*1 сausation, within a damages, to commence that scenario. We under survive identified completed fact, discovery is orderly trial of the time after believe, that the reasonable discovery original neces- We understood and the in the nine cases. original nine cases trial, respect argument to issues that cau- with oral sary to that from the Petitioners’ causation, damages, compels the discovery and four- liability, damages for the sation and original nine trials of both the conveniently begin with- plaintiffs conclusion could teen proceed should subsequent fourteen and the our decision in six or seven months after prohib- We therefore along traditional lines. likely also note that herein. We in this reverse bifurcation use of it continued discovery completed on the issue substantial case.12 may be liability for initial nine cases appropriate to or more of the useful and one
IV. Conclusion cases. later fourteen foregoing, we conclude upon the Based proper reme- prohibition that a writ of of Mandamus denied. Writ explained in As this Court dy in this matter. granted, moulded. of Prohibition as Writ Berger, quot- v. syllabus point four of Hoover above, factors must be examined several ed DAVIS, deeming herself Justice Chief prohibition a writ of determining whether disqualified, participate in the did 14-15, 483 199 W.Va. at granted. should be in this decision ease. 14-15, upon syl. pt. 4. Based pres- factors to the application of the Hoover case, the Petitioners we conclude
ent through which adequate means no other
have
discovery order.
from this
to obtain relief
should be parties permitted Company, Appellees. are to be particular, discovery regarding lawful to conduct such 27730, 28392. Nos. liability may required and to conclude be Appeals of Supreme Court discovery damages therein causation and Virginia. speed. Those nine cases with all deliberate tried, all, hearing of if at after the to be Feb. 2002. Submitted present- dispositive motions as June 2002. Decided ed, single unitary trial. As to the in a Dissenting Opinion Justice of Chief eases, remaining requirement of fourteen July Davis discovery purposes reverse bifurcation aside, cases shall be shall be set and the trial, traditional, unitary
prepared issues, liability,
discovery of all whether directing diligence abundantly court has er court’s continued 12. It is clear that the lower energy litigation devoted considerable time discov- it is remanded for traditional case, management aware and this Court is trial, of this ery plaintiffs the initial nine first for appreciative of the lower court of the efforts subsequently fourteen for the more recent effectively complex unique to deal litigation with a plaintiffs. the low- scenario. We are confident of *4 unreliable, grant- model were amination disability ratings. higher claimants ed the appealed, employer in each case Board found Compensation Appeal to be questioned of examination method valid, original awards and reinstated Compensation Divi- granted the Workers’ arguing that the appeal, The claimants sion. disregarding Judges was correct Office model because questioned examination Smith, Run- Esq., Rundle & Raymond S.F. con- our law. Because we in conflict with Pineville, Repass. dle, Appellant Judges, we logic of Office of cur with the reverse. Henry, Reginald D. Stacy, Esq., M. Don Appellant Beckley, for Bowеr.
Esq., I. General, MeGraw, Jr., Attorney Darrell V. General, Keech, Attorney Assistant Sandra BACKGROUND Charleston, Compen- Appellee Workers’ cases, which we Today two we examine Division. sation *5 they the same concern consolidated because Esq., Kay, & Salisbury, Casto Howard G. concern the use questions of law. Both cases Charleston, PLLC, Appellee Chaney, for method, “model,” or diagnostic particular of a Mining Com- Corporation/U. S. Steel USX injuries spine. evaluation of for the pany. Model, method, Range of Motion or the One Webb, III, Woods, Tracy L. Esq., John W. ROM, measures, implies, name as the Love, McDavid Graff & Esq., Rice Bowles spe- range across several patient’s of motion Charleston, Appellee Maple Meadow for compares doctor then cific movements. The Mining Company. presumed normal ranges against these uninjured Doctors ranges individuals. for Huffman, L. Esq., Timothy John J. method, Diagnostic-Re- using other Kelly, Esq., & McClaugherty, Jackson DRE, Model, examine lated Estimate Charleston, Virginia Amicus West Curiae assign injury symptoms and then patient’s Chamber Commerce. categories, or patient eight one Howard, Wheeling, for Esq., Sue Anne holes,” particular on those “pigeon based Lawyers Virginia Trial Amici West Curiae symptoms. Virginia AFL-CIO. Association and West found the American Both models are Crandall, Turner, Pyles, Esq., D. William to the Evalua- Association’s Guides Medical LLP, Turner, Lewisburg, for Haviland & Impairment, Fourth Edi- tion Permanent Lawyers Virginia Trial Amicus Curiae by promulgated Rules Association. com- Compensation Workers’ Commissioner Charleston, Maroney, Esquire, Thomas P. to conduct their examinations mand doctors Virginia AFL-CIO. for Amicus Curiae West with prepare reports accordance their examining patients for publication when this McGRAW,Justice. disability.1 The two mod- permanent partial very produce different who often compensation claimants els Two workers’ usually producing a DRE ratings, ini- with the injuries disagreed with the back suffered percentage impairment, and the granted lower disability ratings tial them percentage of im- producing higher appeal- ROM Compensation Division and Workers’ supports and has its pairment; each model case, Judges found ed. each the Office However, the fourth edition detractors. under one ex- that examinations conducted relationship impairment and between an cuss disability 1. Once has determined the doctor Division, claimant, agrees, rating if it for a below. disability rating. grants We dis- the claimant a percent DRE an a 5 permanent partial demands that Model award for Guides disability. in most circumstances unless a doctor used why special show some reason that mod-
