*1 by ing pension qualified is affected to an otherwise private interest that member, mandamus lie to its action is not insubstantial. will correct the official benefits, disability which are action. ex rel. v. Board Pension and State Williams entitlements, Trustees, provide important supra. the covered equivalent to They are economic benefits. Thus, summarize rights that we termed “a valu- the tenure process rights due that should be accorded in McLendon. property able interest” a member the Policemen’s Pension is the risk of errone- The second factor Fund, W.Va.Code, Relief 8- created under This risk is not as conse- deprivation. ous 22-16, such member is entitled to retained ques- where the quential as in McLendon counsel, deposition physi to take the variety rests on a of criteria tion of tenure Board, appointed by appear cians perform- a teacher’s utilized to evaluate present the Board to his reasons before ance, may difficult to settle with- which qualifies, why he and to have Board evidentiary hearing. type some give outlining a written its rea statement Here, the chief issue one denying sons for benefits. recognize it can in- disability, we permit We reverse this case order to complicated issues as this case volve some to have the benefit of these Mr. Barron perceive Consequently, we can illustrates. doing, procedural safeguards. so we procedure explore the need for some express no wish to make clear that we However, we do develop disputed facts. opinion regard underlying mer- a full adversarial evidentia- not believe that of his claim. required. ry Reversed and Remanded. avoiding Finally, the interest State’s fiscal and administrative costs increased
resulting procedural process from consider-
quirements is not an insubstantial Many municipalities in this State
ation. depressed. Because of the financially scheme, in- physicians chiefly
statutory Charleston, Huntington, volved are from It would be difficult Morgantown. NELSON, Byrd et al. expense standpoint for a time and hearings places. in other to attend them attend, Commissioner, they well MERRITT, By requiring them to Mary Martha It employment initially. would refuse Workers’ ambiguities sufficient to resolve seem Commission. through the use of No. 16742. depositions. Appeals Supreme Court additional We conclude that several Virginia. of West taken that safeguards could be cedural process unduly encumber 9, 1985. Dec. expense. significantly to the Board’s add 12, 1986. Dissenting Opinion June retained at- or his aggrieved member appear
torney have the should the rea- to it the Board
before given in a why pension is warranted
sons right should accorded A similar
case. oppose pension, municipality to Board should file Finally, the
desired. for its actions. statement
written held that if the previously
We have regard deny- improperly
Board acts *2 the decision decision because submitting evi- prevented him from develop fully.1 necessary to his case
dence additionally complain Several *3 long delays and are dis- administrative Brogan requirements re- tressed about the reports.2 lating exchange of medical to asked, among things, other This Court is to: Brogan Modify decision so as to
1. permit to select more than one a claimant him for physician to examine and evaluate by conducted each medical examination neutrally by physician selected the Com- missioner; and Brogan syl. pt. 5 of the deci- 2. Reverse requirements setting sion reports, notice of exchange for of medical requests reports, medical objections to expert, prior medical for of the examination evidentiary hearing. to an Brogan require- While we feel that exchange relating to the ments medical re- reports, objections notice for examination of the ports, requests expert prior to an evidentiary medical Wilson, Logan, appellant. for Amos C. decision and one a correct was Stultz, Charleston, appel- L. Robert expeditious necessary speedy lee. longer justice, we are no administration rule” in the “one doctor convinced that
BROTHERTON, Justice: legally being applied, is as it is involving correct. proceeding, In this mandamus workers’ six consolidated rul- Brogan grew out of a decision claims, review and is asked to the Court Appeal Compensation ing of the Workers’ decision in reverse its modify, clarify, or Board, ruling Workers’ affirming a Compensation ’ v. Workers Commissioner, reducing the Comm’r, disability partial permanent claimant’s interpretation the Court’s as to Brogan, the Mr. award 20% 15%. W.Va. Code § claimant, upset over the number was required to un- he was un- medical evaluations presently case petitioner in the
