5. A statutory provision which is clear and unambiguous and plainly
expresses the legislative intent will not be interpreted by the courts but will be given full
force and effect. Syllabus point 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).
6. A statute that is ambiguous must be construed before it can be applied. Syllabus point 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992).
7. The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature. Syllabus point 1, Smith v. State Workmen's Compensation Commissioner, 159 W. Va. 108, 219 S.E.2d 361 (1975).
8. A cardinal rule of statutory construction is that significance and effect must, if possible, be given to every section, clause, word or part of the statute. Syllabus point 3, Meadows v. Wal-Mart Stores, Inc., 207 W. Va. 203, 530 S.E.2d 676 (1999).
9. W. Va. Code § 23-5-16 (1995) (Repl. Vol. 2005) does not authorize an attorney to charge a fee based upon the settlement of medical benefits in connection with a workers' compensation claim.
Davis, Justice: (See footnote 1)
In this appeal from an unfavorable summary judgment ruling in a declaratory judgment action, lawyer Jonathan C. Bowman, plaintiff below and appellant herein (hereinafter referred to as Mr. Bowman), asks this Court to resolve whether a lawyer who obtains a compromise and settlement of a workers' compensation claim for medical benefits under W. Va. Code § 23-5-7 (2005) (Repl. Vol. 2005) may collect from his or her client an attorney's fee of not more than twenty percent based upon the amount of the settlement for the statutory maximum period of 208 weeks, pursuant to W. Va. Code § 23-5-16 (1995) (Repl. Vol. 2005). Based upon the briefs submitted on appeal, the parties' oral arguments, and the relevant law, we concluded that an attorney may not charge a fee based upon the settlement of medical benefits in a workers' compensation claim.
Well, I mean, I think what I'm being asked to do, though, is to read something into a statute that's simply not there.
In fact, it's to the contrary, and I really do believe that the
legislative arena is the place where this issue ought to be
addressed as to issues of public policy. That's what they do day
in and day out.
You know, I'm not unsympathetic to the kind of dilemma that you're in, but I believe that the statute is very clear.
So what I'm going to do is I'm going to deny the motion for summary judgement and enter it as a final order and if you want to take any appeal of that to the Supreme Court, then you know, I welcome that.
Following the hearing, by final order entered October 22, 2007, the Circuit Court of
Kanawha County denied Kasserman & Bowman's motion for summary judgment. In
addition, the circuit court expressly ruled that West Virginia Code § 23-5-16 does not
permit a 20% contingency fee to be awarded upon the settlement of medical benefits in a
[w]orkers' [c]ompensation claim, which ruling effectively granted summary judgment in
favor of the Insurance Commissioner. (See footnote 9)
'[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963). Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W. Va. 706, 421 S.E.2d 247 (1992).
Syl. pt. 2, Painter, 192 W. Va. 189, 451 S.E.2d 755. Furthermore, [t]he circuit court's
function at the summary judgment stage is not to weigh the evidence and determine the truth
of the matter, but is to determine whether there is a genuine issue for trial. Syl. pt. 3, id.
Finally, we note that the issue raised in this appeal presents a legal question. Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review. Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
No attorney's fee in excess of twenty percent of any
award granted shall be charged or received by an attorney for a
claimant or dependent. In no case shall the fee received by the
attorney of such claimant or dependent be in excess of twenty
percent of the benefits to be paid during a period of two hundred
eight weeks. The interest on disability or dependent benefits as
provided for in this chapter shall not be considered as part of the
award in determining any such attorney's fee. However, any
contract entered into in excess of twenty percent of the benefits
to be paid during a period of two hundred eight weeks, as herein
provided, shall be unlawful and unenforceable as contrary to the
public policy of this state and any fee charged or received by an
attorney in violation thereof shall be deemed an unlawful
practice and render the attorney subject to disciplinary action.