can protested Repass Mr. the Division’s award should not be used. el report and submitted evaluation conduct- ed Carlson August a Dr. on 1997. Dr. about Mod- Because of concerns the DRE el, Carlson Repass using examined Mr. greater length infra, discussed Repass ROM Model concluded that Mr. Compensation Judges Workers’ Office of percent impairment, specifically, suffered a examinations “unrelia- deemed DRE-based percent However, percent for the fracture and late 1997. ble” Workers’ Thereafter, of flexion in Compensation limitation his back. Appeal Board continued employer, Mr. Repass’ accept Mining two U.S. Steel DRE-based examinations. The Company, yet had doctor appellants in ease both another examine received lower Repass. Mr. Dr. Paul Bachwitt ratings higher DRE examined under the Model and Repass Mr. ratings ap- under ROM October and his Model. Each report referenced both DRE and pealed Compen- a decision of the ROM Workers’ methods, apparently Judges, Division but doctor sation Office of claimed Then, prevailed. findings the ROM each them were credible and where each of ROM method should not be had decision used. favorable reversed Board, method, Bachwitt, Under DRE Compensation Appeal Dr. agreement Landis, report of Dr. subsеquently appealed that adverse decision Repass granted found that Mr. should be a 5 Court. For the reasons set be- forth low, percent award. performed we find that examinations unreliable, DRE invalid under the The Workers’ Office of Appeal and reverse the decisions of the Judges Repass’ appeal considered Mr. Board. 11, 1998, on March issued a decision revers
ing prior percent, the Division’s award of 5 A. granting Repass percent and Mr. a 9 award findings. reaching based on Dr. Carlson’s Repass v. and WCD U.S. Steel conclusion, judge law the administrative Co., Mining Inc. opinion referenced earlier of the Office of R. Repass injury William suffered an to his Judges, known as decision of the Cottrell working lower back on June while 1997,2 August in which the chief administra employer, Mining Compa- his for U.S. Steel judge tive law had determined examina claim, ny. Repass Mr. a filed and some time using tions conducted the DRE were unrelia Virginia Compensa- later the West Workers’ Mining Company appealed, ble. U.S. Steel “Division”) (the tion Division Mr. referred 30, 1998, September and on the Workers’ Repass to a Dr. Landis for an evaluation Compensation Appeal reversed Board and permanent degree partial his determine percent reinstated the initial 5 award for disability, During if any. an examination permanent partial disability granted upon the DRE Model on based conducted Repass challenges Division. Mr. now 30, 1996, Dr. Landis found October evidence Appeal final Board’s decision. Repass’ a healed fracture one Mr. vertebrae, range a full lumbar and of motion B. spine. the lumbar Dr. Landis concluded Maple Bower WCD and Meadow Repass Mr. reached med- had maximum Mining Company improvement, a ical and that he suffered percent sepa- as result of Mr. Randall Z. two the June Bower suffered injuries back, injury. receipt to his on Upon of Dr. Landis’ rate October one evaluation, Repass years July awarded one about the Division Mi-. two lаter question greater M. decision was that of Thelma which we discuss detail below. 2. Cottrell, 92-66811, 22, 1997, August Claim No. (1965)). also bear We must Also, Mr. Bower was S.E.2d while Compensa injuries, Workers’ mind that: ‘When the these his examinations midst of ruling Judges Appeal released the Cottrell Board reviews the Office of Judges it policy Compensation memoran- accompanying Office decision dum, more examina- even of review set which necessitated must do so under the standard 23-5-12(b) (1995), examination Accordingly, Mr. Bower’s tions. out in W. Va.Code briefs history quite complicated, and the will be reversible error.” to do so failure chart that sets forth the actually contain a Compensation Syl. pt. Conley v. Workers’ corre- him and them who examined doctors Div., findings.
sponding provides Appeal that the That Code section Judges Board reverse Office Mr. eight than doctors examined No fewer findings in violation of judge’s when the January 1996 and December between Bower statute, statutory judge’s in excess of the Model, 1998, using DRE the ROM either the upon procedure, unlawful authority, made Model, both, giving him Appeal of law. The some error percent. By affected percent to 16 ratings from if administrative 22, 1997, also reverse awards Board must Division hád made April clearly wrong, partial judge’s or arbi percent permanent law decision is a total of 5 abuse of disability. trary, capricious of Cottrell or characterized After the issuance 23-5-12(b) (1995). examinations, the Office flurry of additional W. Va.Code discretion. granted Judges the Division reversed percent. disability rating of. 16 Mr. Bower a III. disregarded Judges apparently The Office upon the DRE and any based examination DISCUSSION rule, basing award liberality applied the highest impairment rating found upon the Liberality A. ap- employer Model. The under the ROM 29, 2000, Appeal pealed, and on June Court, by the Though often stated the earlier Board reversed reinstated polar repeating that look to one it bears perma- percent by the Divisiоn of 5 award compensa guidance in star for “ disability. Mr. Bower now asks partial nent Workmen’s tion case. ‘The Appeal Board’s this Court to reverse the nature, and must be Law is remedial its 29, 2000 June decision. accomplish given a liberal construction *7 3, Syl. pt. McVey v. purpose intended.’ II. Co., Telephone 103 Chesapeake Potomac & (citation (1927) 519, 97 omit 138 S.E. W.Va. REVIEW STANDARD OF ted).” 1, Syl. pt. v. Workers’ Com Plummer fact, considering question If Division, 710, 209 551 pensation W.Va. show substantial defer “[i]n most cases we (2001). Virginia Work 46 The West S.E.2d findings of the Workers’ ence to the factual system to the bene Compensation exists ers’ Compensation Appeal Plummer v. Board.” freeing employers employees, fit of both Division, 209 W.Va. Compensation simple negli employers from lawsuits for (2001). However, 710, 46, 712, 48 551 S.E.2d compensa ensuring employees gence while law, question as we are considering when injuries. for them work-related matter, standard differs: the instant our injured compensate designed to appeal The Act is findings of fact of the “[w]hile the speedily expeditiously as they are mani workers board conclusive unless are evidence, injured workers festly weight possible order against the of the board, upon support depend them based those who legal appeal conclusions during period subject by shall not be left destitute upon findings, to review such are system of this disability. benefits v. Workmen’s the courts.” Barnett State 796, 812, employer, who re- Com’r., accrue both Compensation 153 W.Va. liability (1970) common-law tort lieved from (quoting 172 707 Emmel S.E.2d injuries, Director, and to the negligently inflicted Compensation 150 W.Va. State
93
employee,
prompt payment
system.3
who is assured
The command of the law that the
of benefits.
