Colin M. Cline, Esq.|
Katz, Kantor & Perkins
Princeton, West Virginia
Attorney for Appellant
Gretchen E. Pyles, Esq.|
Jackson & Kelly
Charleston, West Virginia
Attorney for Appellee
1. The Workmen's Compensation Law is remedial in its nature, and must
be given a liberal construction to accomplish the purpose intended. Syl. pt. 3, McVey v.
Chesapeake & Potomac Telephone Co., 103 W. Va. 519, 138 S.E. 97 (1927) (citation
2. [The Workers' Compensation Act] requir[es] the state compensation
commissioner in administering the workmen's compensation fund, to ascertain the
substantial rights of the claimants in such manner as will 'carry out justly and liberally the
spirit of the act' unrestricted by technical and formal rules of procedure . . . . Syllabus, in
part, Culurides v. Ott, 78 W. Va. 696, 90 S.E. 270 (1916) (citation omitted).
3. The Office of Judges of the Workers' Compensation Division must accept and consider evidence submitted by a claimant after the expiration of a time frame order, provided that the claimant has shown good cause for the delay.
McGraw, Chief Justice:
An employee claiming a workplace injury from exposure to toxic fumes
appeals the denial of her workers' compensation claim. The Workers' Compensation
Division (the Division) found that the employee did not present sufficient evidence to
demonstrate her injury was connected to her work. The Office of Judges (the OOJ)
affirmed, and refused to consider evidence submitted by the employee after the expiration
of a time frame for evidence introduction. The Workers' Compensation Appeal Board (the
WCAB) affirmed the original decision, and the decision to exclude the offered evidence.
In her appeal to this Court, the appellant argues that the OOJ should have considered her
additional evidence, or ruled her claim compensable on the original evidence presented. We
find that the OOJ and WCAB erred in not considering the additional evidence and reverse.
Hoods on these machines were intended to prevent the worker from being
exposed to fumes produced by the laser cutting process. Ms. Plummer alleged that parts
were sometimes too large to fit under the hood, so employees were told to use the machine
with the hood up. Ms. Plummer complains that this exposed her to fumes from the laser
cutting process, as well as increased concentrations of other plant fumes, which were drawn
past her by the exhaust fan in the open hood.
On February 1, 1996, Ms. Plummer was overcome by fumes. She complained
of numbness in her face and extremities, swelling and redness in her face, and difficulty
breathing. A company nurse checked her condition, and asked her to perform a breathing
test, but she was unable to generate sufficient airflow to get a reading on the test. She was
sent back to work with a respirator for the rest of the day, and did not return to work after
that time. Ms. Plummer visited her doctor the next day. Although her doctor found her
condition to be consistent with both acute and chronic exposure to fumes, he apparently
suggested benzine exposure as the cause. Ms. Plummer was also seen by a doctor on behalf
of B.F. Goodrich on February 14, 1996. This doctor found that Ms. Plummer's complaints
were most likely not work related, and were probably due to either allergies or depression.
Limiting its analysis to her initial claim form and the report from the
company's doctor, the Division denied her claim on July 24, 1996. Ms. Plummer appealed
that decision to the OOJ within the time limit set by statute. After an unexplained period of
inaction, the OOJ issued a so-called time frame order that established a period of time for
the parties to present evidence in the dispute. B.F. Goodrich requested an extension of this
time frame, and Ms. Plummer joined in that request. On March 24, 1998, the OOJ extended
the time frame order for ninety days, setting it to expire on or about June 24, 1998.