W. Va. Code § 23-5-16.
Mr. Bowman contends that W. Va. Code § 23-5-16 is ambiguous and should be interpreted by this Court to allow attorneys to collect a fee of twenty-percent, up to the statutory maximum period of 208 weeks, based upon the amount of a settlement of medical benefits. (See footnote 13) Mr. Bowman notes that there is no statute or rule addressing whether lawyers may charge a fee in connection with their efforts in obtaining a settlement of medical benefits. (See footnote 14) The Insurance Commissioner asserts, on the other hand, that this Court has consistently ruled that the maximum attorney's fee to be charged pursuant to W. Va. Code § 23-5-16 may not
exceed twenty percent of the benefits to be paid during a period of 208 weeks. (See footnote 15) She contends that there is no reason to believe that the Legislature intended to allow an additional award of attorney's fees for the settlement of medical benefits or that the omission of additional attorney's fees for settlement of medical benefits was a legislative oversight that should be corrected by this Court. We agree.
It is well established that [a] statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect. Syl. pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951). Accord Syl. pt. 2, State ex rel. Daye v. McBride, 222 W. Va. 17, 658 S.E.2d 547 (2007) ('Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation.' Syllabus Point 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970).). On the other hand, [a] statute that is ambiguous must be construed before it can be applied. Syl. pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992). Accord, Syl. pt. 1, Ohio County Comm'n v. Manchin, 171 W. Va. 552, 301 S.E.2d 183 (1983) (Judicial interpretation of a statute is warranted only if the statute is ambiguous . . . .).
The statute in question, W. Va. Code § 23-6-16, is conspicuously silent with respect to whether it permits an attorney to collect a fee upon the settlement of medical benefits. Therefore, with respect to this particular question, the statute is ambiguous and must be construed. In this regard, we are guided by the well-settled principle that [t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature. Syllabus point 1, Smith v. State Workmen's Comp. Comm'r, 159 W. Va. 108, 219 S.E.2d 361 (1975).
Arguing that we should construe W. Va. Code § 23-5-16 to allow attorneys to collect a fee upon the settlement of medical benefits, Mr. Bowman relies on this Court's prior decision in Committee on Legal Ethics v. Coleman, 180 W. Va. 493, 377 S.E.2d 485 (1988). The Coleman Court discussed the meaning of the term award as used in W. Va. Code § 23-5-16, (See footnote 16) and cited favorably the Delaware case of Willingham v. Kral Music, Inc., 505 A.2d 34 (Del. Super. Ct. 1985). According to Coleman, the Willingham Court held that an 'award of compensation,' upon which a workers' compensation claimant's attorney's fee is based, refers to any 'favorable change of position or benefit' as the result of a final administrative decision. Coleman, 180 W. Va. at 497, 377 S.E.2d at 489 (quoting Willingham, 505 A.2d at 36) (emphasis added). The Coleman Court also observed that,
[i]n State ex rel. Magun v. Sharp, 143 W. Va. 594, 598, 103
S.E.2d 792, 795 (1958), the Court, quoting Black's Law
Dictionary, defined an award as '[t]he decision or
determination rendered by arbitrators or commissioners, or other
private or extrajudicial deciders, upon a controversy submitted
to them; also the writing or document embodying such
180 W. Va. at 496, 377 S.E.2d at 488.
We perceive Mr. Bowman's argument on this point to be that, in accordance with the definition of award set out in Coleman, a settlement of medical benefits should fall within the meaning of the term any award as used in W. Va. Code § 23-5-16 to authorize an attorney to charge a fee not exceeding twenty percent of any award granted . . . . (Emphasis added). We decline to so extend our decision in Coleman. First, we note that the definition of award set out in Coleman was dicta. Furthermore, Coleman
is distinguishable from this case in that it did not address attorney fees in relation to the settlement of medical benefits. (See footnote 17) Coleman was a lawyer disciplinary case addressing whether a lawyer who had obtained one permanent total disability (hereinafter referred to as PTD) award for his client could charge two fees in relation to that award: one fee for the portion of the award that represented accrued PTD benefits, and a separate fee for future benefits. The Coleman Court concluded that the two fees were not permitted by W. Va. Code § 23-5- 16. Thus, Coleman is not instructive to our decision in this case.