compensation process
be “unre-
by
stricted
technical and formal
pro-
rules of
Lewis,
457, 469,
Meadows v.
W.Va.
that,
cedure” means
if the statutes would
restating
In
S.E.2d
provide a
compensation,
worker with
principle,
per
we are not unmindful of the
Commissioner cannot create barriers or hur-
ception
system
that our
makes our state less
prevent
recovery.
dles that would
If the
attractive
some businesses. But it is for
system
producing
results,
is not
the desired
Legislature,
Commissioner,
not the
Legislature
statute,
then
change
can
courts, to
make the difficult and some
doing
so
craft a solution
to a
suitable
unpopular
necessary
times
decisions
to fund
majority of the
recognize
electorate. We
system
expenses.
or limit its
The Com
responsibility
the ultimate
for the fiscal
must follow
missioner
the commands of the
Virginia
health
the West
Workers’ Com-
expressed by
statute.
pensation system
Legislature.
rests with the
express statutory authority,
absence of
it is
Balancing
conflicting goals
minimizing
duty
major
not the Commissioner’s
to take
premiums
providing
while
full and fair com-
steps
compensation
deserving
to limit
pensation
injured
workers
workers,
exclusive
design systems
that make recov
province of
publicly-elected legislators,
our
ery
likely.
less
Indeed:
and is
by
not to be invaded
the Commission-
Compensation
“[The Workers’
Act] re-
er, or the Courts.
quir[es]
compensation
the state
commis
in administering
sioner
the workmen’s
bearing
And so
in mind that “al
fund,
compensation
though
ascertain the sub
regulations
the rules and
governing
rights
stantial
of the claimants in
compensation
the workers’
in this
carry
justly
manner as will
out
and liberal
necessarily
state are
complex,
detailed and
act,
ly
spirit
of the
unrestricted
prevent
we must be careful to
those deserv
procedure
technical and formal rules of
ing
being
thwarted
Ott,
Syllabus,
part,
-”
Culurides v.
procedural niceties,”
technicalities or
Martin
(1916) (citation
78 W.Va.
Workers’ Commissioner impairment” “impairment,” according disability by looking would then determine indicating that “[a] opinion impairment, at the doctor’s permanent degree claimant’s whole mix opinion with evidence body impairment medical is to be deter- earning claimant’s capacity, the effect of in keeping mined determination of impairment efficiency on the claimant’s person permanent impairment whole as set work, impairment and the effect Id., forth part.) the Guides.” relevant pursuit every- on the of normal claimant’s The exclusive use of the Guides for evalua- day factors, living. mix of From a these and, therefore, impairment tion of perma- compute the Commissioner would partial nent disability, is not recommended permanent percentage partial claimant’s by its author: disability. permanent The Commissioner’s problem “The critical is that no formula is would, partial disability theory, award knowledge known which about a medi- only partially account take into the doctor’s cal condition can 'with be combined knowl- impairment. determination of edge about other factors calculate the In 1995 the amended W. percentage by employee’s which the indus- Va.Code, 23-4-6(i) to state that “the de- body impaired. trial use Accord- gree permanent disability other than ingly, hearing each commissioner official permanent disability total shall be deter- must come to a conclusion on the basis of exclusively by degree mined of whole assessment of medical the available body impairment medical that a claimant nonmedical information. The Guides has suffered.” This amendment altered situation, help such a but it resolve cannot Compensation the Workers’ Act in two provide complete definitive answers. First, ways significant to this case. after legal system Each administrative impairment 1995 doctors to make eval- permanent impairment as a uses basis for standardized, using uations body” “whole disability ratings should define its own words, impairment rating system other —in knowledge translating means for about an they are to American use the Medical As- impairment degree an into estimate sociation’s Guides to Evaluation of impairment to which limits the individ- Impairment, Permanent Fourth Edition social, capacity personal, ual’s to meet oc- (1993). Second, the Commissioner is to cupational, and demands or to other meet permanent partial disability make awards statutory requirements. solely impair- on the basis of the doctor’s clearly emphasized It un- must be way, ment evaluation. Put another percentages derstood that percentage of medical now according derived to Guides criteria equals permanent percentage partial should not be used make direct finan- disability, and the cannot Commissioner cial awards estimates of dis-. or direct into take consideration other factors. abilities.” Div., Wagner (bold 186, 191-92, provided [in Id. at text of
W.Va. 517 S.E.2d 288-89 1/4—1/5 ]). curiam) (Starcher J., (per concurring) Guides (footnote omitted). light against of the AMA’s admonition
Moreover, equated has of its Guides for evalua- the Commissioner exclusive use disability, question impairment rating permanent tion of conducted under this adopting equivalent disability of a the Commissioner’s wisdom standard be the rating permanent them. impairment. The au- *10 Richardson, propriately applied, then the examiner’s Blаnkenship v. rel. ex State 735-36, explain ba- report and the n. must document
W.Va.
