Submitted: February 2, 1993
Filed: March 16, 1993
Charles W. Ellis
Huntington, West Virginia
Attorney for Petitioners
Robert M. Nunley
Samuel P. Cook
Assistant Attorney General Sr. Assistant Attorney General
Charleston, West Virginia Charleston, West Virginia
Attorney for Respondent Attorney for Respondent
Andrew N. Richardson, Workers' Robert J. Smith, Chief
Compensation Commissioner Administrative Law Judge
JUSTICE MILLER delivered the Opinion of the Court.
1. The Workers' Compensation Commissioner's role under
the system contained in W. Va. Code, 23-5-1 (1990), is essentially
one of fact gathering from the preliminary forms filed, the medical
reports submitted by the parties, and independent physical
examinations ordered by the Commissioner under W. Va. Code, 23-4-8
(1990). The Commissioner makes rulings with regard to the benefits
sought by a claimant or to the employer's challenges to benefits.
If a party objects to these rulings, the matter is referred to the
Office of Judges for an evidentiary hearing and an ultimate ruling
by an administrative law judge.
2. One of the primary purposes of W. Va. Code, 23-5-1j,
is to enable the Workers' Compensation Commissioner, through
counsel, to protect against second injury life awards or permanent
total disability awards where the employer has not appeared or is
willing to concede a second injury life award because the
employer's share of liability for the award is very minor.
3. W. Va. Code, 23-5-1j(a), enables the Office of
Judges to remand a claim for a second injury life award or a
permanent total disability award to the Workers' Compensation
Commissioner if such a claim is first asserted before the Office of
Judges or if an administrative law judge, in reviewing the claim,
finds the record incomplete on the issue of whether such an award
should be given.
4. W. Va. Code, 23-5-1j, is not designed to require that every claim for a second injury life award or a permanent total disability award that comes from the Workers' Compensation Commissioner on an objection must automatically be remanded back to the Commissioner.
5. W. Va. Code, 23-5-1h, provides that an
administrative law judge shall, within thirty days after final
hearing, render a decision affirming, reversing or modifying the
Workers' Compensation Commissioner's action, and that said decision
shall contain findings of fact and conclusions of law and shall be
mailed to all interested parties. This is a mandatory duty.
6. "'"Mandamus is a proper remedy to compel tribunals
and officers exercising discretionary and judicial powers to act,
when they refuse so to do, in violation of their duty, but it is
never employed to prescribe in what manner they shall act, or to
correct errors they have made." Syl. pt. 1, State ex rel. Buxton
v. O'Brien, 97 W. Va. 343, 125 S.E. 154 (1924).' Syl. pt. 2, State
ex rel. Lambert v. Cortellessi, 182 W. Va. 142, 386 S.E.2d 640
(1989)." Syllabus, Ney v. West Virginia Workers' Compensation
Fund, 186 W. Va. 180, 411 S.E.2d 699 (1991).
The petitioners in this case are eight claimants seeking
second injury life awards (SILA) or permanent total disability
(PTD) awards from the respondents, the Commissioner of the State
Workers' Compensation Fund (Commissioner) and Chief Administrative
Law Judge (Chief ALJ) of the State Workers' Compensation Office of
Judges. The petitioners have brought this original proceeding in
mandamus requesting that we compel the respondents to issue orders
granting PTD status in each of their claims. The petitioners also
ask that the respondents be ordered to pay their reasonable
attorney's fees, costs, and expenses incurred in this proceeding.
Each of the eight petitioners is a claimant seeking benefits from the State Workers' Compensation Fund. Each of the petitioners has, in the course of litigating various claims for benefits, made motions for PTD status before the Workers' Compensation Office of Judges. In each case, once a motion for PTD had been made, the Office of Judges ceased action on the prior litigation, holding that portion of the claim in abeyance, and remanded the claim to the Commissioner solely for a determination on the PTD motion.
Upon remand of the claims by the Office of Judges, the
Commissioner denied each of the petitioners' PTD motions without
elaboration on the facts of the claim. Thereafter, each petitioner
protested the Commissioner's denial of PTD status to the Office of
Judges. These protests occurred between April and August of 1992.
The Office of Judges had not rendered final appealable orders in
any of the PTD claims as of September 17, 1992, the date of the
petitioners' initiation of mandamus proceedings in this Court.
The petitioners initiated this extraordinary proceeding
because of their belief that they have been "subjected to the same
unduly burdensome and inefficient Workers' Compensation litigation
process which has prevailed in West Virginia for so many years."
The petitioners also assert that they have a right to PTD awards on
the merits of their claims, and that mandamus is an appropriate
proceeding to determine the merits of their PTD claims. The
petitioners encourage us to "closely review the procedural handling
of these work-related injury claims by the Workers' Compensation
Fund (Commissioner and Office of Judges) and to decline to accept
the inefficient handling of such claims[.]"