Each resolve his claim dergo in order to aggrieved to be consideration claims der exchange- held, medical re- ployers promptly all part: syl. pt. the Court 1 of directly to the Commis- ports them and submit enacting W.Va. Code Legislature in "... The waiting evidentiary hear- for an sioner without grant and an a claimant intended to § 23-4-8 one, one, ing. Upon receipt, will become employer physician to select case, subject a claimant and evaluate part to examine of the record and evaluation examination party object for each medical opposing right of an indepen- physician by such neutral conducted dently admissibility cross-examine the and to by the Commissioner." selected requests Admissibility objections and experts. promptly must also be for cross-examination Broqan: syl. pt. 5 of also held in 2. The Court need- to avoid to the Commissioner submitted Code, 23-4-8, liberally con- when "W.Va. hearings." evidentiary less objectives of the workers’ achieve the strued to compensation law, requires and em- claimants required to un- claimant is Where the limit the number this Court asked dergo examination or exami- This a medical a claimant. required of evaluations physicians argu- physician Brogan’s nations Mr. persuaded syl. pt. employer, as aforesaid ments, set forth selected adopted the rule (see su- claim which note connection with 1 of the shall reimburse litigation, held that W.Va. pra) and employ- wages, and rea- the claimant and the claimant for loss of limited af- traveling expenses medical evaluation additional and other er to one sonable referred had or ex- such examination ter connection with evaluation. independent aminations, expenses an claimant out for not to exceed the by a paid a claimant is examined when *4 this hold- now claim that The physicians selected physician or the Commission- and that ing was incorrect commissioner, added) (emphasis require- procedural memoranda of er’s 1985, 6, May February and ments dated reading the sec It is clear from implement the designed to of W.Va. Code paragraph ond § After problem. compound plural “examinations” use of and considering parties’ briefs carefully legislature intended “physicians” appar- question, it is relating to the the law than employer entitled to more requires in that our decision ent by more than one one medical examination clarification. employer.4 physician as selected statute, word of the
interpreting a each effect, if given some should be statute I. common, given its ordi undefined will be 23-4-8, Brogan de- interpreting § See, meaning. e.g., nary, accepted Wood para- first inquiry to the cision confined its 65, 68, 230 S.E.2d Dailey, 160 W.Va. dell v. section, dealing the ini- graph of that phrase “examination The for proper award determination of tial unambiguously allows or examinations” to-wit, temporary total injury, a claimant's leg If the examinations. for one or more litiga- not in disability payment, or claims claimant to be had intended for the islature supra, 174 W.Va. tion. See once, only they would not have examined cases, 520-21, In such at 698. plural nouns “examinations” used the claimant to refers the ” the Commissioner course, implied, It is of “physicians. and, if single an examination physician for entitled to more than one employer if the he, desired, employer so the claimant or the the claimant medical examination too, to be exam- might require the claimant medical ex to more than one also entitled The Bro- single time. ined and evaluated a amination. the extent decision was correct to gan claims not applied rule to it the one-doctor of the claimant litigation. in of medical ex employer to have a number strengthened when is further aminations however, incorrect, in its Brogan was (which deals Code 23-4-7a W.Va. § of 23- of application the first § monitoring temporary total disabili second litigation.3 in 4-8 to claims procedural requirement ty claims and a the eval- 23-4-8 deals with paragraph of § evaluation, perma any, review and claims procedure Compensation uation disability) is read in partial nent litigation: each disci- one doctor from tion allows for litigation to mean a context 3. We define this pursuant to While this protest appeal pline to examine the claimant. or an has been made certainly interpretation, plausible the Workers’ Act. it is not abe interpretation we set the exclusive one. has It should be noted that the commissioner footing today than that more solid forth rests on interpretation of Code set forth different is, therefore, commissioner, and it enunciating in 23-4-8 than that which we are § adopt. interpretation we interpreta- opinion. The commissioner's 23-4- requires W.Va. Code ex- materia with 23-4-8.5 § § 7a(e), 23-4-8, support provides that change reports, admission this section are addi- provisions of reports, reply by par- the medical “[t]he way derogation are in no tion to and objection ties to their or power authority in the Com- vested their desire to cross-examine the medical provisions chap- missioner other experts. really This is heart of have a ter vested apparently ig- physician physi- examined claimant nored it in her because rules Again, ...” the use cians of its selection appear that numerous continuances indicates plural “physicians” multi- herein, granted in were the six cases with- We, ple contemplated. examinations are being any just This cause shown. therefore, hold that where Workers’ Com- Court, Huffman, in Scites v. pensation litigation, is in both the claim restated employer and claimant are entitled to a already Brogan by what had been said examina- reasonable number delays holding long processing tions,6 modify Brogan accordingly. we claims were consistent with intent *5 legislature in the enactment com- II. pensation legislation, nor does benefit the a the seek rein While