Lawyers representing Ms. Plummer, meanwhile, had applied on her behalf for
social security disability benefits for alleged chemical sensitivity that made it impossible for
her to return to her former job. The Social Security Administration ruled in Ms. Plummer's
favor on this claim. Also during this time, the firm representing Ms. Plummer experienced
some personnel changes, leading to a change in the lawyer representing her. According to
Ms. Plummer and her counsel, because of the social security proceeding and the change in
representation, she was unable to present any additional evidence to the OOJ before the time
frame order expired. On July 7, 1998, after the expiration of the time frame for presenting
evidence, the OOJ entered an order that officially submitted the matter for decision. About
three weeks later, on July 24, Ms. Plummer's counsel, hoping to introduce more evidence,
made a motion to set aside the July 7 order that submitted the case, and asked for an
extension of the time frame. Along with this motion, Ms. Plummer's counsel submitted
additional evidence, including additional medical reports from specialists who had
diagnosed her with problems relating to chemical exposure, along with information
concerning the various chemicals that may have been in use at the plant.
Yet in spite of Ms. Plummer's explanation, on September 14, 1998, an
Administrative Law Judge working in the OOJ denied Ms. Plummer's motion to extend the
time frame and affirmed the prior denial of her claim by the Division. In that decision, the
ALJ noted that she had not considered the additional evidence because Ms. Plummer offered
it after the case had been submitted for a final decision. Ms. Plummer appealed to the
WCAB, which eventually found against her and again affirmed the denial of her claim on
April 30, 1999. It is from this order that she appeals to this Court.
Beneath this blizzard of dates, orders, and hearings, Ms. Plummer makes two
basic arguments. First, she argues that the OOJ erred by finding that no good cause existed
for extending the time frame order and thereby refusing to consider her additional evidence;
second, she asserts that even without considering the excluded material, the OOJ had enough
evidence to find in favor of Ms. Plummer. Because we find that the OOJ erred by failing to
find good cause to extend the time frame order to permit the introduction of additional
evidence, we reverse.
The common law tort system with its defenses of contributory
negligence, assumption of risk and the fellow servant rule was
considered inimical to the public welfare and was replaced by a
new and revolutionary system wherein "fault" became
immaterial--essentially a no-fault system.
The Workmen's Compensation Act was designed to remove
negligently caused industrial accidents from the common law
Mandolidis v. Elkins Industries, Inc., 161 W. Va. 695, 699-700, 246 S.E.2d 907, 910-11
(1978) (emphasis in original).
Consistent with this historical perspective,See footnote 1
we have long acknowledged that
the Workers' Compensation Act is remedial legislation that has as its primary purpose
helping injured workers: The Workmen's Compensation Law is remedial in its nature, and
must be given a liberal construction to accomplish the purpose intended. Syl. pt. 3, McVey
v. Chesapeake & Potomac Telephone Co., 103 W. Va. 519, 138 S.E. 97 (1927) (citation
Over the years since the enactment of our Workers' Compensation Act, a great
number of cases have espoused this principal of liberality:
Compensation Acts, being highly remedial in character, though in derogation of the common law, should be liberally and broadly construed to effect their beneficient [sic] purpose. Sole v. Kindelberger, 91 W. Va. 603, 114 S.E. 151, 153 (1922). We consistently apply a liberality rule in workmen's compensation cases. Zackery v. State Workmen's Compensation Commission, 162 W. Va. 932, 253 S.E.2d 532 (1979); Johnson v. State Workmen's Compensation Commission, 155 W. Va. 624, 186 S.E.2d 771 (1972); Morris v. State Compensation Commissioner, 135 W. Va. 425, 64 S.E.2d 496 (1951); McVey v. Chesapeake & Potomac Telephone Co., 103 W. Va. 519, 138 S.E. 97 (1927).
Lee-Norse Co. v. Rutledge, 170 W. Va. 162, 166, 291 S.E.2d 477, 481 (1982).
Often repeated in our jurisprudence is this notion of liberality and the idea that
the law exists to aid workers in their recovery and not to thwart them. Consistent with this
view, the Legislature established that:
The commissioner shall not be bound by the usual common-law or statutory rules of evidence, but shall adopt formal rules of practice and procedure as herein provided, and may make investigations in such manner as in his judgment is best calculated to ascertain the substantial rights of the parties and to carry out the provisions of this chapter.