On November 4, 1992, we issued a rule to show cause
against the respondents. This rule was not issued to examine the
merits of the petitioners' PTD claims, but rather to determine
whether the respondents were performing their legal duties as
required by W. Va. Code, 25-5-1, et seq. We note that in 1990 the
West Virginia legislature amended W. Va. Code, 25-5-1, et seq., and
fundamentally altered the workers' compensation protest and hearing
procedures. Because we have had no prior occasion to examine the
new procedures, we formulated a series of ten questions to be
answered by the parties to this action, and also solicited other
interested counsel to offer briefs amicus curiae in response to
It is commonly accepted that the protest and hearing procedures utilized by the State Workers' Compensation Fund prior to the 1990 amendments to W. Va. Code, 25-5-1, et seq., created a litigatory nightmare. Protested claims were known to flounder for years in a sea of delays, continuances, and sheer inefficiency.See footnote 1 We are informed that a major problem of the earlier system was that the hearing examiners who conducted evidentiary hearings were not full-time employees.
Another critical problem was that some employers who had ceased doing business or who had gone into bankruptcy were not represented in the claims process. Consequently, where the claimant was seeking a substantial award, such as PTD or SILA, there would be an inadequate defense raised against these awards.
Moreover, in SILA claims, because the employer, under the second-injury statute, W. Va. Code, 23-3-1, is charged only with the
amount of disability created by the last injury, the employer would
often acquiesce in the SILA where the last injury constituted a
small percentage of the claimant's overall disability. This would
result in the Second Injury Fund bearing the major portion of the
SILA.See footnote 2
For the foregoing reasons, the legislature in 1990 made
significant changes to the workers' compensation procedural
system.See footnote 3 These changes became effective on July 1, 1991.See footnote 4 The
1990 amendments created the positions of full-time administrative
law judges (ALJ). The ALJs are supervised by a Chief
Administrative Law Judge (Chief ALJ). W. Va. Code, 23-5-1g.
Moreover, the handling of evidentiary hearings, formerly controlled
by the Commissioner, is now controlled by an ALJ in accordance with
the time standards set forth in W. Va. Code, 23-5-1h.
Thus, the Commissioner's role under the new system
contained in W. Va. Code, 23-5-1 (1990), is essentially one of fact
gathering from the preliminary forms filed, the medical reports
submitted by the parties, and independent physical examinations
ordered by the Commissioner under W. Va. Code, 23-4-8 (1990).See footnote 5 The
Commissioner makes rulings with regard to the benefits sought by a
claimant or to the employer's challenges to benefits. If a party
objects to these rulings, the matter is referred to the Office of
Judges for an evidentiary hearing and an ultimate ruling by an ALJ.
Perhaps the most novel change to the compensation
litigation scheme involves claims for a SILA or PTD award, that are
now controlled by W. Va. Code, 23-5-1j. This section comes into
play after a party has objected to the initial decision of the
Commissioner in a claim where a SILA or PTD award is sought. Under
W. Va. Code, 23-5-1 (1990), once the Commissioner has ruled, and
either party objects, the objection is filed with the Office of
Judges and is processed there.See footnote 6 The ALJ is then authorized under
W. Va. Code, 23-5-1j(a)See footnote 7 to remand the matter to the Commissioner,
who then has 120 days to develop additional informationSee footnote 8 and
determine whether to grant such an award.
Furthermore, W. Va. Code, 23-5-1j(b), provides, that the
protested decision must remain in effect during the remand
proceedings before the Commissioner, and all action on the protest
before the Office of Judges must be held in abeyance until the
Commissioner renders a decision on the SILA or PTD motion within
the 120-day period. If any party objects to the Commissioner's
decision on the SILA or PTD motion upon remand, then pursuant to W.
Va. Code, 23-5-1j(b), that objection must be made to the Office of
Judges and must be "made part of the proceedings on the first
objection."See footnote 9
Having in mind the purpose of W. Va. Code, 23-5-1j
(1990), we cannot avoid commenting on one paramount problem which
none of the parties nor the amicus curiae discuss. Under the prior
procedural system where the Commissioner handled the protest
hearings through hearing examiners, notice of a SILA claim would
often occur at some evidentiary hearing when the claimant would
move for a SILA and ask that his prior injuries be cross-indexed
into his present claim so that they could be considered in the
second-injury evaluation. See, e.g., Young v. Workers'
Compensation Commissioner, 181 W. Va. 440, 442, 383 S.E.2d 72, 74
(1989): "It was not until the claimant moved for a second injury
evaluation, and the medical and vocational experts began to
evaluate his total impairment based upon all of his prior injuries,
that the permanent total disability became apparent." Miracle v.
