*1 Brown, Re to the law. See In commitment (“A at 572 at 273 S.E.2d MARTIN, Juanita Widow of Dana inquiry appli- is important area of further Martin, Deceased, Appellant, date of activity and conduct since the cant’s disbarment, objective it is his since good must that character be record
judged.”). WORKERS’ COMPENSATION addressing Mr. McMillian’s concern AND DIVISION W-P COAL holding higher him to a this Court is COMPANY, Appellees. lawyers, I than we hold disbarred standard No. 28516. is that Mr. McMillian different note seeking applicants admission or most other Supreme Appeals practice to the law. His mis- reinstatement Virginia. West youthful not of a conduct was the result indiscretion, but act of a rather Submitted Oct. 2001. certainly law officer who former enforcement should have known better. In Re See Decided Nov. 2001. Brown, at 166 W.Va. at Dissenting Opinion of Justice (“Another factor to on be considered rein- Maynard Dec. maturity experience statement is the and practitioner at the time of his disbar- youthful recognition that a ment —a inex- attorney may
perienced have blundered as a inexperience rather than as a result
result calculation.”).
of deliberate
Lawyers lawyers who those wish to be high
are held to standard because of the
unique position they society. hold in our throughout disciplinary in-
“Woven our cases attorneys
volving thought they
occupy special they position because are
actively administering legal involved in
system goal whose ultimate is the evenhand- justice. Integrity
ed administration of lawyer’s components
honor are critical of a duty as fair-
character sense of Brown,
ness.” In Re at By admitting
S.E.2d at 570. Mr. McMil- time,
lian practice of law at this we are
merely holding high him to stan- the same prac-
dard that we hold others who wish to Virginia.
tice law in West
Considering that Mr. the offenses McMilli- committed,
an law as former enforcement
officer, grateful should he this Court simply denying practice admission time, opposed making
law at this
explicit may holding practice that he never Virginia.
law in the State West
272 *3 Smith, Raymond Esq., Rundle Run-
S.F. & dle, Pineville, Appellant. Evans, Charleston, Esq., L.
Sandra Appellee Compensation Division. *4 Workers’ Albertson, Esq., Harold S. Albertson & Jones, Charleston, Appellee for W-P Coal Company.
McGRAW, Justice. Chief appeals Mrs. Juanita Martin a decision Compensation Appeal Board the Workers’ that affirmed a denial of her late husband’s disability award. claim for a total party a action was substituted as She Dana Martin. upon the death of her husband Martin’s Because we find that Mr. death appeal, and not affect the outcome of his does conclude that because we Office Compensation Ap- Judges and the Workers’ peal awarding permanent in not Board erred benefits, we reverse. total I.
BACKGROUND approximate Mr. Dana Martin worked for twenty years ly coal miner W-P Coal Virginia. As is Company in Southern West Martin occu Mi-. contracted often working in pational pneumoconiosis while mines, for which he submitted workers’ filing That 1987 compensation claim 1987. finding by in a Workers’ Com resulted that Mr. Martin suffered pensation Division permanent partial disabili percent from a 50 pneumoconiosis. Mr. ty occupational due to in his award sought Martin an increase 1994, application which filing another claim Division numbered 94-37387. injury occupa- Mr. Martin’s was Because Occupational pneumoconiosis, tional Board had to make deter- Pneumoconiosis award. an additional mination if he merited 1995, Occupational Pneu- March On subject findings, Mr. Martin ruled that review moconiosis Board permanent par- courts.” Barnett v. Workmen’s additional State not entitled to Com’r., Compensation beyond percent disability award the 50 tial (quoting Emmel v. already Mi*.Martin had received. award he Director, State to the appealed this decision Office (1965)). him, against issuing Judges, also ruled which 28,1998. a decision on October Also, we note that: ‘When the Work Undeterred, Martin took this Mr. decision Compensation Appeal ers’ Board reviews a Judges step in to the next of the Office of ruling from the Workers’ Of appeal lengthy process, the Workers’ Judges it fice of must do so under the stan (the Appeal “Appeal Board out in dard review set W. Va.Code 23-5- Board”). months, After several 12(b) (1995), and failure to do so will be Martin, issuing against Mr. Board also ruled Syl. pt. Conley reversible error.” v. Work affirming March an order on ers’ Judges. prior decision the Office pro S.E.2d 542 That code section step proceeded Martin to the final in the vides, pertinent part: Court, process, petition appeal to this reverse, [The vacate or modi- WCAB] April filed counsel on he fy the administra- order decision *5 petition, could act on the Before this Court judge rights if tive law the substantial Mi*. Martin on died November petitioner petitioners or have been appeal granted petition This his on prejudiced because the administrative law 16, 1999, granted his wife’s November judge’s findings are: request appellant in to be substituted as (1) statutory provisions; In violation of 20, 2000. case on December or (2) statutory authority excess of the II. jurisdiction or of the administrative