Fourth,
Guides,
(1996) (quoting
from the
915-16,
opinion.
Deviations
n. 13
sis for
still have
original). While we
or the section
requirements
in
of the Guides
emphasis
a
system that makes
a
basis for
about
shall not be the
our concerns
6 substitutes
impairment
between
excluding
correlation
from consideration.
one-to-one
evidence
ques-
continue to
disability,
Rather,
while we
and
such instance such devia-
Guides,
employing the
of
determining
wisdom
tion the
tions shall be considered
contrary to the intent of
in a fashion
given
Fourth
to that
weight that will be
evi-
the
authors,
squarely
issue is
before
neither
example
acceptable
the
rec-
An
of an
dence.
Court,
today.
is before the
What
the Court
speciality group’s own
ognized medical
Guides,
adoption of the
is whether
Surgeons Man-
guides
“Orthopaedic
is the
mandatory
for
set of instructions
a
Fourth as
Physical Im-
Evaluating
ual
Permanent
of a claimant with
performing an examination
pairment.”
with our work-
injury is consistent
spinal
a
added)7.
85-16-4(1996)(emphasis
§
85 C.S.R.
law.
compensation
ers’
4—6(i)
extremely important
to note
find it
§
We
to the W: Va.Code
Pursuant
23—
to conduct
commands a doctor
(1999),
issued a rule
estab
the rule
Division6
injured
report “in
determining
compose
an
the examination
lished standards
permanent
impairment:
guides”
simply
degree of
accordance with the
worker’s
suggestions
or
contained
to use the models
Adoption of
§
Standards.
85-16-4.
Indeed,
of
publication.
the basis
provided for in section 6
Except as
4.1.
that,
excep-
argument
minus the
appellees’
is
rule,
date
and after the effective
of
rule,
specified in
the whole
tions
evaluations, examinations,
rule all
of this
section,
Guides, Fourth,
including
DRE
regard
opinions with
reports, and
performing
by any doctor
must be followed
body
whole
medical
permanent
degree of
on a claimant. As
result
examination
a claimant has suffered
essentially
phrasing,
has
the Division
composed
in аccor-
shall he conducted
rule,
incorporated by
into the
reference
to the Evaluation
the “Guides
dance with
Guides,
entirety
Fourth. While the
(4th
ed.1993),
Impairment,”
Permanent
pages
hundred
publication runs some three
by
American Medical
published
aspects
all
claim,
encompasses
any particular
inIf
Association.
many bodily systems,
are concerned
opinion
the examiner
injuries
spine.
In the
this case with
cannot
section 6 substitutes
or the
Guides
injuries,
dealing
spinal
impair-
section
applied or that an
appropriately
be
two methods of
Fourth describes
recognized
guide
ment
established
determining impairment.
is called the
group may
ap-
more
One
speciality
medical
expressly
legislative
it has been
ex-
rule because
21A-3-1
established
6. W. Va.Code
legislative .approval process.
empted
Performance Council
from the
Workers'
effective,
financially
efficient and
exempting
Appellees
"to ensure
the rule from
counter that
unemployment compensa-
operation of the
stable
equivalent
legisla-
approval process
sys-
system and the workers'
tion
tem the state
approval,
have
and thus the rule should still
tive
Virginia.”
of West
A later Code
Virginia
"the
of a
itself” West
Health
force
statute
(1993), gives
provision,
Va.Code
21A-3-7
W.
Hosp.,
v. Boone Memorial
Care Cost ReviewAuth.
power
[r]eview
Council
"to
the Performance
W.Va.