claimant. Court restated the Scites terpretation or as reversal to Compensation the sections of Workers’ Act the of medical the number examinations mandatory procedural which deal with re- may request, employer claimant and and a quirements mandatory processing and syl. pt. the under reversal of 5 quirements, hope with the that the Com- sought lying by the claimants is a- relief bring missioner would some order out of procedures of order in the which semblance expedite the the claim- morass would just allow for endless continuances without lawyers, shown, require ant’s claim and the who denying cause the claimant his expeditious procedural guide- speedy a and determi seem to to be control policy Commission, the pursuant nation of his claim to lines have all of for the to as forth in W.Va. Code 23-5-3a set completed § their medical examinations with- (1985),7 syl. 1 of pt. and v. Workman time, period and the specified a Comm’r, 160 Compensation Workmen’s expert testify, to the direct was 656, (1977). 236 236 W.Va. S.E.2d and would all be com- cross-examination pleted day in one and continuances would grant the claimant
Brogan attempted to stressing granted additional examinations syl. be pt. some relief in 5 chapter dealing policy rights, Compensation 7."It is the of this 5. statutes Workers' subject compensation are read in the matter to for workmen’s same claimants See, e.g., v. Workmen's Hudson State speedily expeditiously pos- materia. as and as determined 515, Comm’r, 162 W.Va. 256 incapacitated by those sible to the end that (1979). S.E.2d 865 injuries dependents work- of deceased possible quickly as as men receive benefits party to num- be entitled While a hardships which of the severe economic view necessary to ber of medical examinations injured immediately or befall the families of the claim- determination achieve an accurate Therefore, the criteria for deceased workmen. disability, not allow multi- this Court will ant’s ple hearings supplemental "for continuances faith a be used in bad as examinations to strictly good to be cause shown” are construed delay a a claimant or tactic to intimidate repre- and his commissioner authorized Hopefully new ceeding. the Commissioner’s prevent delay, granting deny- regulations procedure or for determ- to will set out sentatives ing supplemental hearings. ing number” It what "a reasonable continuances each case and time chapter prohibit be in policy examinations will to is also the all examinations shall frame when completed; injured just deceased denial of claims report mailed to the Commis- dependents on technicalities.” workmen sioner; exchanged parties;' between § W.Va. 25-5-3a of the intent written notice evidentiary parties desire for an of the proceeding of a concerning reports. the medical of the medical quest examina- cross-examination period passed had when once the expert. been conducted. submission tions should have request for direct and cross-examina- records reading the It is obvious from experts prompt- of the medical must be tion appeal the six cases involved delays ly the needless submitted to avoid come be- cases that and other claimants’ hearings. evidentiary and the number of no criteria are fore this that there Court hear- supplemental for continuances and principal purpose While in this our simply for necessary is ings. decision, All opinion clarify is to parties request lawyer of one of meaningless if the our efforts would be next until the continued required modify claim be were not Commissioner docket, seldom examiner accordingly. Because her rules for the to the reason inquiry makes respondent mandatory duty that either than fact regulations continuance other in accord promulgate rules and lawyer lawyer claimant or for the of this see W.Va. ance with decisions go prepared is not (1985), Lewis, for the Code 23-1-15 Meadows v. general Despite time. forward W.Va. 641-42 liberality in cases of policy (1983), compel a will lie to mandamus mat- and substantive procedural, discharge technical officer to nondiscretion public ters, states: 23-5-3a W.Va. Code ary duty, syl. pt. see State ex rel. Bache supple- continuances and 499, 177 criteria for Gainer, S.E.2d “[T]he & Co. good hearings mental ‘for cause shown’ grants petitioners’ Court commis- strictly to be construed prayer against for a of mandamus writ representatives sioner his authorized respondent respondent’s as the insofar *6 denying con- granting in prevent delay, February May 8 and 6 are memorandum of hearings.” supplemental opinion, tinuances instruc in conflict with this with Therefore, added) continuanc- (emphasis no to com to amend said memorandum tions in granted should a es be ply with this decision. Court’s except shown. good cause is case where granted as moulded. Writ answer, Commissioner, The her in McGRAW, Justice, dissenting: created a blue ribbon indicates she has absolutely nothing Brogan is in consisting lawyers for the There committee of of claimant, paragraph conflicts the second employer, the law lawyers for (1985 Virginia 23-4-8 Re- union, for the yers lawyers West Vol.). at Commissioner, placement Brogan, practice draft new that, “Proper de- this pursuant to the au Court observed procedure