law OF REVIEW STANDARD judge; or fact, question considering (3) If a “[i]n procedures; Made unlawful or most we show substantial deference to cases (4) law; by Affected other error of or findings Compen factual the Workers’ reliable, Clearly wrong in view the sation Board.” Plummer v. Workers’ probative and substantial on evidence Division, 209 W.Va. record; or the whole (2001). Indeed, 48 we have (6) Arbitrary capricious or or character- repeatedly that: will held “This Court by clearly ized or abuse discretion finding a of fact made reverse the Work unwarranted exercise discretion. Compensation Appeal men’s Board unless it 23-5-12(b) (1995). Bearing W. Va.Code appears proof upon ap from the which the mind, these various standards in we turn to peal finding plainly board that the acted the case before us. wrong.” Syllabus, Dunlap v. State Work Commissioner, men’s 152 III. (1968); Accord, 605 W.Va. S.E.2d Lewis, Rushman v. DISCUSSION (1984); Conley S.E.2d 426 v. Workers’ Com pensation A. The Effect of Mr. Martin’s Death petition appeal The initial in this case However, considering ques only wdien Martin concerned whether or not Mr. law, tion of we have different standard: was to an in his entitled increase findings appeal partial disability “[w]hile the fact of the award. will discuss that We so, they opinion, doing board mani are conclusive unless are issue but before we evidence, festly against weight the must another issue raised address board, legal appeal conclusions of the based Martin’s Mr. Martin demise. Because died claim resolu- That pertinent could reach a final section statute reads in before tion, may part: must examine how his we death the outcome of his claim.
have affected
(g)
claimant to
Should
whom has been
permanent partial
from
made
award die
proceeding,
Before
we reiterate
noncompensable injury,
un-
sickness
guide
considering a
principles that
us when
paid
paid
balance
such award shall
compensation
workers’
issue. “‘The Work
in this
defined
Compensation Law is
men’s
remedial
any;
chapter,
payment
if
to be made
nature,
given
and must be
a liberal construc
in the same installments that would have
accomplish
purpose
tion to
intended.’
Provided,
paid to
if living:
been
3, McVey
Syl. pt.
Chesapeake
Potomac
&
That no
be made
Co.,
Telephone
276 thority to his award benefits permit widow to receive would not law dependent award which widow of deceased em- additional Hercy Ferguson, him entitled.2 to relieve thought ployee, Board C. from the unfortunate her situation under consideration no the case now [I]n untimely death of has resulted from made” the date “been at had claimant. that date there her husband. death of the On order of the unreversed effect Ferguson v. State Workmen’s denying further benefits. commissioner Commissioner, 163 whom, at not The claimant was one (1968). It that in this seems S.E.2d death, had made an “been date his plati- “untimely was no mere death” award.” tude. Hughes v. State Hagy In the v. State Workman’s case Commissioner, essence, holding Hughes In Mr. died because (1979), Hagy Mr. had lost S.E.2d 906 decision,” “losing “winning deci- the later fingers his in an acci- several from left hand help to his sion” was no widow. Virginia. injured in dent in He was later an even more Draconian In with case Virginia and i-eceived for tem- West benefits to a widow holding, denied relief the Court disability porary total while his hand healed. days “too whose died mere ten husband degree maximum of re- reaching After early.” Ferguson v. Workmen’s State accident, covery opined his doctor Commissioner, 152 W.Va. partial percent permanent had a 50 he (1968), injured Mr. disability. Before the Commissioner made Ferguson by the then-called was examined regarding permanent par- final decision Board, found Silicosis Medical award, disability Mr. Hagy tial died. The perma- percent to a Board be entitled claim, and his Commissioner dismissed partial nent award. The Board appealed. widow Commissioner, forwarded this decision Citing to W. 23- forerunner Va.Code officially who made the award on June widow, against 4-6(g), the ruled Unfortunately, Ferguson died ten explaining: predicates right “This statute before, May days on 1967. The Court of the claimant’s to obtain the explained holding3 stating: initially having claimant on his remedies, Alleged provided rights and *7 permanent given partial been an award of statutes, by compensation the workmen’s disability. ‘unpaid phrase balance of The recognized granted by can not be clearly award’ con- such also indicates this statutory requirement courts. As the Hagy struction.” v. State Workmen’s Com- compensation a valid award of must be Commissioner, 198, pensation living claimant to made to the while entitle 201-02, 906, (1979). 255 908 S.E.2d unpaid his widow to receive the balance of case, Citing Ferguson in the Court such award has not been satisfied earlier case, already that a must power is without or au- found claimant won this Court have unpaid specific holding injury, payment 2. The to of the balance of a Court stated: disability permanent compen- partial award of A claimant who dies front sickness or noncom- 6(e), pensable injury pending appeal Chapter to Section sation under Article Compensation 23, Code, amended, Board Workmen’s award of as a valid Compensation an State order of the Commis- such must be the work- made not, denying sioner further to him is at benefits during men's commissioner death, "a to whom the time of his claimant claimant; lifetime of and if claimant such contemplated by award been made” has dependent dies before such award made his Code, 23-4-6(e) as amended. any part to of an widow not entitled receive Comm'r, Syl. pt. Hughes v. State during award which could have been made (1960). 