W. Va. Code § 23-1-15 (1923).
When reviewing this statutory provision, an earlier Court noted that the Court
must bear in mind the intent of the Legislature when considering cases under the Act:
In our interpretation of the compensation act we must remember that our Legislature has shown an earnest endeavor above everything else to give material justice its due while formal rules of jurisprudence are pushed aside. We do not cling to the letter but on the contrary the interpretation is to be liberal and in keeping with the spirit of our legislation.
Machala v. State Compensation Comm'r, 109 W. Va. 413, 415-16, 155 S.E. 169, 170
(1930)See footnote 2
. And as this Court noted in an earlier case that implicated the forerunner of W. Va.
Code § 23-1-15 (1923):
[O]ther expressions of both statutes unmistakably evince an intention to preclude a strict construction in avoidance of the purposes of these enactments. They are to be construed and enforced untrammeled by technicalities or restrictions except such as are provided in the acts themselves. For, according to section 44 of both acts, the administrator of the fund shall not be bound by the usual common-law or statutory rules of evidence, or by any technical or formal rules of procedure other than herein provided, but may make investigations in such manner as in his judgment is best calculated to sustain the substantial rights of the parties and to carry out justly and liberally the spirit of this act.
Culurides v. Ott, 78 W. Va. 696, 699, 90 S.E. 270,271(1916) (emphasis added).
This analysis led the Court in Culurides to conclude that: [The Workers'
Compensation Act] requir[es] the state compensation commissioner in administering the
workmen's compensation fund, to ascertain the substantial rights of the claimants in such
manner as will carry out justly and liberally the spirit of the act, unrestricted by technical and
formal rules of procedure . . . . Syllabus, in part, Culurides v. Ott, 78 W. Va. 696, 90 S.E.
270 (1916) (citation omitted); accord, Thacker v. Workers' Compensation Div., 207 W. Va.
241, 531 S.E.2d 66 (1999) (per curiam).
Not lost on us is the fact that no one could consider the authors of these earlier
opinions to be raging liberals by today's standards. They wrote at a time when life was
cheaper, injuries more frequent, and most modern tort concepts remained inchoate. Indeed,
the authors of Culurides v. Ott lived not only before the days of comparative negligence, but
before our laws even permitted women to vote. It would be bizarre in the extreme if in the
21st century we were to take any position less favorable to the injured worker than our
brethren of the early twentieth century were able to muster, shackled as they were by the
conservatism of their era.
Bearing this standard in mind, we consider the decisions of the WCAB and the
OOJ. The Administrative Law Judge at the OOJ found that Ms. Plummer failed to show
good cause as to why the Order Submitting the Protest should be set aside. The WCAB,
without specific comment, affirmed the decision of the OOJ.
The Legislature has empowered the OOJ to craft rules of practice and
procedure for the review of disputed claims:
Subject to the approval of the compensation programs performance council pursuant to subdivisions (b) and (c), section seven, article three, chapter twenty-one-a of this code, the office of judges shall from time to time promulgate rules of practice and procedure for the hearing and determination of all objections to findings or orders of the workers' compensation division pursuant to section one of this article. The office of judges shall not have the power to initiate or to promulgate legislative rules as that phrase is defined in article three, chapter twenty-nine-a of this code.
W. Va. Code § 23-5-8(e) (2000). The establishment of a time frame order is governed by just
such a rule, and thus we note that we are not considering in this case a jurisdictional time
limit explicitly imposed by statute.
We have previously considered how a claimant is affected when the claimant
misses the deadline to object to a decision, or to make appeal to the WCAB or this Court:
In Bailey [v. State Workmen's Compensation Comm'r, 170 W. Va. 771, 296 S.E.2d 901 (1982)], we recognized the inequities and hardships that occasionally occurred as a result of the thirty-day time periods for objections to the Commissioner's orders and for appeals to the Appeal Board and to this Court in workers' compensation cases. We concluded in Syllabus Point 1 of Bailey that our prior case law declaring these time periods to be mandatory and jurisdictional was unduly harsh. In its place, we established a rule of excusable neglect, which we outlined in Syllabus Point 2 of Bailey.
