Maynard, Justice, concurring in part, and dissenting in part:
I concur with the decisions
in the instant cases. I believe that Mr. Lambert's PTD award should have an
earlier onset date. However, I have serious concerns with regard to the new
law created by the majority in Syllabus Points 3 and 4.
First, I do not agree with
new Syllabus Point 4. Because of the substantial differences between social
security disability benefits and workers' compensation awards, I believe that
the fact that a workers' compensation claimant has been awarded social security
disability benefits should not be accorded any greater weight than other evidence
in PTD onset date cases.
Second, I would have found
a way to award Mr. Lambert a PTD award as of the date of his below-the-knee
amputation without revisiting and refining Miracle and Young. By
providing that the beginning for a PTD award should be based on the date on
which medical or other expert evidence indicated that a permanent total disability
existed, the Miracle/Young rule inserted an element of certainty and supplied
a much-needed benchmark in the selection of PTD onset dates. In contrast,
the new rule articulated in Syllabus Point 3 of the majority opinion makes
the selection of PTD onset dates a much more subjective and uncertain exercise.
Recently, I expressed my
conviction that this Court regularly disregards applicable standards of review
in order to find for claimants in workers' compensation cases. See Martin
v. Workers' Compensation Div., 210 W.Va. 270, 557 S.E.2d 324 (2001) (Maynard,
J., dissenting). I fear that the subjective nature of the new totality-of-the-evidence
rule announced by the majority will allow that practice to continue.
In conclusion, I concur with the Court's resolution of the instant cases, but I dissent to the newly-formulated law. Accordingly, I concur in part, and dissent in part.