145 W.Va. lifetime of tire claimant. Syl. Compen- pt. Ferguson In that v. State held: Workmen’s Commissioner, claimant, 163 S.E.2d sation W.Va. dependent To widow of a entide (1968). noncompensable who from sickness or a dies (or widower) and claimant’s death does not to recov- evaluation for a widow an award dependents, process. award His affect the Commission- “Ferguson requires er: therefore, disability ben- are entitled to the permanent an award of have made er shall efits. depen- disability partial before the at to the benefits are entitled receive dents Hagy v. Workmen’s State Va.Code, 23-4-6(g).” under W.
his death Commissioner, conclude Hagy in finished: “We (1979). below, The Court 906, 909 As we discuss S.E.2d claimant’s widow is Ferguson the that under in Hagy Court was error. we feel the partial permanent to not entitled holding Draconian Perhaps because of the benefits, claimant no un- since the received changes Ferguson, Legislature in made partial disability award scheduled compensation law so that a to the workers’ and died of causes unre- his lifetime Occupational Pneumoco- determination injury.” Hagy Work- lated to the State had force and effect as niosis Board the same Commissioner, men’s ruling by the Workers’ Com 906, 909 23-4-6(h) See, § missioner. W. Va.Code found to Two widows were be the However, Hagy did discuss the difference change in 23-4-6, of this the case beneficiaries subsection(g) § W. Va.Code between Comp. 23-4-6, (f), Charles v. State Workmen’s § subsection and W. Va.Code 285, 241 The body part. dealing with the loss of Subsec- purpose court noted: “The obvious read, Charles pertinent part: tion then© allow amendment was to compensable a claimant sustain a Should employee’s a deceased receive injury total loss which results ease, where, the internal as was often the bodily severance of members compensation procedure was so workmen’s subdivision, from sick- named die lengthy many claimants burdened injury noncompensable before the ness or final died before a Commissioner’s proper award for commissioner makes the Id., 287, 241 161 W.Va. at was made.” injury, commissioner shall make such (footnote omitted). S.E.2d at 818 dependents as such award to claimant’s any; chapter, pay- if defined recognized the While the Charles court same installments ment be made awarding dependents benefits unfairness paid to claimant that would have been managed outlive only when the Provided, living: if that no shall found it un- appeals process, the Court of such claimant be made to widow necessary of the earlier to reexamine liability remarriage, her and that this after change pro- in the statute cases because the of such claim- accrue the estate with in that case the relief vided the widows subject any debts ant and shall not be they requested. But Court made one of, charges against, such estate. It noted that W. Va. important observation. “provide[sj § for distribution Code 23-4-6 (1978).4 Hagy W. Va.Code 23-4-6© *8 employee to [his funds after death explained treatment de Court the different 289, 241 dependents.” Id. 161 W.Va. at her] two pendents receive under the subsections at 819. for further evidence: stems the need anticipated problem we provision A that apparent rationale for this is case The today that of v. Workmen’s bodily face Cole State that a severance of member Comm’r, 294, 273 subject Compensation un- 166 W.Va. specific to a scheduled award Va.Code, with Although dealt Cole The Commis- S.E.2d der W. 23-4-6©. statutory subsequent enactments easily the effect can thus determine the sioner upon previously filed ad- would have worker’s amount without the benefit of medical claim, very ques- opinion discussed the Consequently, there is no medical vice. claimant and shall not crue to the estate of such the subsection now reads: 4. The last sentence of "Provided, of, against, charges subject be to That no shall made to debts 23-4-6(0(1999). surviving spouse or her § of such claimant after his W. Va.Code such estate.” liability remarriage, ac- and that this shall not explaining In in defeating now consider. should not result an award. tion we Rather, Virginia approach focused on whether a claimant the better to West “is make pro- appeals possible had died before end the best medical estimate of the cess, suggested per- probable disability was the Court residual that would haps approach: employee not the best have remained if the had lived to complete healing period.” ques
[T]he rule often revolves around the
employee
tion of whether
the deceased
Id.6
“award”,
equivalent,
an
or the
received
Although
opinion
not at-
the Cole
does
his death. While the outcome of
before
cases,
tempt
clearly
to
it
overrule
line of
inquiry frequently
an
turns on statu
did
today
“[W]e
cast some doubt
them.
