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Davis, J., concurring, joined by Chief Justice Maynard:
In this proceeding, the majority opinion has upheld the application of various amendments to the workers' compensation statutes as they applied to the parties before the Court in these consolidated actions. Let me be clear, I concur in the result reached by the majority opinion in each of these cases. However, I reach my conclusions as to all but one of the issues presented based upon different reasoning than that used in the majority opinion. For this reason, I concur and write separately to explain my viewpoint. As to the one issue for which I agree with the majority opinion's rationale, I write separately to elaborate on that rationale. In this concurrence, I address certain important points that have been brought to light, though perhaps not thoroughly discussed, in the majority opinion. I will first discuss the meaning of the term award, which is found in several of the amended statutes stating that they shall be applied to all awards made on and after the effective date of the amendment and reenactment of this section . . . . (See footnote 1) I will then address the Commission's regulation requiring that certain evaluation reports from physicians examining PPD claimants be acted upon within fifteen working days from the date of the receipt, (See footnote 2) and I will conclude by elaborating on the majority opinion's discussion of the requirement for detailed findings under W. Va. Code § 23-5-12(c)(1) (2003) (Spec. Supp. 2003).
[T]he Division has chosen to define award to include any decision on any issue by the Division _ whether that decision is favorable to the claimant or not. Hence, if the Division issued an order denying a claimant relief on an issue, the Division contends that the order is an award under [the 2003 amendments].
Maj. op. at 20. To justify the position of the Division, the majority opinion notes that this
definition comports with one sense of the term award as defined in the 5th edition of
Black's Law Dictionary.
(See footnote 6)
The majority goes on, however, to acknowledge that this Court has
recognized an alternate definition of the term that only an 'action of the State Compensation
Commissioner and of the Workmen's Compensation Appeal Board, in allowance of a claim,
[is] an award'. Maj. op. at 21 n.12. Ultimately, though, the majority adopted the meaning
of the term award that it, correctly or not, attributes to the Commission, that an award is anydecision on any issue by the Division _ whether that decision is favorable to the claimant or not. Should
the Commission and/or the Legislature disagree
with this Court's interpretation of the term award as accepted in the majority opinion, then I urge them to act quickly to
define this most important term.
(See footnote 7)
Turning to the cases at hand, I will now show why it was not necessary
to resolve the meaning of the term award to achieve their resolution. To understand this
analysis, it must be clear that, unquestionably, the meaning of an award would constitute
a decision that grants benefits to a claimant. Thus, the uncertainty of whether or not a
decision is an award arises only where the decision in question is one that is unfavorable
to the claimant; that is, one that does not grant benefits. None of the cases before the Court
in these consolidated actions involved such a circumstance.
1. Wampler Foods. The case presented by Wampler Foods centered
upon conduct by the Appeal Board. In that case, the Division issued an order on October 8,
2001, finding the claimant's injury was not compensable. On December 4, 2002, the Office
of Judges reversed the Division's order and ruled that the claimant's injury was compensable.
The Appeal Board subsequently issued an order on July 15, 2003, affirming the Office of
Judges' decision. Because the Appeal Board's order was issued after the July 1, 2003,
effective date of the amendments to the workers' compensation statutes, Wampler Foods
argued that the Appeal Board's review had to comply with two specific amendments to the
(See footnote 8)
One of the amended statutes, W. Va. Code § 23-4-1g,
(See footnote 9)
pertains to the weighing of
evidence, or the rule of liberality, and was made to apply to all awards made on or after the
effective date of the amendment and reenactment of this section[.]
(See footnote 10)
I agree with the
majority's ultimate disposition of the application of the rule of liberality. I write separately
merely because I would have decided the issue on different grounds.
Wampler Foods contends that the Appeal Board committed reversible error because the Legislature abolished the rule of liberality in 2003 pursuant to W. Va. Code § 23-4-1g (2003) (Spec. Supp. 2003) (See footnote 11) and W. Va. Code § 23-1-1(b) (2003) (Spec. Supp. 2003). (See footnote 12) The majority opinion concluded that it was proper for the Appeal Board to apply the rule of liberality because
[t]he appellee presented evidence of her work- related injury, to both the Division and the Office of Judges, prior to July 1, 2003 with the understanding that the evidence would be examined in light of the liberality rule. To adopt the appellant's position and then hold the appellee to a theoretically different evidentiary standard at the appellate level would, without a doubt, violate the substantive (and likely procedural) due process rights of the appellee.