Workers' Compensation Comm'r, 181 W. Va. 443, 444, 383 S.E.2d 75,
76 (1989) ("It was not until a hearing on October 30, 1986, that
the claimant's attorney advised that he would move for second
Under the new procedure, the Commissioner does not
conduct hearings. The process before the Commissioner is now
essentially a gathering of medical information by the parties and
through the Commissioner's independent examination. We are aware
of no regulation or forms requiring a claimant to identify that a
SILA or PTD award is being sought at the Commissioner's level. If
such a procedure existed, it would adequately alert the
Commissioner and the employer so that a cross-indexing of the
claimant's other claims could occur and relevant medical
examinations could be obtained on the SILA or PTD issue.See footnote 10
Moreover, the Commissioner would be informed so that counsel could
be obtained to protect the Workers' Compensation Fund. If such
notification is not required at some initial stage before the
Commissioner, it is almost certain that the claim will not be
sufficiently developed so that the Commissioner may make an
informed judgment as to a SILA or PTD award. When a claim is
inadequately developed, it must then pass through the convoluted
procedures under W. Va. Code, 23-5-1j(a).
We note that the Commissioner has the authority and the
duty under W. Va. Code, 23-1-13 (1923),See footnote 11 to adopt rules of
procedure, as well as forms relating to workers' compensation
benefits under W. Va. Code, 23-1-14 (1991).See footnote 12 We hope this
deficiency will be corrected.See footnote 13
We next address the several claims raised. The petitioners appear to have abandoned their original assertion that an ALJ is not, in certain circumstances, warranted in remanding a SILA or PTD claim brought pursuant to a claimant's objection to the Commissioner's failure to grant such an award. It was the petitioners' position that if a claimant's medical and vocational evidence show entitlement to a SILA or PTD award, the ALJ should grant such an award. As we have earlier pointed out, one of the primary purposes of W. Va. Code, 23-5-1j, is to enable the Commissioner, through counsel, to protect against SILA or PTD awards where the employer has not appeared or is willing to concede a SILA because the employer's share of liability for the award is very minor.
The language of W. Va. Code, 23-5-1j(a), is clear. It
enables the Office of Judges to remand a claim for a SILA or PTD
award to the Commissioner if such a claim is first asserted before
the Office of Judges or if an ALJ, in reviewing the claim, finds
the record incomplete on the issue of whether such an award should
be given.See footnote 14 The relevant text states that, if "any party to a
claim pending before the office of judges requests . . . a
permanent total disability award or a second injury life award or
if . . . the record is incomplete on the issue . . . [an order
shall be entered] . . . remanding the claim to the commissioner."
However, we do not interpret this section to
automatically require a remand in all instances. Certainly, where
the Commissioner has granted a claimant a SILA or PTD award and the
medical and vocational reports are fully developed by both the
claimant and the employer, and the employer objects to the award,
the claim should not be remanded by the ALJ. It should proceed to
evidentiary hearings on the employer's objection before the ALJ.
Moreover, if a SILA or PTD claim were fully developed by
both the claimant and the employer, with the employer opposing such
an award, and the Commissioner rejects such an award and the
claimant protests, the matter should be heard by the ALJ.
On the other hand, clear grounds for remand would exist
under W. Va. Code, 23-5-1j, (1) where a claimant objects to the
Commissioner's ruling and then, for the first time, raises a claim
for a SILA or PTD award before the Office of Judges, or (2) where
the Commissioner rejects a SILA or PTD motion and the record is
incomplete because the employer did not appear or did not object to
While the foregoing examples are not designed to cover
every factual situation, it bears emphasizing that W. Va. Code, 23-5-1j, is not designed to require that every SILA or PTD claim that
comes from the Commissioner on an objection must automatically be
remanded to the Commissioner. If the legislature intended this
result, it could easily have changed the first sentence of W. Va.
Code, 23-5-1j to read: "Following an objection to any decision of
the commissioner where permanent total disability or second injury
life award is sought, the administrative law judge shall enter an
order remanding the claim to the commissioner."
Because we find that W. Va. Code, 23-5-1j, gives discretion to the Office of Judges to remand SILA and PTD claims to the Commissioner, we decline to issue a mandamus on this portion of the petitioners' claim.
The petitioners assert, and it is apparently not denied, that the ALJ does not meet the time requirement that an order be entered within thirty days after the final hearing. W. Va. Code, 23-5-1h, provides that an ALJ "shall, within thirty days after final hearing, render a decision affirming, reversing or modifying the commissioner's action," and that "[s]aid decision shall contain findings of fact and conclusions of law and shall be mailed to all interested parties."See footnote 15
There can be little question that under our decision in
Meadows v. Lewis, 172 W. Va. 457, 307 S.E.2d 625, (1983), this is
a mandatory duty, and, while the particular Code provisions in
Meadows were different, Syllabus Points 5 and 6 still provide
mandatory time periods for making a decision:
"5. The workers' compensation commissioner must act on workers' compensation claims within the statutorily prescribed time limits found in W. Va. Code §§ 23-4-1c, 23-4-16, and 23-5-1 (1981 Replacement Vol.).