Thompson v. Workers' Compensation Comm'r., 180 W. Va. 720,722, 379 S.E.2d 770, 772
After finding that these deadlines, under the statutory framework of that time,
were not jurisdictional, the Court attempted to define what situations would allow a party to
miss a deadline: 'Excusable neglect seems to require a demonstration of good faith on the
part of the party seeking an enlargement [of time] and some reasonable basis for
noncompliance within the time specified in the rules. Absent a showing along these lines,
relief will be denied.' Bailey v. State Workmen's Compensation Comm'r, 170 W. Va. 771,
777 n. 8, 296 S.E.2d 901, 907 n. 8 (1982) (footnotes omitted) (quoting 4A Charles A. Wright
& Arthur R. Miller, Federal Practice and Procedure: Civil § 1165 (1969)).
However, as more recent cases illustrate, legislative response essentially
overruled our holding in Bailey:
We recognized in Fucillo v. Workers' Compensation Comm'r, 180 W. Va. 595, 378 S.E.2d 637 (1988), that the 1986 legislative amendments to the workers' compensation statute regarding filings and objections were designed to alter our holding in Bailey v. State Workmen's Compensation Comm'r, 170 W. Va. 771, 296 S.E.2d 901 (1982), and stated that the legislative amendments are limited to cases arising after the effective date of the amendments, i.e., March 7, 1986.
Thompson v. Workers' Compensation Com'r., 180 W. Va. 720, 722, 379 S.E.2d 770, 772
(1989). We mention Bailey and its progeny only to differentiate those cases where the
dispute centered on explicit statutory deadlines from the instant case, which concerns an
internal rule of practice and procedure.
When we examine the procedural rule that was in place at the time Ms.
Plummer attempted to present her evidence in July of 1998, we see that the Administrative
Law Judge that heard the case had the discretion to allow such evidence after the expiration
of the time frame:
Any requests for extension of time, in the absence of a showing of good cause, must be made not less than thirty (30) days prior to the expiration of the time period which the moving party seeks to expand. Such requests shall set forth the reasons the expansion of time is necessary and shall include a statement of the efforts the party has made to comply with the Time Frame Order. The failure to offer evidence in compliance with any Time Frame Order or extension thereof may result in the claim being submitted insofar as that party is concerned based on the evidence in the record at that point in time.
93 W. Va. C.S.R. § 1-2.9(b) (1992) (emphasis added).See footnote 3 3 The clear implication of the phrase in the absence of a showing of good cause is that the OOJ need not refuse a request for an extension of time made after the deadline if the party requesting the extension has made a showing of good cause for the delay.
It is important to note again that this rule is not a statutory rule, and our
interpretation of it must be guided by the overall purposes of the Act:
Whenever an application for compensation, based on an apparently meritorious claim, seems sufficient and regular, and indicates an intention on the part of the claimant or those acting for and on his behalf to assert such claim and demand contribution out of the fund set apart for that purpose, as in this case, it ought not to be defeated by a strict adherence to rules of procedure not expressed in the statute, although formulated pursuant to its authorization. Certainly, such defeasance should not be permitted under a statute which in terms requires a construction according to equitable principles, free and untrammeled by formal and technical rules of procedure.
Culurides v. Ott, 78 W. Va. 696, 701, 90 S.E. 270, 272 (1916). The passage of time
notwithstanding, this logic still applies. Thus we hold that the Office of Judges of the
Workers' Compensation Division must accept and consider evidence submitted by a claimant
after the expiration of a time frame order, provided that the claimant has shown good cause
for the delay.
Ms. Plummer, by counsel, explained in a letter dated July 24, 1998, her reasons
for not complying with the time frame order. She had applied for, and eventually won, social
security benefits because her sensitivity to fumes made it impossible for her to return to
work. Because she had private disability insurance, most, if not all, of those benefits from
the Social Security Administration were paid to her private insurance carrier in subrogation.