valuables,
jurisdictions
tory
most
hold that
question,
light
of Professor Larson’s ad-
filed,
if a claim has been
but no award is monition, Larson,
(1976),
§
58.40
the rather
death,
at
the death will
made
the time
approach
draconian and technical
down
laid
Larson,
not abate the claim.
Workman's
Hagy, supra,
an
“award” must be
Laiv, §
58.40
While
Id.,
prior
made
to death[.]”
166 W. Va. at
seems,
juncture,
Virginia
at this
West
301,
rivative benefits is
often addressed
Wingrove
claim. We ruled in
context of determinations on
require
the statute does not
a claimant
partial
According
awards.
have received “final award” before death
Larson,
Professor
the death of the claim-
family
eligible
order for his
to be
ant
receipt
before
award is made does not
unpaid
Specifically,
benefits.
disability impossible
prove
make
and we held:
5. The
cited
several cases from other states
We find no rational
basis
an inference that
support
proposition,
including,
"award,"
Reed v.
legislature,
when it used the term
Arizona,
Industrial Commission
104 Ariz.
right
meant to restrict the
of a widow
whose
(1969);
Department
6. In of this the Cole Court Washington cited a State case:
279 litigation hope If a claimant a that the claimant will Workers’ made, receiving case to whom an award dies die before a ever favorable deci- appealing subsequent while adverse deci- sion. award, concerning appeal sion case, This Wingrove’s was also true in Mr. proceed if had not as death occurred. particular history but because of the of Mr.
Any unpaid compensation awarded as a Wingrove’s claim, we did not have to face appeal, result of such an would have problems head-on the created this old line paid payable up been or to the claimant to Indeed, adopted logic of cases. we even death, the time of his or her shall not § our examining as own in W. 23-4- Va.Code claimant, accrue to the estate of but However, examination, 6(g).7 upon further payable dependents shall be to must we conclude that we were error. We claimant, dependents deceased if there theory espoused by now believe this at the time of death. fundamentally entire line cases is flawed. Syl. pt. Wingrove v. Workers’ § (g) Subsection of W. Va.Code 23-4-6 v., 538 Di S.E.2d 378 says nothing extinguishing a about claim (2000). upon the of a claimant. (g) death Subsection Wingrove, In recognized we that Mr. Win- merely describes how one should distribute delays adjudica- grove long had faced unpaid of an award balance the claim- if claim, tion and stated: above, (g) ant dies. As noted subsection award, By requiring not a final the effect merely “provide[s] distribution of for funds delays adjudicatory process in the employee after death of the [his her] case, long minimized. there were dependents.” Charles State Workmen’s delays adjudicatory process; in the a re- 285, 289, Comp. Judges view the Office of took almost (1978). Quite logically, one years. require four a final To cannot distribute an award unless that (Click justice” would not “further [v. award, fact, (g) exists. Thus subsection Click], id. [98 W.Va. S.E. 194 award, exists, describes how an it once (1925)]) system because it would reward a if should be distributed the claimant dies. rights that did not of claim- “determine entirely The section is silent as to how one speedily expeditiously possi- ants as proceed should circumstance where a Workman, supra. ble.” receiving claimant dies before favorable ruling. Wingrove Compensation Div., v. Workers’ 80, 85, 538 S.E.2d Also, portions we note that other of our presents The instant us with case a similar workers’ law contain contin- again problem, highlights perverse gencies dealing for a claim with after pernicious prior this Court’s incentive example, claimant has died. For the section interpretation of has the law created for dealing Occupation- with examinations injured opposing
those of an the claim work- al Pneumoconiosis Board establishes exami- er. claimants, requirements living nation for dead, Although surely employee intent of “If the Court also states be Legislature, interpretation require or the of law notice the board shall further delay necessary produce has created incentive the claimant consents and those oppose permits autopsy may per- who award. so that an workers’ formed, impute we if While no evil intentions to the board shall so direct.” W. employer allowing per- in this If the death of Va.Code 23-4-8b our law extinguish up Occupational the claimant to the claim a mits the Pneumoconiosis Board sets purely employees gather unavoidable conflict. For rational to examine deceased actor, advantageous injury, compensable surely it is of a it economic extend evidence plain meaning Wingrove We stated: death.” “The the statute v. Workers’ requires given an award to be a claim- reflection, unpaid Upon necessary lifetime we find it ant’s for the further repudiate after his her statement. *10 tention, gathered from the organs of the workers’ whole permits appellate the enactments, processing given Syl. pt. scheme to continue must be effect.” compensation proce- Sims, the Graney if a claimant dies before ex rel. W.Va. claim State (1958). run its course. has We are also mindful dure 105 S.E.2d that: provisions support our other Two statutory the basis of workers’ com-