"6. The commissioner is required by
W. Va. Code § 23-1-13 (1981 Replacement Vol.)
to promulgate regulations specifying, inter
alia, internal procedural time limits through
which adjudications and awards are made."
See also Scites v. Huffman, 174 W. Va. 191, 324 S.E.2d 152 (1984).
Although the petitioners make the general assertion that
final orders are being delayed beyond the thirty-day period
prescribed in W. Va. Code, 23-5-1h, we do not find that there has
been a final hearing held in their claims before the ALJ. The
thirty-day provision is not triggered until the final hearing is
held. Thus, we are unable to grant a mandamus on this ground.
The petitioners also assert that the Office of Judges does not follow the time standards set out in W. Va. Code, 23-5-1h, which states, in relevant part:
"Upon receipt of an objection, the office of judges shall, within fifteen days from receipt thereof, set a time and place for the hearing of evidence and shall notify the commissioner of the filing of the objection. . . .
"The employer, the claimant and the
commissioner shall be notified of such hearing
at least ten days in advance, and the hearing
shall be held within thirty days after the
filing of the objection unless such hearing be
postponed by agreement of the parties or by
the chief administrative law judge or such
authorized representative for good cause."
Apparently, the Office of Judges at the direction of the
Chief ALJ has adopted the practice of issuing "Automatic Time Frame
Orders" in lieu of holding the initial hearing mandated by W. Va.
Code, 23-5-1h, within thirty days of the filing of the objection to
the Commissioner's ruling. See also 7 W. Va. C.S.R. § 93-1-2.9(a-b) (effective May 4, 1992).See footnote 16 Each Automatic Time Frame Order has
a provision allowing a party to object to the order within ten days
of its issuance. Each Automatic Time Frame Order further states:
"If neither party objects to [the] time frame order in a timely
manner, then the terms of [the time frame] order shall take effect
automatically, and the acceptance of this order shall constitute a
waiver of the initial hearing in this claim."See footnote 17
The petitioners assert that the Automatic Time Frame
Orders issued by the Chief ALJ are invariably issued after a
lengthy delay. As illustrative of the point, they attached to
their supplemental brief several time frame orders. Typical of the
problem is petitioner Terry Gibson's claim, where the case was
remanded to the Commissioner under W. Va. Code, 23-5-1j, on
December 10, 1991. The Commissioner denied PTD on April 17, 1992.
The matter was then referred back to the Office of Judges on the
petitioner's protest. The Chief ALJ's Automatic Time Frame Order,
was entered January 11, 1993. It lists a number of other protests
made in Mr. Gibson's case that were combined for evidentiary
hearings.See footnote 18 We are not informed, and we are at a loss to
understand, how the PTD ruling becomes so fragmented at the
Commissioner's level resulting in the inclusion of various orders.
A more extreme example of time delay and fragmentation is
reflected in the Automatic Time Frame Order in petitioner Bruce
Perry's case.See footnote 19 Mr. Perry's claim relates to a 1986 injury and is
still in the system awaiting hearings before an ALJ with a time
frame order entered on January 5, 1993. It allows consecutive
development of the claim until January 25, 1994, "subject to
possible rescheduling."See footnote 20
The claims of both Mr. Gibson and Mr. Perry involve a PTD award issue. However, even in those claims where there is only a modest amount of permanent partial disability at issue, there is no expeditious resolution of the matter. This is illustrated by petitioner Bill Fitzpatrick's time frame order which was entered on April 28, 1992. It dealt with the claimant's protest to the Commissioner's January 17, 1991 order granting an 8 percent permanent partial disability award.See footnote 21 This time frame order permits consecutive development of the claim by the parties ending July 1, 1993, unless extended. Thus, some fourteen months are consumed under the time frame order. On top of this, if we accept the protest to the Commissioner's order as being in July of 1991, the entry of the time frame order on April 28, 1992, was ten months after entry of the Commissioner's order and was well beyond the limits contained in W. Va. Code, 23-5-1h. There may be some valid explanation of this byzantine procedure, but it has not emerged in any of the respondents' briefs.
This case serves to demonstrate that the new system
appears to be operated no more efficiently than the old. Moreover,
the inordinate delays in processing claims obviously insulate the
Workers' Compensation Fund from any threat that it will be forced
to pay all claims at one time.See footnote 22 We decline, however, to issue a
mandamus on the time frame order procedure simply because the
petitioners have not challenged its use as being inconsistent with
the hearing procedures prescribed under W. Va. Code, 23-5-1h.