it is mechanical set rules that First, quoted, we we note the section “y.” “x” doctor to but consider exclude supra, degree permanent states that “the controlling aspect disability permanent It is with this total disabili- other than Guides, appellants exclusively by strongly ty Fourth that most shall be determined disagree. Appellants point degree body out that several whole medical Gtddes, appear commands of the Fourth that a claimant has W. Ya.Code suffered.” added). 4—6(i)(1999) specific (emphasis conflict with dictates of We be- 23— 3.3, p. applicable 8. Prior editions of contain Fourth 94. While the Guides did not issue, DRE Model. knowledged "It case note that the AMA As the authors noted is ac- nonetheless Guides, approach has the fifth that the is different from since released edition editions, previous Guides future a much modified version of the contains Model, developments may ranges lead to refinement or DRE broader for each cate- altogether.” gory spine impairment. different recommendation implies any rating are left with a nonsensical command “has suffered” lieve *12 Although during impairment made conflicts with the statute. partial must be permanent Court, par- argument oral before this has healed as much the claimant certain when is, Furthermore, prac- suggests ties that this command intimated Code possible. tice, it impairment rating ignored, ignoring we note that doesn’t partial permanent that the Thus, disappear'. that he make it we believe injured must be made after an worker aspect of the DRE conflicts with degree the maximum Model has reached or she (1995) 23-4-6(i) §§ W. 23-4-7a improvement. Va.Code (1999). (c) treating physician authorized When the claimant has either concludes Appellants argue also that the DRE Mod- maximum degree his her el, Guides, Fourth, or reached is forth in the set ready disability eval- improvement or is geared single rating toward incident more uation, or claimant has when the returned spine, and to purports traumas to the exclude work, treating physician to such authorized any injury appears over time. permanent partial dis- may a recommend attempts Injury Model to [the DRE] impairment ability for residual re- award im- physiologic and structural document lating resulting compensa- from the pairments relating to other than insults injury. ble developmental findings, such as common (1) 23-4-7a(c)(1995); accord, spondylolysis, normally § found in 7% of Dal- W. Va.Code 473, (2) 471, adults; spondylolisthesis, found in Spieler, 401 ton v. 184 W.Va. S.E.2d 10(3) 3%; (1990). Clearly, disk without radiculo- section herniated Code impairment rating pathy, an found more than 30% of individu- contemplate not dоes years; changes, als age aging claimant’s upon based condition made age injury, or even at some after common 40% of adults after the time time years. prior reaching injury that is maximum However, its degree improvement. (footnotes Guides, Fourth, 3.3d, p. 100
face, suggests DRE an Model once added). omitted) (footnote anal- This sort of made, subsequent is impairment estimate ysis inappropriate a workers’ would be where injury impi’ovement or treatment injury has occurred over time. We have initial change estimate. should made “An who in- employee clear that: is DRE], surgery Injury [the Model With jured gradually by reason of the duties impairment modify does not to treat employment eventually disabled becomes estimate, original which re- is, law, our workmen’s under spite changes mains the same personal injury recipient no less the of a than signs symptoms or follow the single disabling one who suffers a trauma.” irrespective of surgery and whether the Syl. pt. Compensation Lilly v. Workmen’s patient has re- a favorable unfavorable Commissioner, W.Va.
sponse to treatment.
(1976); accord,
Syl.
pt.
Sansom
Commissioner,
Compensation
Workers’
Guides,
3.3d, p.
Although
100.
Fourth at
W.Va.
have
Syl. pt.
Judges
D. The
Compensa
Lambert v. Workers’
Office of
Division,
211 W.Va.
who to apрear claim would (b) (c), ant to subdivisions section sev- by Moreover, to language. be blocked this en, three, chapter article twenty-one-a of if accept appellees’ even we argument code, judges the office of shall from language ignored can be or ex- time to promulgate practice time rules of plained, a claimant evaluated under the DRE procedure hearing for the and deter- attempts who reopen Model still faces the objections mination of all findings or challenge enormous getting out of the orders of compensation the workers’ divi- category “box” or rating. his or her initial pursuant sion to section one this article. The judges office of shall not have the problem This same also befalls a claimant power promulgate or to legisla- initiate who attempt reopen does not change for a phrase tive rules as that is defined in injury, injured in an simply but is a second three, chapter twenty-nine-a article of said separate time in a pro- incident. The Code code. vides for compensation additional for claim- 23-5-8(e) (2001). § W. Va.Code We impaired ants who become also further as a result provides note that See, the Code injury. of a the chief admin- second W. Va.Code 23-4- 6(d) (1999). judge istrative law authority broad puts Because DRE a claim- powers another, may necessary exercise such as category ant in be one or his her proper for the rating percent, will administrative review dis- percent, per- be 5 cent, puted claims. percent, etc. Once rated at 5 for exam-
ple, a claimant enough must suffer a severe judge chief administrative law shall injury second quantum to make the leap power continue to have the to hear and percent category between the 5 and the 10 disputed determine all claims in accor- percent Thus, eategoi-y. a claimant prоvisions article, whose dance with the of this injury second under the ROM Model procedure would establish a hearing him percent claims, have moved or her from disputed oaths, to 7 take wit- examine percent, nesses, would percent remain stuck at 5 subpoenas, issue establish the Thus, fees, under the DRE Model. there is effec- keep amount of witness such records tively no injury for a second reports necessary make such as are Incorporation Reference E. such addi- claims and exercise disputed including delegation of powers,