Maj. op. at 26-27. Contrary to the reasoning of the majority, I believe this is a red-herring assignment of error that has no merit.
The order issued by the Appeal Board, stated the following:
[We have] evaluated the decision of the Office of Judges in light of its manner of applying, or misapplying, the liberality rule and in light of the standard of review contained in West Virginia Code § 23-5-12, as well as the applicable statutory language as interpreted by the West Virginia Supreme Court of Appeals.
Clearly the Appeal Board did not say that it was applying the rule of liberality_as contended by Wampler Foods. Instead, the order stated that it merely reviewed the decision of the Office of Judges to determine the manner in which the Office of Judges had applied or misapplied the rule of liberality. The Appeal Board was obligated to determine whether the Office of Judges had correctly applied the law that was in place when the Office of Judges rendered its decision. The Appeal Board found that the Office of Judges had not misapplied the rule of liberality. (See footnote 13) Consequently, Wampler's contention that, instead, the Appeal Board had improperly applied the liberality rule is an incorrect interpretation of the proceedings underlying its appeal and, thus, is without merit. Thus, the definition of the term award was irrelevant to the resolution of this issue. (See footnote 14)
2. Claimant Charles Thompson. Charles Thompson (hereinafter Mr. Thompson) was awarded 6% PPD by the Division on July 24, 2003; however, the benefits were incorrectly calculated under the law in place prior to the 2003 amendments. Subsequent to issuing the award, Mr. Thompson was informed by the Division that his benefits would be reduced according to the new standard enacted by the Legislature, effective July 1, 2003, in W. Va. Code § 23-4-6(e)(1) (2003) (Spec. Supp. 2003). (See footnote 15) Mr. Thompson filed a petition with this Court seeking a writ of prohibition that would require the Division to pay him PPD benefits under the law in place when he was injured. (See footnote 16) There is no question that the July 24, 2003, order is the determinative order with respect to Mr. Thompson's claim.
The issue raised by Mr. Thompson was resolved in Syllabus point 8 of State ex rel. ACF Industries, Inc. v. Vieweg, 204 W. Va. 525, 514 S.E.2d 176 (1999):
When an employee, who has been injured in the course of and as a result of his/her employment, applies for workers' compensation benefits in the form of a permanent total disability (PTD)[, or a permanent partial disability (PPD),] award, the employee's application for such compensation is governed by the statutory, regulatory, and common law as it existed on the date of the employee's injury or last exposure when there is no definite expression of legislative intent defining the law by which the employee's application should be governed.
Under ACF, this Court is obligated to defer to legislative enactments changing workers'
compensation benefits laws when the Legislature has made its intent clear. It is quite clear
from a review of W. Va. Code § 23-4-6(e)(1),
(See footnote 17)
that the Legislature intended for this
provision to apply to Mr. Thompson's 6% PPD award. The award, which is undisputedly
the determinative order with respect to judging which law to apply, was not made until after
July 1, 2003.
(See footnote 18)
3. Yoakum Claimants. In the final case presented to the Court, eight claimants sought a writ of mandamus to require the Division to apply the PPD benefits statute that was in place at the time of their injuries and/or evaluations. (See footnote 19) The orders affecting all eight claimants were issued after July 1, 2003. Neither the claimants nor the Division argued in their briefs that resolution of this issue required a determination of what constitutes an award. This simply was not an issue, as far as the parties were concerned, because all of the claimants received an award entitling them to benefits. (See footnote 20)
Having established that is was not necessary to expressly address the meaning of the term award, I move to my second point of concern, the majority opinion's interpretation of W. Va. C.S.R. § 85-6-4.5(a).
The regulation in question provides as follows:
Permanent disability evaluation reports received from physicians to whom claimants have been referred by the Commissioner in claims based upon injuries and occupational diseases other than occupational pneumoconiosis shall be acted upon within fifteen (15) working days from the date of receipt in the Fund.
W. Va. C.S.R. § 85-6-4.5(a). In its brief, the Division contends that the claimants have
misinterpreted the regulation. The Division argued that the regulation does not require it to
render a decision within fifteen days, but rather, merely requires that medical evidence be
acted upon within fifteen days. Further, the Division pointed out in its brief that, for all
practical purposes, it is impossible to render a decision in all cases within fifteen days.