contention, previ Given which have noted one of we remedies, rights pensation and resultant ously: primary ascertaining the method the compensable a claimant sustain Should availability scope and of such benefits is to total loss injury results in the which plain meaning applicable to the look any bodily members severance Legislature’s and statutes to ascertain the subdivision, die sick- in this named enacting provisions in at issue. intent injury noncompensable before or ness object construing primary in a stat- “The for proper such division makes give is to ascertain and effect to the ute injury, make such award the division shall Syl. pt. Legislature.” intent of the dependents in as defined this to v. State Smith Workmen’s any; to chapter, payment if such be made 219 S.E.2d that would have in the sume installments Virginia Accord Health West Care Provided, living: paid to claimant been if Review Auth. v. Boone Memorial Cost to shall made That no be 326, 336, Hosp., 196 472 S.E.2d claimant after surviving spouse such his remarriage, liability that this or and her of such claim- not accrue the estate shall Industries, Vieweg, ex rel. ACF Inc. v. State subject not be and shall debts ant of, charges against, or such estate. (1999) 23-4-6(f) (emphasis § W. Va.Code Looking together, at provisions these added). later, And several sections the Code running through thread all common is that provides: Legislature that in intended event temporary either total or Compensation, died, workers’ the de- permanent partial, shall under section estate, pendents, and should not the receive only injured employee payable compensation. Legisla- the claimant’s in right thereto not vest and the desire, demonstrating ture is as it has estate, except any unpaid com- her cases8, wrongful in the realm done death pensation paid have been would dependents support receive need employee up to the time payable to compensation, and death, lived, had his or her he or she if up not end hands of does creditors paid to the of such shall be may upon have claims the decedent’s injured employee depen- if be such there estate. at the time dents death. So, 23-4-6(0 respect while we utmost our (emphasis § have W. Va.Code Court, added). predecessors on have and some cha- As we stated on numerous occasions, materia, pari grin Wingrove, over our must recent statements “[statutes together legislative that the be construed and the in- we feel line of cases that saw earlier (2), every wrongful any, specified action death if in subdivision subsection (c) jury, jury, or in a case tried without a of this If there are no such section. surviv- court, ors, may may damages damages award such as to it then shall be distributed in and, or, just, may and direct in accordance with the decedent's will if seem fair what there will, damages proportions the distributed no with the shall be accordance laws of children, surviving spouse including chapter descent forty-two distribution as set forth in brothers, jury only adopted stepchildren, If children and code. renders sisters, damages parents any persons general who verdict on were does thereof, financially dependent provide decedent at for the distribution the court damages in time of his or her death or would otherwise be shall distribute the accordance equitably provisions with the of this subsection. entitled share such distribution 55-7-6(b) (1992). making expenditures, provision after for those W. Va.Code
281 (or forerunners) ie., alive, subsection(g) pay as a still device the back award. Either recovery orphans it, to limit the of widows and the evidence shows he deserved or shows wrong. simply was bearing he did not. His death has no on that question.9 petitioned At the time Martin death, in this before his that, Thus we hold if a disputed claimant in a issue was whether Mr. Martin was occupa- compensation
owed additional for his workers’ case dies pneumoconiosis impairment. pendency tional Had process, he of the claims the claim died, and had in this Court found proceed as if death had not occurred. favor, the Workers’ Division ultimately If prevails, compensa the claim all things: would have owed Mr. Martin two tion that would have been awarded to the pay period back award for the of time from claimant, lived, paid had he or she shall be disability the onset date of his to the date of dependents of the deceased claimant. decision, ongoing payments his favorable Any any dependent might other claims have from the date of the until Mr. decision Mar- as a pro result the claimant’s death shall changed tin’s condition or until he died. To ceed unaffected. the extent holding Wingrove conflicts with v. But, Workers’ though obviously Mr. Martin’s death 80, 538 impacts payments still-living future (2000), received, Hughes 378 might Mr. Martin State have we cannot 629, why any impact see his death should have (1960), question progeny, they hereby whatsoever on the of what sort or its overr award he was entitled to for the time he was uled.10 Sears, Inc., Company,
9. We are not alone in this view. Courts review-
Roebuck and
340 Md.
ing
(1995) (citation
similar statutes in other states share this
666 A.2d
also,
omitted).
quotations
outlook:
internal
See
Currier v.
