' compensation claims without regard to the time within which the additional symptom of the compensable injury manifested itself, the application of W. Va. C.S.R. § 85-20-12.2.a unfairly differentiates between psychiatric and physical complications of a compensable work-related injury. By its terms, W. Va. C.S.R. § 85-20-12.2.a establishes different standards for psychiatric (non-physical) symptoms arising from a compensable, work-related injury and physical (non-psychiatric) symptoms arising from the same injury insofar as the time frame within which psychiatric symptoms must be manifest to be held compensable do not have a corresponding time frame that is applicable to physical symptoms arising from the same work-related injury. Such a distinction between psychiatric and physical conditions attributable to a compensable injury are arbitrary and impermissible.
A workmen's compensation claim must be considered in its entirety and cannot be regarded as divisible in the sense of being barred . . . 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., in part, Bowman v. Workmen's Comp. Comm'r, 150 W. Va. 592, 148 S.E.2d 708 (1966). Because the practical effect of the language of W. Va. C.S.R. § 85-20-12.2.a is to treat a disability of one character, i.e., psychiatric symptoms, differently than another disability arising from the same injury but of a different character, i.e., physical symptoms, we find W. Va. C.S.R. § 85-20-12.2.a to be invalid and unenforceable.
Accordingly, we hold that W. Va. C.S.R. § 85-20-12.2.a (2005) is an invalid administrative rule because it arbitrarily distinguishes between psychiatric (non-physical) symptoms of a compensable work-related injury and physical (non-psychiatric) symptoms of the same compensable work-related injury when the Legislature has not made such a distinction. We further hold that neither W. Va. Code § 23-4-16(b) (2005) (Repl. Vol. 2005) nor W. Va. Code § 23-5-2 (2005) (Repl. Vol. 2005) requires that, to be held compensable, symptoms of a work injury-related psychiatric disorder must manifest within six months of the underlying work-related injury or a significant complication thereof.
Applying these holding to the facts of the two cases before us, we conclude that the decisions to deny the claimants' requests to add a diagnosis of depression were plainly wrong. See Syl. pt. 5, Bragg v. State Workmen's Comp. Comm'r, 152 W. Va. 706, 166 S.E.2d 162. Pursuant to W. Va. Code § 23-4-16(a)(2), requests to modify, change, or reopen an existing claim must be made within five years of the date of the initial award. Here, both Mr. Bowers and Mr. Dotson met this threshold requirement. Mr. Bowers requested the addition of a depression diagnosis on May 24, 2006, which date was within five years of his initial 34% permanent partial disability award, which was granted on November 18, 2005, and the appeal of which was dismissed at Mr. Bowers's request. Likewise, Mr. Dotson requested the addition of a depression diagnosis on February 1, 2006, which date was within five years of his initial PPD award, which was granted on February 25, 2003, and ultimately affirmed, as modified by the OOJ, by the Board of Review's order entered December 29, 2004. Cf. Syl. pt. 2, in part, Pugh v. Workers' Comp. Comm'r, 188 W. Va. 414, 424 S.E.2d 759 (1992) (holding that statutory time limit set forth in W. Va. Code § 23-4-16(a)(2) begins to run from the last payment in the original award or any subsequent increase thereto). Therefore, both claimants have met the temporal requirements for requesting a modification of their underlying claims.
Moreover, to be held compensable, an injury must have occurred in the course of and resulting from [the worker's] . . . employment. W. Va. Code § 23-4-1(a). Here, the parties do not dispute that Mr. Bowers and Mr. Dotson both injured their back as a result of a work-related injury, and, in fact, both of their underlying claims have been held compensable. With respect to the depression diagnosis they seek to add to their claims, both claimants represent that they were not depressed before their work-related injuries, and both claimants have presented unrefuted evidence that their depression has resulted from their compensable back injuries. Because both Mr. Bowers and Mr. Dotson have demonstrated a causal relationship between the diagnosis of depression they request and their underlying, work-related injuries, their request to add such a diagnosis should have been granted. Accordingly, the Board's orders refusing to add such a diagnosis in both cases are reversed, and both cases are remanded with directions to add a diagnosis of depression to the claimants' compensable claims. See 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 [Claims Administrator] in his former findings which would entitle claimant to greater benefits than he has already received, the claim should be reopened, and this Court will reverse an order of the Workmen's Compensation . . . Board [of Review] affirming an order of the [Claims Administrator] which denies a reopening of the claim.).