regulations may, of facts and often velopment medical thority of under W.Va. the Commissioner does, require examinations and evaluations 23-1-13, This Court Code §§ physicians representing more than one by to re applauds efforts the Commissioner’s specialty.” Syllabus Point 1 of system medical in the problems solve the that, part in “The Brogan, this Court held new rules should and stresses that these Code, enacting 23-4- unnecessary Legislature con in W. Va. any so to end drafted as time, grant a claimant and an intended to for the third tinuances. This one, Scites, to select in now it did in as did as one, physician liberally to examine and evaluate that have affirms those decisions require for each medical examination claimant Code 23-4-8 construed W.Va. physi- by such neutral evaluation conducted exchange among parties by Commis- independently re cian selected any and all medical Commissioner that, Thus, contemplated have, wait sioner.” might without ports each indeed, involving more circumstances evidentiary hearing, and ing for an specialty, a claimant object than one medical requirement parties shall undergo medical “required ad writing to as to the physi- examinations missibility report state their examination or of a Moreover, employ- ly wrong. physicians there is no discussion cian or selected majority opinion Virginia evidence of er” under West Code § (1985 changing judicial conditions or er- Replacement Vol.). This same funda- serious resulting in execution of reasoning ror burdensome majority’s mental flaw respect applica- mandate. With respect its appears to its materia decisis, 23-4-7a(e) tion of the doctrine Virginia stare reading of West Code § message majority opinion of the is undenia- (1985 Replacement Vol.). Analysis of bly persuasiveness clear. somehow implication The Court precedent jurisdiction established of West the second overlooked compositional is more than rational. (1985 Replacement Virginia Code § practical majority’s The effect of the de- Vol.) Brogan patently is absurd. See parture is immediate restora- 520-21, at 327 S.E.2d at Brogan, 174W.Va. practice mandating many tion of the cogent is from lack of 698. It obvious seeking disability workers run an' benefits grasps analysis majority at straws excruciating gauntlet superfluous often super- Brogan. in its emasculation prevail. examinations in order to ficiality majority’s of the discussion Especially seeking for workers benefits for in- physician per speciality rule one pneumoconiosis injuries, or back proceeding stant stands in stark contrast to nothing cess can be described less than thoughtful disquisition contained in physical psychological torture. Particularly troubling Brogan. ma- speaks majority opinion of a “reasonable complete address the jority’s failure to examinations, number” of medical over- practical impact departure of its from Bro- that, minimum, looking still light applicability of the clear gan permitted three for each examinations doctrine of stare decisis. speciality, one commission- decisis,” principle “The as this stare physi- physician, employer’s er’s one Corp., Bechtel Dailey Court observed cian, physician. and one claimant’s 1023, 1028-29, opinion gives majority absolutely no firmly jurispru- “is in our rooted by more indication of when examination Uniformity in law continuity dence. specialists appropriate. than three would be necessary.” This noted further Court Therefore, guidance given the com- no *7 at Dailey Corp., v. Bechtel 157 W.Va. respect promulgation missioner with that, “[Djeviation at 207 S.E.2d regulations implement this of rules and application ab- from its should not occur amorphous “reasonable number” standard. urgent compelling reason.” sent some Shifting to the commissioner this burden Hospital, v. also Adkins St. Francis See Harry S Tru- demonstrates that President 705, 718, 149 W.Va. that, willingness accept the fact man’s contemporaneousness of the here,” stops not shared “The buck protec- strengthens decision of this Court. majority “If concept decisis. tion stare compassion and for the in- concern play any of stare is to the doctrine decisis jured decision in reflected in the worker role,” Dailey v. stated judicial this Court conspicuously from the Brogan is absent Corp., Bechtel opinion. reality, majority the workers’ decision so “we cannot overrule a into compensation system twisted been recently rendered evidence without physicians’ compensa- attorneys’ and judicial er- changing conditions or serious system. tion ror.” “professional” benefi- these threatened immediately have urgent and reasons compelling They No reacted almost ciaries. overruling given by unquestionably self-motivated swift- majority been fact, given by return reason to secure a to “business Brogan. ness usual,” how- with the “business as majority, Brogan’s conflict usual.” Where ever, balancing afflu- personal Virginia means West second on (1985 Vol.), professionals the backs Replacement is clear- ence of State, I must injured working people of this
dissent.
Kenneth ROBERTS HOSPITAL, INC.
STEVENS CLINIC Magnus, M.D.
and Vernon J. 16598, 16599.
Nos. Appeals of
Supreme Court of Virginia.
West
April 12, 1986.
Dissenting Opinions June