Ms. Plummer or her counsel believed that any workers' compensation benefits might also be
entirely subrogated to the insurance company. The firm representing Ms. Plummer explained
that they felt they had a duty to determine the economic benefit to Ms. Plummer if she were
to prevail in her workers' compensation claim before proceeding and perhaps incurring costs
chargeable to Ms. Plummer.
We feel that, in the light of our liberal interpretation of the workers'
compensation law, Ms. Plummer established good cause for the delay in her case.
that the OOJ erred by failing to find good cause to extend the time frame order to permit
the introduction of additional evidence, and that the WCAB erred in its affirmation of the
Accordingly, we reverse the decision of the WCAB and the OOJ, and remand this
case to the OOJ for proceedings consistent with this opinion.
For the reasons stated, the order of the Workers' Compensation Appeal Board
is reversed and remanded for further proceedings consistent with this opinion.
Footnote: 1 1We have explained, with the help of a Wisconsin court, that the Legislature enacted our workers' compensation law in order to internalize the societal costs of employee injuries to the benefit of employees, employers, and the public at large. Just as it was to no one's benefit to allow injured workers to languish uncompensated, it was equally harmful to saddle industry with a constant barrage of lawsuits for each and every negligent workplace injury:
The courts should fully appreciate that and be imbued with and
guided by the manifest intent of the law to eradicate, utterly, the
injustice to employers and employees, and the public as well, of
the old system, and to substitute in its place an entirely new one
based on the highest conception of man's humanity to man and
obligation to industry upon which all depend; recognizing the
aggregate of its attending accidents as an element of cost to be
liquidated and balanced in money in the course of
consumption-a system dealing with employees, employers, and
the public as necessarily mutual participants in bearing the
burdens of such accidents, displacing the one dealing only with
the class of injuries happening through inadvertent failure,
without real moral turpitude, to exercise average human care,
and placing employee and employer, whose interests are
economically the same, in the false position of adversaries, to
the misfortune of both and the public, intensified by opportunity
for those concerned as judicial assistants to profit by such
misfortunes. Most lamentable it will be, if this new system-so
freighted with hopes for the minimizing of human burdens and
their equitable distribution-shall not endure and be perfected to
the best that human wisdom can attain.
McVey v. Chesapeake & Potomac Telephone Co., 103 W. Va. 519, 522-3, 138 S.E. 97, 98 (1927) (quoting Milwaukee v. Miller, 154 Wis. 652, 144 N.W. 188 (1913)).
2The Court continued in
Should not section 44 of our act be so read? [Now W. Va. Code
§ 23-1-15] I think that the statute is significant as revealing the
method of interpretation which must be applied if the social
benefits which the law was designed to promote are to be
substantially realized. We have here not only the explicit
sanction for a departure from the common law rules of proof but
a direct legislative command that the commissioner shall not be
bound by comon [sic] law or statutory rules of evidence.
Machala v. State Compensation Comm'r, 109 W. Va. 413, 416, 155 S.E. 169, 170 (1930) (citation omitted).
3While the administrative rules changed somewhat in 1999, after the OOJ issued a
final decision on September 14, 1998, the new rule gives the latitude to extend a time frame,
Time Frame Orders. A Time Frame Order shall set forth the
sequence in which evidence shall be presented by the parties and
the time periods within which such evidence shall be presented.
A Time Frame Order may include such other matters as deemed
appropriate by the Chief Administrative Law Judge or his/her
designee. A Time Frame Order may be modified, amended or
extended at the request of a party, but only for good cause
shown, except that the Office of Judges may modify or amend
a Time Frame Order without such a request for appropriate
administrative purposes. A request for modification,
amendment or extension must be in writing and must be made
no later than ten (10) days prior to the expiration of the existing
Time Frame Order or the time period which the moving party
seeks to expand. Any request for an expansion of time must set
forth the reason an expansion is necessary and shall include a
statement of the efforts the party has made to comply with the
Time Frame Order. The Office of Judges shall issue guidelines
for determining good cause. Such guidelines are not intended
to be procedural rules, and may be amended from time to time
as deemed necessary.
93 W. Va. C.S.R. § 1-2.3(h) (1999).