The gist of the Division's argument, which was completely ignored by
the majority opinion, is that when a PPD evaluation report is received, various steps must be
taken by the Commission before any PPD benefits can be awarded. For instance, such
evaluation reports are routinely sent to the Commission's Office of Medical Services for
review to determine if the rating physician complied with the American Medical
Association's guidelines on impairment ratings. Also, the Commission must work with the
appropriate state agency to determine if any of the PPD award is payable in satisfaction of
an order for child or spousal support entered pursuant to [W. Va. Code § 48-1-1, et seq.].
W. Va. Code § 23-4-18. In addition, the Commission must determine if the claimant
received an advance on his or her PPD award in the form of nonawarded partial benefits
and must make a corresponding offset in the PPD award, if appropriate. See W. Va. Code
§§ 23-4-7a(c)(2) and 23-4-7a(e) (2003) (Spec. Supp. 2003). These are some of the various
actions that must be taken by the Commission before the PPD award is made, and nothing
in the regulation relied upon requires that the actual award be made within the fifteen (15)
It is clear to me that the Division's interpretation of its own rule is
sound. In light of the majority's implicit rejection of the Division's interpretation of the
regulation, I believe the Division should go through the necessary legal procedures to amend
the regulation to make clear the meaning of the regulation, and I urge it to take this action
Accordingly, while I concur in the majority's decision to deny the writ
of mandamus as to this issue insofar as I believe the Division's interpretation of the
regulation is logical, I would have denied the writ based upon the conclusion that the
claimants' attempt to rely on W. Va. C.S.R. § 85-6-4.5(a) was without merit. See Cookman
Realty Group, Inc. v. Taylor, 211 W. Va. 407, 417, 566 S.E.2d 294, 304 (2002) (Per Curiam)
(Starcher, J., concurring) (The agency's construction [of its own regulation], while not
controlling upon the courts, nevertheless constitutes a body of experience and informed
judgment to which a reviewing court should properly resort for guidance.).
[t]he record presented to the Appeal Board and this Court fully supports the compensability conclusion reached by the Office of Judges, and application of W. Va. Code, 23-5-12  to the instant case would serve no purpose other than to further delay a final resolution and to waste administrative, judicial, and party resources.
Maj. op. at 27. I write separately to explain the legal foundation for this conclusion.
Prior to the enactment of W. Va. Code § 23-5-12(c)(1) in 2003, neither
this Court nor any statute required the Appeal Board to issue findings of fact and conclusions
of law when it merely affirmed a decision of the Office of Judges. However, in Syllabus
point 5 of Conley v. Workers' Compensation Division, 199 W. Va. 196, 483 S.E.2d 542
(1997), we held that when the Workers' Compensation Appeal Board issues an order that
is not an affirmance of a ruling by the Workers' Compensation Office of Judges, it must set
out adequate findings that support its decision.
It is clear that W. Va. Code § 23-5-12(c)(1) has modified the law by also
requiring the Appeal Board to issue findings of fact and conclusions of law when it affirms
a decision. Insofar as W. Va. Code § 23-5-12(c)(1) is a procedural change that assists this
Court when it reviews challenges to decisions made by the Appeal Board, I believe the
Appeal Board's failure to comply with the statute was harmless error. I take this position for
two reasons. First, the Appeal Board's affirmance of the Office of Judges' order meant that
it adopted the findings of fact and conclusions of law made by the Office of Judges. Second,
in this Court's review of the Appeal Board's order, we are also obligated to examine the
order issued by the Office of Judges. Therefore, to the extent that the order of the Office of
Judges adequately set out findings of fact and conclusions of law, we know the basis of the
Appeal Board's affirmance. See Adkins v. K-Mart Corp., 204 W. Va. 215, 220, 511 S.E.2d
840, 845 (1998) (Per Curiam) (recognizing that the circuit court's summary judgment order
did not set out the required findings of fact and conclusions of law, but refusing to reverse
the case because of such failure).
To be clear, I believe the Appeal Board should have issued findings of
fact and conclusions of law, as now required by W. Va. Code § 23-5-12(c)(1). However, in
this instance I am in full agreement with the majority's conclusion that the error was
harmless. See Jennings v. Smith, 165 W. Va. 791, 792, 272 S.E.2d 229, 230 (1980) (Per
Curiam) (Upon careful consideration of the record, briefs, and oral argument presented on
this appeal we affirm, concluding that any error or defect in the proceedings below was . . .
In view of the foregoing, I respectfully concur. I am authorized to state that Chief Justice Maynard joins in this concurring opinion.