System,
State Indus. Ins.
956 P.2d
114 Nev.
recovery
Defendants claim that there can be no
(1998);
Newberg,
Robinson v.
S.W.2d
disability
Holiday
benefits inasmuch as
has
(Ky.1993).
52-l-47(C)
They rely
died.
on Section
which
provides
"in
no case shall
Nothing
opinion
in this
should be read to
disability
benefits for
continue after the disabil-
limit,
any way,
dependent
the other benefits a
ity
injured
ends or after the death of the
work-
might
injured
have
aas
result of the death of an
provides
compensa-
man!.]” This section
worker,
related,
whether that death was
or unre-
disability
tion benefits for
terminate
lated,
occupational injury.
to an
The code de-
death of the worker.
section
This
does not
scribes what
benefits are available
those cases:
payment
disability
prohibit the
benefits to
personal
prior
injury,
occupa-
which the worker was entitled
In case a
other than
to death.
places
pneumoconiosis
occupational
Defendants state that
tional
or other
Section 52-1-47
disease,
employee
limitation on all the
authorized
suffered
in the
course
resulting
response
employment,
Sections 52-1-41 to -46.
of and
from his or her
Our
is that
death,
says
disability
nothing
payment
Section 52-1-47
about
causes
is continuous from
death,
disability
injury
benefits to which the worker
date of such
until date of
or if
was
prior
occupational pneumoconio-
death
entitled
to death.
results
Inc.,
disease,
Town,
Holliday
occupational
v. Talk
sis or from
other
102 N.M.
697 P.2d
benefits shall be
the amounts and to the
recently, Maryland
persons
explained:
And more
court
as follows:
(a)
provisions
dependents,
If
The survival
of the Act were
there be no
the disburse-
con-
expense provided
strued
State v.
We there
ments shall be limited to the
Richardson.
held
“compensation payable”
as used in
for in sections three and four of
article.
(1957),
(b)
provision,
dependents
non-abatement
Md.Code
Art.
there
If
as defined
sub-
36(4)(c),
(d)
section,
require
dependents
§
did not
an award
division
prior
paid
long
dependency
have been rendered
to the shall be
for as
as their
reviewing
paid
death. After
states,
in other
in the
amount as
decisions
shall continue
same
constrained,
employ-
paid
this Court felt
view of
or would have been
the deceased
36(4)(c)
phraseology
Maryland
the
statute,
ee for total
had he or she lived. The
reasoning
preference
length
to follow
of those cases
order of
dependence
when
....
sustained awards made
the claim-
shall be as follows:
(e)
person receiving permanent
ant had filed a claim but died from other
If a
total dis-
non-
compensable
hearing
ability
causes before a
could be
benefits dies from a cause other than a
disabling injury leaving
held.
as de-
*12
Validity
permanently
Martin’s
him to be
of Mr.
Martin that showed
The
B.
Underlying
totally
Our law on this issue
Claim
disabled.
for
has been clear
some time:
question that
Having
the threshold
decided
beneficiary
may
of
still be the
Martin
Mrs.
conflicting
pre-
is
medical evidence
When
might
owed Mr.
that
have been
any award
concerning
degree
impair-
of
the
sented
Martin,
the merits of
now must address
we
occupational pneumoconiosis
in an
ment
underlying claim. The record
Mr. Martin’s
claim,
indicating
that
medical evidence
medi
provided
Martin
that Mi-.
indicates
impairment,
is not
highest degree of
Ranavaya,
per
who
Dr. M.I.
report of a
cal
shown, through explicit findings
otherwise
upon
function test
Mr.
pulmonary
formed a
by
Occupational
of fact
Pneumoconiosis
test,
upon the results of the
Based
Martin.
incorrect,
Board,
unreliable,
or clear-
to be
opined that Mr. Martin was
Ranavaya
Dr.
ly
identifiable
attributable
some other
totally
a
disabled as
result
permanently
illness,
presumed
or
to accurate-
disease
pneumoconiosis.
occupational
of his
represent
pulmonary impair-
of
ly
the level
Occupational
required, the
Pneumo-
As is
occupational pneumo-
attributable to
ment
Martin,
also examined Mr.
coniosis Board
coniosis.
examination,
Occupational
and after
Syl. pt.