tional argue might the use Some judges law powers to administrative imper Fourth amounts to an necessary may be hearing Legislature’s pow examiners delegation of the missible doctors and group of a to a of non-elected proper conduct er for the However, delega experts. we note disputed claims. review of administrative authority agency for rule-mak tion of judge law shall administrative The chief ing purposes permitted. It is clear that requested of reports as make such may delegate pow certain compensation programs by the him or her “ agency: responsibilities to an ‘The ers or performance council. legislature of broad dis delegation 23-5-8(f) W. Va.Code cretionary powers to an administrative body, accompanied fitting standards for argue that the decision Appellees still exercise, is not of itself unconstitution their Cottrell, policy subsequent memoran- Syllabus, Chapman v. Hunt al.’ Point 8 dum, binding precedent on act could not *14 Virginia, Housing Authority, ington, West Division, judges, law other administrative [, Syl. ].” 121 319 3 502 W.Va. S.E.2d argue that Appeal Appellants or the Board. 5, pt. rel. W. Va. Dev. Fund State ex Hous. was never policy memorandum the Cottrell 636, 171 Copenhaver, v. fashion, applied in that but to be intended incorporation that 545 And we note litigants all that provided notice to rather by Legisla of a standard not created relying upon provided the DRE permitted, ture is the stan medical evaluations changes dard is static. Because of made support finding a unreliable to Model were Guides, might argue that some degree of regarding a claimant’s apply proper of action would be to course Thus, only. they Judges, of before the Office language of most recent version. promulgate argue, did this memorandum However, already adopted changes to an by legislative defense a rule as asserted “automatically.” standard cannot be made precedent nor it a be- counsel did establish Dakota, relevant In a case from North That Appeal Board. is fore the Division or required statute examinations be conducted say, policy argue appellants, memoran- in accordance with “the most recent edition” necessary precisely dum about Cottrell was of On the date of the statute’s the Guides. did not have because the decision Cottrell enactment, most recent edition was the precedential value. Guides, third edition of the but when revised 1994, worker was evaluated § We concur that W. Va.Code 23- Guides, Fourth was the most recent edition. 5-8(f) (2001) administrative gives the chief percent worker received a 20 evaluation The authority manage judge law broad cases Model, but from his doctor under the ROM agree Judges.11 of We before the Office by him had evaluated another the Bureau policy appellees that neither memoran Model, DRE doctor under the resulted dum, by Judges nor a the Office of decision percent. impairment rating in an of 10 Appeal can bind Division or the Board appealed Supreme worker and the Court claims, authority all but we find no future that, incorporation North Dakota while held prohibit that would the chief administrative existing permissible, an standard is enacting policy judge from a uniform attempted adoption law aof future standard to follow. would be unconstitutional. his or her office (1999) empowers ings.'' an W. Va.Code 6-9A-11 11. We also note that is not uncommon for issue, advisory opinions deciding agency, to issue on when an subcommittee administrative concerning governmental meetings. rely questions upon internal decisions that share similar provides opinion questions While the that "the shall or of law. For exam- statute factual situations (1999), binding parties requesting opinion" ple, be on tire W. Va.Code 6-9A-10 creates Commission, practice Virginia it clear that the of that committee is Ethics a subcom- existing questions, if Virginia apply decisions to new commis- its mittee called the "West ethics point. existing open governmental decision is on sion committee rneet-
101
an
other courts hold
a statute
association to create
Numerous
standard because
adoption
attempts
incorporate
statute made a valid
future
a standard
existence.)
statute, code,
already
regula
changes of another
tion, standard,
guideline
unconsti
However,
permissible,
incorpo-
while
delegation
legislative power.
tutional
publication
ration of a
like the
See,
Plumbing
e.g., International Ass’n of
Fourth is far
than
more troublesome
v.
and Mechanical
data,
Officials
California
incorporation
pure
printed
or a
Comm’n,
Bldg.
55 Cal.App.4th
Standards
chart,
of impairment
schedule
values.12
(1997);
245,
129,
Cal.Rptr.2d
People
134
64
lawyers
Statutes
rules are written
Bd.,
802,
Ill.App.3d
v.
Control
Pollution
understanding
with the
writ-
word
928,
352,
932-933
N.E.2d
Ill.Dec.
subject
may eventually
ten
to construction
(1980);
v.
356-357
Kansas
Gumbhir
State
Thus,
lawyers.
or attack
other
statutes
Pharmacy,
Bd.
228 Kan.
618 P.2d
generally
very specific
have
rules
defini-
(1980);
842-843
Board
v.
Trustees
pains
tions and the authors take
to make
Baltimore,
City
317 Md.
562 A.2d
internally
unambigu-
them
consistent and as
(1989); Michigan
v.
Ass’n
possible.
ous as
An instruction manual writ-
Mfrs.
Disability Compensa
Director Workers’
usually
ten
doctors for doctors is not
Bureau,
Mich.App. 723,
352 composed with these concerns in mind.
(1984);
Lord,
Meyer
N.W.2d
Appellees argue
advantage
that the
(1978);
Or.App.
City
586 P.2d
objective
DRE is
it is somehow more
.
Lien, Inc.,
Chamberlain v R.E.
Indeed,
than the ROM.
the Guides state that
(S.D.1994); Indepen
N.W.2d
132-133
objec-
of the DRE is to counter
*15
purpose
State,
Community
dent
Bankers Ass’n v.
subjective:
tion that the ROM is too
(S.D.1984);
744
N.W.2d
Woodson
purposes of
One of the
is to
Guides
State,
95 Wash.2d
P.2d
to similar
lead
results when
clini-
different
(1980)....
agree
We
with those
tak
courts
impairments.
cians evaluate
and
illnesses
ing this view.
evaluating spine impairments, past
For
Compen-
McCabe v. North Dakota Workers
system
editions have
a
Guides
used
based
Bureau,
sation
567 N.W.2d
204-05
assessing
degree
spine
on
of
motion
(N.D.1997).
assigning
percentages
and
ac-
cording
Impair-
to
of
limitations motion.
that,
The distinction is
when an ex
percents
range
to
of mo-
ment
related
reference,
isting
incorporated by
standard is
percents
tion were to be combined with
presumption
legislature
there is
that a
diagnoses
therapeutic ap-
on
or
based
entirety
familiar with that
in its
standard
and
proaches
neurologic impairments.
and
approves
However, by attempting
of it.
to
range
sys-
concern with the
of
One
motion
standard,
incorporate
plus
a
modifica
it,
in applying
has
tem
been that
other
legislature
might undergo,
tions it
a
is dele
diagnostic
data
information
clinical
and
authority
gating its
au
the non-elected
ignored.
physicians
tend to be
Also some
standard,
change
thors of the
who could then
accuracy
and
are concerned about
re-
way
contemplated
the standard
some
not
measurements,
producibility
mobility
of
See,
legislature.