Finally, we note that the Chief ALJ asserts that under his rule-making powers, he is developing time frame guidelines keyed to the various classes of claims involved in hearings before the Office of Judges.See footnote 23 We can only state that these time frames are longer than we have set out in our time schedules for circuit courts where the issues are more complex. In the vast majority of compensation cases, there is no liability issue since the right to compensation accrues as a result of an injury arising out of the workplace. Negligence or fault of the parties is not an issue in compensation claims, whereas in a civil case, this is often the key and most complicated issue. These generous time frames are inconsistent with one of the avowed purposes of the Workers' Compensation Act, as set out in Syllabus Point 1 of Workman v. State Workmen's Compensation Comm'r, 160 W. Va. 656, 236 S.E.2d 236 (1977):
"Long 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. W. Va. Code, 23-5-3a."
See also Syllabus Point 2, Boggs v. Richardson, 187 W. Va. 318, 418
S.E.2d 764 (1992); Syllabus Point 3, Meadows v. Lewis, 172 W. Va.
457, 307 S.E.2d 625 (1983).
It would seem to us that by the time the claim has
reached the hearing level before an ALJ, its issues should be
developed reasonably enough for the ALJ to comprehend them. A
telephone conference call to the attorneysSee footnote 24 should be sufficient
to narrow the issues and determine what witnesses will be used. As
in any case, both parties should develop their cases concurrently
rather than consecutively, as the time order permits. Moreover,
there is a need for intervention by the ALJ at an early stage in
order to encourage settlement of permanent partial disability
cases, as permitted under W. Va. Code, 23-5-1f.
Under the current procedure, the time frame order is
entered automatically, and, unless there is an objection, nothing
more is done with the claim until the time frame expires. One
cannot help but believe that this procedure is designed to
accommodate the attorneys rather than to promptly dispose of the
claim. This is contrary to any theory of case management which
stresses that the judges must control the docket rather than the
attorneys.See footnote 25 One can only sense that unless the ALJs become more
active in handling the claims before them, the system is again
doomed to fail in terms of the efficiency in which claims are
handled.See footnote 26
Workman's policy against long delays compels us to be equally critical of the Chief ALJ's failure to hire a sufficient number of ALJs to reduce the backlog of claims. Under W. Va. Code, 23-5-1g(c), "with consent of the commissioner, the chief administrative law judge shall employ such additional administrative law judges and other personnel as are necessary for the proper conduct of a system of administrative review[.]" The Chief ALJ in his affidavit before this Court states that "[i]nitially eighteen judges were hired. Four of those have left seeking other employment. We are now in the process of hiring nine additional judges." (Affidavit, p.6). The word "shall" imparts a mandatory duty to obtain sufficient personnel to efficiently operate the system, similar to the mandate discussed in Allen v. State Human Rights Commission, 174 W. Va. 139, 324 S.E.2d 99 (1984).
This same mandatory duty exists with regard to W. Va.
Code, 23-5-1g(f), which requires the Chief ALJ to "establish a
procedure for the hearing of disputed claims, take oaths, examine
witnesses . . . ."See footnote 27 It does not appear that these rules and
procedures have been adopted even though the new system has been in
existence for more than twenty months. When we consider that these
provisions were adopted on July 1, 1990, but not made effective
until July 1, 1991, the delay is thirty-two months. The
petitioners have not asked us to require the Commissioner or the
Chief ALJ to adopt rules of procedure. Therefore, we decline at
this time to issue a rule in mandamus compelling the Chief ALJ and
the Commissioner to fulfill their mandatory duty and promulgate
rules, as we have done in other cases. See, e.g., Nelson v.
Merritt, 176 W. Va. 485, 345 S.E.2d 785 (1985); Syllabus Point 9,
Allen v. State Human Rights Comm'n, supra; Syllabus Point 8, United
Mine Workers of America v. Scott, 173 W. Va. 356, 315 S.E.2d 614
(1984); Syllabus Point 6, Meadows v. Lewis, supra.
In summary, we find that the petitioners' main complaint regarding the ALJ remand under W. Va. Code, 23-5-1j, is not reachable through mandamus, as it involves a matter of discretion. Our traditional rule in a mandamus against a public official is contained in the Syllabus of Ney v. West Virginia Workers' Compensation Fund, 186 W. Va. 180, 411 S.E.2d 699 (1991):
"'"Mandamus is a proper remedy to
compel tribunals and officers exercising
discretionary and judicial powers to act, when
they refuse so to do, in violation of their
duty, but it is never employed to prescribe in
what manner they shall act, or to correct
errors they have made." Syl. pt. 1, State ex
rel. Buxton v. O'Brien, 97 W. Va. 343, 125
S.E. 154 (1924).' Syl. pt. 2, State ex rel.