Javins Workers’
“[We]
Board concluded that:
Pneumoconiosis
S.E.2d
justify
diagnosis
a
find sufficient evidence
Occupa-
declared that the
We have
pneumoconiosis with no more
occupational
of
Board must examine
tional Pneumoconiosis
impair-
pulmonary functional
than the 50%
evidence,
simply
and cannot
previously
to this disease
ment attributable
ignore
precisely
it
it
not
match
because
does
claim].”
Martin’s 1987
[Mr.
found
by
Occupational
produced
the evidence
Occupational
Board went on
Pneumoconiosis
Board:
Pneumoconiosis
supported
finding:
what evidence
to state
upon which we base our find-
The evidence
high regard
the one side we have a
[0]n
history
year old
ings is a
this 56
Occupational
Pneumoconiosis
exposed
has
to a dust
MINER
been
COAL
professional competence in
Board’s
evalu
expo-
years with sufficient
hazard for 27
testimony, yet
ating expert
on the other
pneumo-
occupational
caused
sure to have
law, namely
side we have
rule
perceptible aggravated
coniosis or to have
rule,
liberality
repu
which mandates
pre-existing occupational pneumoconio-
favorable to the claimant be
table evidence
sis.
considered and the
treated
upon which
The further evidence
we base
generously as
reasonable view the
finding
physical
of the
our
examination
justify.
regard
In this
evidence would
Board,
by
pulmo-
the members of the
[sic ]
Board,
Occupational Pneumoconiosis
nary
for the Board
function studies made
Commissioner, and the
Com
Workmen’s
record,
x-rays
part
and now a
of this
pensation Appeal Board
of fact
as finders
of the chest made
a member
position
in a different
from either
are
Board.
chancellor;
jury
they
or a trial
quite entitled to disbelieve evidence based
good,
all
no
While this is
well
subjective
exclusively upon
Occupational
their own
eval
where
Pneumoconiosis
does
credibility
of the witnesses.
presented
Board
uation
discuss the evidence
(d)
section,
ability
employee’s
shall not be made to the
fined in subdivision
of this
Legislature
employer.
dependents
the intent of the
made to such
in an
It is
award shall be
equal
the amendments to this subsection enact-
amount
to one hundred four times the
regular
Legislature
weekly
receiving
at the
ed
session
benefit
worker was
ninety-
year
paid
thousand nine hundred
time
her death and be
either as a
in the
one
of his or
lump
periodic payments,
so as to make
sum or in
at the
nine be construed
eligible
option
dependent
dependents.
for benefits under this subsection retro-
or
Direct
day February,
charges
one thou-
premium rating experience
active to the second
ninety-five.
granted
nine hundred
benefits
as a result
sand
§ §
injury
total dis- W. Va.Code
23-4-10
a second
reliable,
conflicting
Persiani v. State
Workmen’s
evidence about
Commissioner,
degree
respiratory
impairment
caused
pneumoconio-
to occupational
Justice Starcher
attributable
sis,
Division,
point
on this
elaborated
recent concur-
then the
of Judges
the Office
rence:
and the
Board must award
claim-
ant
based
the reliable
SWCC,
evidence
In Persiani v.
that shows either
of occupation-
the existence
*13
248
specified
S.E.2d 844
we
that the
pneumoconiosis
al
highest degree
or the
liberally interpreting
rule of
in
evidence
impairment.
given
The claimant must be
the
favor
in
applied
of the claimant is to be
all
benefit of
reasonable inferences the rec-
occupational pneumoconiosis claims. We
allow,
any
ord will
in
conflicts
evidence
liberality
described the
“which
rule as one
must
in
be resolved
favor
the
claimant.
reputable
mandates that
favor-
evidence
See,
Div.,
Compensation
Thacker Workers’
able to
claimant be
the
considered and the
(Starcher,
207
at
W.Va.
531
at 75
S.E.2d
generously
treated as
as
rea-
C.J., concurring).
justi-
sonable view of the evidence would
fy.”