Furthermore, Mr. Bowman's argument fails to adequately address the limitation contained in W. Va. Code § 23-5-16 that no fee shall exceed twenty percent of the benefits to be paid during a period of two hundred eight weeks. (Emphasis added). Mr. Bowman concedes that any attempt to apply W. Va. Code § 23-5-16 to allow a fee for the settlement of medical benefits would be subject to the 208 week provision, yet he fails to provide any explanation as to how this might be accomplished insofar as a settlement of medical benefits is not broken down into weekly benefit payments. Importantly, [a] cardinal rule of statutory construction is that significance and effect must, if possible, be given to every section, clause, word or part of the statute. Syl. pt. 3, Meadows v. Wal-Mart Stores, Inc., 207 W. Va. 203, 530 S.E.2d 676 (1999). Thus, the 208 week provision of W. Va. Code § 23-5-16 must be given effect. The fact that the settlement of medical benefits fails to fit within the framework of the 208 week provision of W. Va. Code § 23-5-16 is strong evidence that the Legislature did not intend for the statute to be applied to such settlements.
Finally, Mr. Bowman argues that there are public policy reasons for allowing the attorney's fee he seeks. He claims that allowing the fee would promote settlement of workers' compensation claims. Conversely, he suggests that not allowing the fee would discourage settlements, especially since a significant amount of legal work, in the form of legal review, analysis, and negotiation, is involved in obtaining settlements of medical benefits. In response, the Commissioner argues that attorneys have routinely represented clients with regard to disputed medical issues in workers' compensation litigation with the understanding that a fee could not be charged for successfully litigating those issues. (See footnote 18) The Insurance Commissioner points out that the dollars paid out in settlement of a claim for medical benefits must be used by the claimant for future medical treatment, and Medicare approval of the settlement is generally required. In order to obtain Medicare approval, Medicare must agree that the settlement amount is sufficient to pay for the anticipated future medical treatment. According to the Commissioner, if the attorney then takes twenty percent, the claimant will not be left with enough money to pay for future medical services. Finally, the Insurance Commissioner notes that the significant work of an attorney is in the litigation of medical benefits issues, not in settlement of them. She reasons that to permit an attorney to charge twenty percent of the settlement of future medical benefits in a workers' compensation claim, without more, would be a windfall for attorneys and a hardship for claimants.
We believe the foregoing policy arguments are more appropriately directed to the Legislature. We have carefully reviewed W. Va. Code § 23-5-16 and find that it simply contains no indication that the Legislature intended to allow attorneys to collect a twenty
percent contingent fee on the settlement of medical benefits. This Court is not at liberty to read into a statute that which simply is not there.
It is not the province of the courts to make or supervise legislation, and a statute may not, under the guise of interpretation, be modified, revised, amended, distorted, remodeled, or rewritten, Subcarrier Communications, Inc. v. Nield, 218 W. Va. 292, 299 n. 10, 624 S.E.2d 729, 736 n. 10 (2005) (internal quotations and citations omitted). If the Legislature has promulgated statutes to govern a specific situation yet is silent as to other related but unanticipated corresponding situations, it is for the Legislature to ultimately determine how its enactments should apply to the latter scenarios.
Soulsby v. Soulsby, 222 W. Va. 236, ___, 664 S.E.2d 121, 132 (2008). See also Banker v.
Banker, 196 W. Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996) (It is not for this Court
arbitrarily to read into [a statute] that which it does not say. Just as courts are not to eliminate
through judicial interpretation words that were purposely included, we are obliged not to add
to statutes something the Legislature purposely omitted. (citing Bullman v. D & R Lumber
Company, 195 W. Va. 129, 464 S.E.2d 771 (1995); Donley v. Bracken, 192 W. Va. 383, 452
S.E.2d 699 (1994)); Syl. pt. 1, Consumer Advocate Div. v. Public Serv. Comm'n, 182 W. Va.
152, 386 S.E.2d 650 (1989) (A statute, or an administrative rule, may not, under the guise
of 'interpretation,' be modified, revised, amended or rewritten.). Indeed, 'the judiciary
may not sit as a superlegislature to judge the wisdom or desirability of legislative policy
determinations made in areas that neither affect fundamental rights nor proceed along suspect
lines.' State ex rel. Blankenship v. Richardson, 196 W .Va. 726, 735, 474 S.E.2d 906, 915
(1996) (quoting Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684, 692, 408 S.E.2d 634,
Based upon the foregoing analysis, we now hold that W. Va. Code § 23-5-16 (1995) (Repl. Vol. 2005) does not authorize an attorney to charge a fee based upon the settlement of medical benefits in connection with a workers' compensation claim. Applying this holding to the instant case, we find the circuit court correctly denied summary judgment to Mr. Bowman on the issue of attorney's fees, and properly granted summary judgment in favor of the Insurance Commissioner.