Lambert v. Cortellessi, 182 W. Va. 142, 386
S.E.2d 640 (1989)."
Petitioners are not entitled to relief on mandamus with
regard to the failure of the ALJ to comply with the thirty-day time
period for a decision after the final hearing under W. Va. Code,
23-5-1h. This is because there has been no final hearing held in
Although we have expressed our concern about the
Automatic Time Frame Order procedure and the lack of procedural
rules, the petitioners do not seek relief in this area.
Furthermore, we are not presented with a sufficiently developed
factual record to determine the extent of the deficiencies.
For all of the foregoing reasons, we decline to award a
writ of mandamus. Based upon this determination, we award no
attorney's fees or costs.
Footnote: 1See, e.g., Spurlock v. Spieler, 183 W. Va. 296, 395 S.E.2d 540 (1990); Nelson v. Merritt, 176 W. Va. 485, 345 S.E.2d 785 (1985); Scites v. Huffman, 174 W. Va. 191, 324 S.E.2d 152 (1984); Meadows v. Lewis, 172 W. Va. 457, 307 S.E.2d 625 (1983).
Footnote: 2Almost twenty years ago in Cline v. State Workmen's Compensation Commissioner, 156 W. Va. 647, 652, 196 S.E.2d 296, 299 (1973), we recognized this problem and urged the Commissioner to become involved in SILA cases:
"[I]n cases resulting in a life award from
the 'second injury' reserve under Code, 1931,
23-3-1, as amended, the real adversary party
is not the employer who is chargeable only
for permanent partial ratings. It is the
Workers' Compensation Fund which must bear
the burden of payment of the total and
permanent disability award. Under the
statutory scheme . . . it would seem
appropriate for the Fund to be represented by
its counsel or by the Office of the Attorney
From this writer's experience on this Court since January 1, 1977, the Commissioner has never sought counsel in any SILA cases appealed to this Court either before or after the adoption of W. Va. Code, 23-5-1 (1990).
Footnote: 3For a comprehensive examination of the workers' compensation system and its goals and objectives, both past and present, see Emily A. Spieler, Injured Workers, Workers' Compensation, and Work: New Perspectives on the Workers' Compensation Debate in West Virginia, 95 W. Va. L. Rev. 333 (1993).
Footnote: 4See 1990 W. Va. Acts ch. 12 (2d Ex. Sess.).
Footnote: 5See note 8, infra.
Footnote: 6W. Va. Code, 23-5-1 (1990), in relevant part, states:
"All objections to commissioner's decisions
which are not appealable to the appeal board
and which are filed on or after the first day
of July, one thousand nine hundred ninety-one, shall be filed with the office of judges
in accordance with the procedures set forth
in section one-g and section one-h [§ 23-5-1g
and § 23-5-1h] of this article."
Footnote: 7W. Va. Code, 23-5-1j(a), states, in part:
"If, following an objection to any
decision of the commissioner, any party to a
claim pending before the office of judges
requests that a claimant be awarded a
permanent total disability award or a second
injury life award or if the administrative
law judge on his or her own motion believes
that the record is incomplete on the issue of
whether a claimant should be issued a
permanent total disability award or a second
injury life award, then the administrative
law judge shall enter an order remanding the
claim to the commissioner. . . . The
commissioner shall act upon any matter
remanded to him or her pursuant to this
section in a speedy and timely manner and in
no event longer than one hundred twenty
Footnote: 8The Commissioner has the right to order independent medical examinations, as authorized by W. Va. Code, 23-4-8 (1990), and its predecessor, W. Va. Code, 23-4-8 (1975). In Dalton v. Spieler, 184 W. Va. 471, 401 S.E.2d 216 (1990), we discussed the relationship between W. Va. Code, 23-4-8, and W. Va. Code, 23-4-7a.
Footnote: 9W. Va. Code, 23-5-1j(b) (1990), provides:
"During the pendency of the remand
proceedings before the commissioner, the
original decision from which the objection
was taken shall remain in effect and action
on the protest held in abeyance pending the
commissioner's action on the remand order.
Upon the entry of a decision on the issue of
whether a permanent total disability award or
a second injury life award is to be made, the
claim shall be returned to the office of
judges for such further proceedings as may be
required on that first objection. If a
further objection is made pursuant to
subsection (a) of this section to the
commissioner's decision on the issue of
whether a permanent total disability award or
a second injury life award is to be made,
then such proceedings on such objection shall
be made part of the proceedings on the first
Footnote: 10In Miracle v. State Workers' Compensation Commissioner, 181 W. Va. at 446, 383 S.E.2d at 78, we pointed out the obvious problem that is caused when notice of a SILA motion was not given to the Commissioner: "The second injury statute, which permits prior impairments to be considered in the permanent disability calculus, adds another dimension. In this area, further problems arise because physicians frequently evaluate only the second injury and ignore the residual disability from prior injuries."