IV. in unambiguous rule set forth ing to the no of un- Wingrove, there can be CONCLUSION dependents paid benefits to the claimant’s stated, of the decision the For the reasons his death. this because the after Appeal Board is Compensation re- Workers’ having claimant died without ever received entry of This claim remanded versed. award, extinguished upon the claim was an disability with total permanent a applicable and the his death. The statute 1994, 4, August of and the onset date law of are clear. settled this Court There- payment to Martin’s fore, apply this Court the statute and should Mr. Martin would have resultant against in find Wingrove our rule and up to the of his death. received date claimant. and remanded. Reversed However, majority not does like by of the application mandated estab- result MAYNARD, Justice, dissenting. Therefore, majority lished law. chooses (Filed 2001) 11, Dec. plain and ignore terms of statute opinion to overrule unanimous this Court in majority opinion has no basis our 2000, July decided on mere principles of stare deci- law and violates year ago. and a half I believe that this sis. by the should be bound doctrine Court system Because the workers’ Wingrove. The doc- stare decisis follow creation, statutory should look is a Court principle, of stare decisis rests on trine compensation stat applicable workers’ to the by governed law which men are issues the instant to decide like one. ute fixed, definite, known, and should be Compensation rights and resultant “Workers’ that, by court of when law is declared statutory to ascer are order remedies jurisdiction competent authorized to con- benefits, availability scope tain the declaration, it, absence of strue meaning plain looks to this Court error, is itself palpable mistake or evidence legislature’s intention.” Win ascertain by changed competent law until grove v. Workers’ authority. Sims, n. object construing Booth v. primary statute “The (1995) (citation 167, 194 n. 14 omit- give to the intent of S.E.2d to ascertain effect ted). reasoned, Wingrove devoid of Syllabus Point is well Legislature.” Smith v. error, applicable only findings it palpable and the disturbs the mistake changed since Workers’ Board when governing statute has Therefore, Court, findings clearly wrong, Wingrove there is these are was decided. fact, every Wingrove. reviews de novo workers’ com- no sound reason to overrule pensation appeal accepted by the Court and Furthermore, disposition the Court’s significant percentage Board a reverses the disability claim total of the time. syllabus point law forth in and the new set wrong. Although regularly Court Second, routinely abrogates leg- the Court refers to v. Workers’ Javins by resorting islative mandates to the so Com’r, 173 W.Va. liberality” called “rule which was created SWCC, 230, 248 and Persiani v. arguably ex nihilo this Court. While (1978), longer no S.E.2d 844 these eases are application liberality of a rule is warranted good light law of the 1995 amendments to parties’ evenly where the evidence is bal- the workers’ statutes. Accord- anced, regularly abuses the rule (1995), ing part: 23-4-6a W.Va.Code find for where his her evi- employee perma- inadequate.
If an grossly example, is found to be dence is For nently occupational pneu- chiropractor’s per- will disabled due to this Court choose perma- centage impairment ... percentage moconiosis evaluation over the orthopedic surgeons nent evaluations of five based be determined degree impairment liberality on the rule. medical is found occupational pneumoconiosis board. According to the “Workers’ *15 setting an The division shall enter order Training promulgated by Manual” the Work- findings occupational pneu- forth the Division, Liberality ers’ “[t]he regard moconiosis board with to whether something you is of which should Rule occupational pneumoconi- has you something aware. It is not should rou- degree impairment, osis and the of medical tinely justifying to in resort any, resulting if That therefrom. order fact, In citations benefits. to the rule should shall be the final decision of the divi- your almost be included in decisions.” never to, objected ... If sion. such a decision is Further, important emphasize “[i]t is judges shall affirm office the deci- Liberality proof Rule is no substitute occupational pneumoconiosis sion of the of entitlement to workers’ ben- following hearing board made unless the Court, however, routinely efits.” This cites clearly wrong decision view of the justify liberality and it rule uses reliable, probative and substantial evidence compensation appeals. decisions workers’ on the whole record. By ignoring plain statutory language, dis- therefore, dispositive question, The is wheth- review, regarding abusing standards Occupational Pneumoconiosis Board er rule, liberality usually this Court man- reliable, clearly wrong light claimants, way ages to find for often some probative and substantial evidence on the “It contrary to the reliable evidence. is not unequivocally whole record. The answer good respect persons judg- to have Ranavaya’s opinion Dr. no. that the claim- ment.” totally permanently ant was disabled conclusion, applied I would have occupational pneumoconiosis a result of his Wingrove § 23^á-6(g) Code reliable, probative, does not constitute find that Mr. Martin’s claim was extin- substantial evidence renders the Occu- guished by his death because he did not pational clearly Pneumoconiosis Board rulings. previously favorable Ac- receive wrong. cordingly, I dissent. majority example opinion is another compen- this Court’s results-driven workers’ First, jurisprudence. regu-
sation the Court
larly applicable abuses the standards re- Although repeatedly
view. the Court asserts 24:23, Version). (King part. Proverbs James