Michigan
Mfrs.
system
while others believe the
fails to
Disability
Ass’n v. Director
of
aging.
of
account
the effects
Bureau,
Mich.App.
(1984) (statute
However,
Guides,
p.
Fourth
94.
N.W.2d
was
3.3.
impermissible delegation
important
spinal
of authority to
find it
that the
restate
upon
intelligent
have remarked
of statutes without full
consider-
observers
.Other
shortcomings
incorporation
of
reference:
ation.
may
Siegel,
Histоry
[Incorporation
complicate
Legislative
R.
reference
Jonathan
The.Use of
meaning
ascertaining
legisla-
Powers,
of
System Separated
task of
in a
53 Vand. L.Rev.
of
tion; may permit
passage
(2000) (footnote omitted)
it
statutes that
(citing,
garnered majority support if
could not have
Read,
Legislation
Emerson
Is
Horace
Referential
incorporated
fully
the effects of
texts were
While?,
(1941)).
25 Minn. L.Rev.
Worth
understood;
passage
promote
and it
motion)
(e.g.,
Guides,
qualities
range of
are
simply
Fourth is not
a
level
section
(2)
measurement, and
imply
is a set
to the
a
the name would
relevant
“guide” as
—it
quality
uni-
degree
followed. While a
about what
instructions to be
decision
instructions,
face,
Similarly,
on its
would
norm.
a
will serve as the
whole-
form set
(1)
objectivity
degree
requires
person
to offer some
appear
evaluation
examinations,
qualities
must be convinced that .the
what activities or
one
about
decision
measurement,
that set of instructions
that created
process
are
to the
relevant
reasonable,
objective,
impartial.
ability
was itself
will
decision about what levels
the DRE is
remain unconvinced
We
norm.
serve as the
objective. As
perfectly
one scholar'
somehow
dooms
The need for these decisions
wrong
it
explained,
assume that
has
its impairment
claims that
evalua-
Guides’
perfect
are
flawless.
somehow
Guides
objective
purely medi-
tion scheme is
objective,
not the
Guides is
medical
[T]he
appealing
cal.
claims
most
These
seem
system
purports
evaluative
impair-
respect
organ-level
to some
with
appealing
legisla-
has
so
and that
been
ments,
orthopedic
as those
Instead,
and other
makers.
tors
decision
extremities,
argue that
might
where one
scheme,
any impairment rating
it rests
like
qualities
exists on
basic consensus
part
large
important and
difficult
(such
range
as the norm
should serve
judgments. Yet the
ob-
normаtive
Guides
motion).
argument
But
does not
even this
x*eader;
it is laden
scures
objectivity
justify
claims of
the Guides’
explained
poorly
hidden or
value
ñatee.
of its medical
frequently
judgments
gender-bi-
are
(footnote omitted).
short,
Id.
968-69
promises
The Guides’ flawed
of ob-
ased.
Commissioner, in
with the Per-
concert
jectivity
especially troubling
because
may,
bounds
Council
within the
formance
craving of
they appeal
legislators
authority, adopt
of their
them
the standard
certainty
other decision makers
choosing, but we must
remember
clarity in
impair-
arena
the difficult
Guides,
into
Fourth
our
introduction
By
disability
assessment.
uncri-
ment
was not ac-
tically embracing the
these deci-
bush,
*16
companied
burning
by a
or even direct
delegate significant
makers
normative
sion
Thus,
Legislature.
action
when we
of the
to
decisions
the book’s medical authors.
existing
find it to be in conflict with our
Pryor, Flawed Promises: A
Ellen Smith
law,
statutory
must
to the
we
adhere
law.
the American Medical
Critical Evaluation of
question
is no
that when
There
to the Evaluation
Association’s Guides
agency
an
into conflict with
the rules of
come
Impairment, 103 Harv. L.Rev.
Permanent
a
that the statute must control:
statute
(1990) (footnote omitted).13
964, 965-66
regulations
Any
drafted
an
rules
course,
Legislature
adopt any
can
Of
faithfully
agency must
the intention
reflect
wants,
system it
within
ambit of our
in
Legislature,
expressed
of the
as
constitution,
injuries,
impair-
to evaluate
controlling legislation.
a
Where
statute
ments,
recog-
But we
or disabilities.
must
language,
unambiguous
clear and
contains
labeling
merely
that
an
nize
evaluation
give
must
agency’s
regulations
an
rules or
objective
system
making
and
uniform
unambig-
language
that
clear and
same
application of it does not somehow make
language
uous force
effect that
perfect
that
a
one.
in the
commands
statute.
measurement,
This vast
literature
4,
Syl. pt.
University
implicitly,
point:
a critical
it is
Maikotter v.
West
least
makes
Bd,
Virginia
Virginia
impossible
impair-
define
mеasure
Trustees/West
level)
691,
(1999).
(both
Univ.,
802
whole-person
206 W.Va.
organ
ment
Hence,
“Although
agency may
an
except in
to some
Or
other words:
relation
norm.
regula-
promulgate
have
organ-level impairment
power
evaluation re-
rules
(1)
tions,
regulations
quires
organ-
a
must be rea-
about what
the rules
decision
4, supra.
Pryor
singular.
13. Professor
See footnote
chose to refer to the Guides
573,
by Virginia,
and conform to the laws enacted
sonable
W.Va.