Footnote: 11W. Va. Code, 23-1-13 (1923), provides:
"The commissioner shall adopt reasonable and proper rules of procedure, regulate and provide for the kind and character of notices, and the service thereof, in cases of accident and injury to employees, the nature and extent of the proofs and evidence, the method of taking and furnishing the same to establish the rights to benefits or compensation from the fund hereinafter provided for, or directly from employers as hereinafter provided, as the case may require, and the method of making investigations, physical examinations and inspections, and prescribe the time within which adjudications and awards shall be
Footnote: 12W. Va. Code, 23-1-14 (1991), states:
"The commissioner shall prepare and
furnish free of cost blank forms (and provide
in his rules for their distribution so that
the same may be readily available) of
applications for benefits for compensation
from the workers' compensation fund, or
directly from employers, as the case may be,
notices to employers, proofs of injury or
death, of medical attendance, of employment
and wage earnings, and such other blanks as
may be deemed proper and advisable, and it
shall be the duty of employers to constantly
keep on hand a sufficient supply of such
It is substantially similar to its predecessor.
Footnote: 13In Part III(C), we point out other mandatory rule-making authority directed at the Chief ALJ. For reasons discussed in that section, we decline to enter a mandamus to require promulgation of such rules. The same reasons apply here.
Footnote: 14For the applicable text of W. Va. Code, 23-5-1j(a), see note 7, supra.
Footnote: 15The relevant portion of W. Va. Code, 23-5-1h, is:
"All hearings shall be conducted as
determined by the chief administrative law
judge pursuant to the rules of practice and
procedure promulgated pursuant to section
one-g [§ 23-5-1g] of this article. Upon
consideration of the entire record, the chief
administrative law judge or an administrative
law judge within the office of judges shall,
within thirty days after final hearing,
render a decision affirming, reversing or
modifying the commissioner's action. Said
decision shall contain findings of fact and
conclusions of law and shall be mailed to all
interested parties." (Emphasis added).
Footnote: 16The decision not to hold initial hearings is virtually confirmed by the Chief ALJ's procedural rule contained in 7 W. Va. C.S.R. § 93-1-2.9(a), which states, in relevant part:
"Scheduling of Hearings.
"(a) First Hearing. The first
hearing shall be scheduled in accordance with
W. Va. Code § 23-5-1h and Sections 2.4 and
2.5 of these Rules. Whenever possible the
introduction of evidence should be completed
at the first hearing and the claim should be
submitted for decision. It is recognized
that in most claims such a process is not
possible. Accordingly, the ordinary use of
the first hearing shall be for the purpose of
addressing evidentiary matters,
simplification of issues, discussion of
settlement, where appropriate, the setting of
time frames within which the claim may be
timely and fairly processed. . . . Any Time
Frame Order issued shall be interlocutory in
Footnote: 17The contents of a time frame order are covered in 7 W. Va. C.S.R. § 93-1-2.9(b), which, in material part, provides:
"Time Frame Order. The Time Frame
Order will ordinarily set forth the issues in
litigation, a date by which each party must
submit reports from expert witnesses, the
date on which a hearing will be conducted to
examine or cross-examine the claimant and
other lay witnesses, a time frame within
which the claimant's treating physician or
the Commissioner's examining physician may be
cross-examined, a date by which all motions
must be made and such other matters as may be
appropriate depending on the case."
Footnote: 18The relevant portion of the Gibson time frame order is:
"The issues in litigation to be decided in
this action are:
"(a) The claimant's protest to the Commissioner's Order of April 17, 1992, denying request for permanent total disability award.
"(b) The claimant's protest to the Commissioner's Order of July 21, 1992, granting a 5% permanent partial disability award in addition to a 15% award.
"(c) The claimant's protest to the Commissioner's Order of September 3, 1992, closing the claim.
"(d) The claimant's protest to the Commissioner's Order of September 17, 1992, denying reopening.
"(e) The claimant's protest to the Commissioner's Order of November 4, 1992, closing the claim."
Footnote: 19The relevant portion of the Perry Automatic Time Frame Order is:
"The issues in litigation to be decided in
this action are:
"(a) The employer's protest to pay order # 0520274, payable to Huntington Hospital in the amount of $1,455.00.
"(b) The claimant's & employer's protest to the Commissioner's Order of July 14, 1986, granting a 5% award.
"(c) The claimant's protest to the
Commissioner's Order of May 2, 1989, denying
"(d) The claimant's protest to the Commissioner's Order of May 19, 1989, denying change of physician.
"(e) The claimant's protest to the Commissioner's Order of May 25, 1989, denying reopening.
"(f) The claimant's protest to the Commissioner's Order of May 31, 1989, denying request for CT scan and myelogram.
"(g) The claimant's protest to the Commissioner's Order of September 6, 1989, closing the claim.
"(h) The claimant's protest to the Commissioner's Order of May 2, 1990, closing the claim.
"(i) The claimant's protest to the Commissioner's Order date of May 30, 1990, granting an additional 5% permanent partial disability award.
"(j) The claimant's protest to the Commissioner's Order of July 21, 1992, denying request for permanent total disability award."
Footnote: 20The applicable portion of Mr. Perry's Automatic Time Frame Order is:
"As to the claimant's and employer's protest to the Commissioner's Order of July 14, 1986 & the claimant's protest to the Commissioner's Orders of May 30, 1990 & July 21, 1992, all of the protesting party's evidence on this issue must be introduced no later than May 25, 1993. The protesting party's witnesses, as well as the Commissioner's medical examiner(s) and the claimant's treating and
examining physician(s), must be cross-examined no later than January 25, 1994,
subject to possible rescheduling. The
responding party's evidence must be
introduced no later than November 25, 1993.
The responding party's witnesses must be
cross-examined no later than January 25,
1994. Any further hearings for the
examination or cross-examination of
witnesses, if needed, must be requested by a
party in writing prior to the expiration of
the applicable deadlines set forth above."
Footnote: 21As usual, Mr. Fitzpatrick's Automatic Time Frame Order deals with collateral issues which were:
"The issues in litigation to be decided in
this action are:
"a. Claimant's protest to the Commissioner's Order of January 17, 1991, granting the claimant an 8% permanent partial disability award.
"b. Claimant's protest to the Commissioner's Order of April 19, 1991, denying request for claimant's referral to Logan-Mingo Area Mental Health Center.
"c. Claimant's protest to the Commissioner's Order of May 6, 1991, denying request for claimant's referral to Dr. Robert Lowe.
"d. Claimant's protest to the Commissioner's Order of May 24, 1991, denying
reopening of the claim.
"e. Claimant's protest to the Commissioner's Order of June 12, 1991, denying payment for certain medication."
Footnote: 22That the Workers' Compensation Fund will not be forced to pay all claims at once is obviously contrary to the thesis advanced by the officials of the Workers' Compensation Fund, as illustrated by the March 4, 1993, article on page 3A of The Charleston Gazette:
"Legislation will be introduced
this session to improve the state Workers
Compensation Fund, an official said Thursday.
"The fund makes payments to people
injured on the job. The fund has a $1.2
billion unfunded liability, which is how much
the state would be short if all claims were
to come due at once, said Andrew Richardson,
commissioner of the state Bureau of
"'We're going to need to invest in
the system. It's like anything else. You
have to spend money to fix it,' Richardson
"Last year, the fund collected
$22.5 million more than it paid out,
"But total permanent disability
payments continue to cripple the fund."
It is interesting to note that the 1992 West Virginia Research League Statistical Handbook states, based on information from the Workers' Compensation Fund, that at the end of fiscal year 1991-92, the Fund had a balance in investments and cash on hand of $822,525,000.
Footnote: 23The following are several categories of time standard guidelines which were attached to the Chief ALJ's brief:
|* * *||* * *||* * *|
1 month cross-
examination at the end for the protesting party (6-6-1)
|6-6-1||Dependents Benefits (Fatals)||
1 month cross-
examination at the end for the protesting party (6-6-1)
2 months cross-
examination at the end for the protesting party (6-6-2)
PTD/SILA (after Remand
and return to [Office of Administrative Law Judges])
2 months cross-
examination at the end for the protesting party
Footnote: 24The files of the cases reaching this Court on appeal reflect that the great majority of claimants have counsel at the ALJ level.
Footnote: 25Section 2.50 of the American Bar Association's Standards Relating to Court Delay Reduction states that "the court, not the lawyers or litigants, should control the pace of litigation."
Footnote: 26The writer of this opinion is compelled to make another personal observation: The workers' compensation system encourages delays simply because payouts from the Fund are likewise delayed.
Footnote: 27W. Va. Code, 23-5-1g(f), provides:
"On and after the first day of July, one thousand nine hundred ninety-one, the chief administrative law judge shall have the power, which shall be delegated by the appeal board, to hear and determine all disputed claims in accordance with the provisions of this article, establish a procedure for the hearing of disputed claims, take oaths, examine witnesses, issue subpoenas, establish the amount of witness fees, keep such records and make such reports as are necessary for disputed claims, review and approve agreements to compromise and settle claims involving permanent partial disability awards permitted by the provisions of section one-f [§ 23-5-1f], article five of
this chapter, and exercise such additional
powers, including the delegation of such
powers to administrative law judges or
hearing examiners as may be necessary for the
proper conduct of a system of administrative
review of disputed claims."