466 S.E.2d
Legislature.”
Anderson & Anderson
Contractors,
Latimer,
Inc. v.
W.Va.
apply
must
same
We
standard
807-08,
(citing
257 S.E.2d
Thus,
the rule in this
a
case.
we hold that
Virginia
Sheppe v.
Bd.
West
Dental
promulgated by
rule
compensa
the workers’
Exmrs.,
er to make
rules
agency
ment the statute
under
The DRE Model for the evaluation
exercising
power,
functions.
how-
spinal injuries
conflicts with our law
ever,
an
agency
administrative
disagrees
several
DRE
areas. The
with stat
regulation
issue
which is inconsistent
proper
utes
control: the
time for mak
with,
statutory
or which alters or limits its
ing
impairment rating,
proper
treat
authority.
injuries,
progressive
procedure
ment of
Syl. pt
Dept.
Rowe v. W. Va.
Correc
claim,
reopening
consideration
tions,
(1982);
170 W.Va.
adopted have resulted “objective” medical, reports for all rules psychiatric, once and and vocational determine produce a “fair” result. phrase stating claimant procedures magical or for “the thing no what is clear: matter totally But one permanently disabled rules, procedures, or stan guides, magical sort of employment,”... future If the may or Commissioner included, dards the words have not been the content yield or “correct” adopt, can an “exact” none report appears to often disre- to disability or that is estimate of garded discourage specifically [W]e .... disabilities, rating of beyond reproach. “The compete on buzzwords contained reliance legislative precision or medical regardless of Instead, Divi- in medical evaluations. expertise, an inexact science.” remains Grif look at as a whole sion should the record Compensation v. Workmen’s State give actual due consideration fith 837, 843, Comm’r, 157 W.Va. S.E.2d reports to content of medical determine (1974); Accord, Miracle v. Workers’ they support PTD finding whether 443, 446, Comm’r, Compensation thus, may, indicate the onset thereof. (1989); S.E.2d Lambert Work Compensation Divi- Lambert v. Workers’ Division, Compensation ers’ W.Va. sion, W.Va. (2002). S.E.2d 573 again encourage the Division We that, quest also in a We are concerned whole, at a as a and to look claimant’s record predictability, partici- bright rules and line upon “magic a simplistic resist review based compensation system pants in the workers’ words.” phrases or latch onto “buzzwords” any We that most sen- decide a case. fear IV. this, opinion, fas- or could be tence Commissioner, upon by the Office of tened CONCLUSION
Judges, Appeal and be imbued with Board powers employed almost magical near stated, judgment For the reasons “open lock” spell incantation that can Compensation Appeal Board is the Workers’ compensation. seeking for a claimant We reversed, and these cases are remanded discourage can to wish to do all we proceedings opin- with this further consistent words,” recently “magic use ion. concerning permanent total noted in a case disability claims: Reversed remanded. years, liability Virginia’s rates Com- three West continue The unfunded ultimately pensation substantially lag Fund the result of the Ac- behind national norms. premiums adequate failure to collect order study cording to a 1994 undertaken promises pay made to benefits to fund the Oregon Department of Consumer and Business Notably indisputably, premi- workers. Services, premiums Virginia's West ranked charged subscribing employers um levels (46th) premium near bottom in cost Virginia comparatively have been low 1994—after the rate increases 1989 -1993. mid-1980s, compared when national- since the consistently Other similar results. studies show
ly region. the Moore or within Emily Spieler, Assessing A. Fairness in Workers’ premium reduce Administration chose to rates Commentary A on the Reform: *18 premiums percent 30 and to freeze the Compensation Legis Virginia 1995 West illegal Premium this unsound—and —level. lation, 23, (1995)(foot- 98 W. Va. L.Rev. 84-85 adjusted until rates were not 1989. While omitted) (emphasis original). have *19 Smith, Dunlap quoted Legislature, Regular 1. the Ses- Elliot in Louis M. 2. See 1913 Acts of Brown, Soc’y Legal Autopsy, sion, J. Am. Judicature c. 10. (June 1955). by by posed promulgated or the commissioner office stat- expressly granted the powers powers compensa- ute, operation additional of the the of workers’ but also filing nature as are system administrative tion of the rules and procedural or before necessary secretary as a incident reasonably implied regulations with of state.” W. offiсe.”)- 21A-3-7(c). powers of the See expressed § Va.Code (1995) 23-l-13(a) (Repl. § W. Va.Code also function, rule-making of pursuit In this (“The Vol.1998) compensation divi- Council, Commissioner and the Performance proper rules adopt reasonable and sion shall Panel, Advisory by the Health Care informed ... regulate provide for and procedure, of Impair- adopted “Guidelines Permanent proofs and nature and extent of the Evidence, Evaluations, Ratings.” ment and evidence, taking of and furnish- the method 85-16-1, seq. § As Va.C.S.R. et it See W. rights to bene- ing the same to establish the appeal, to the instant these rules relates fund ... or compensation from the fits or specifically direct ..., employers directly and method this on and after effective date of rule making investigations, physical examina- evaluations, examinations, § reports, W. 23- all and inspections^]”); and Va.Code tions (“The 6(i)(1999) (Supp.2001) per- workers’ com- opinions regard degree with to the 4— adopt shall standards for pensation body division medical manent whole claimants and the determi- the evaluation a claimant has shall suffered body degree of whole of a claimant’s nation composed in conducted and accordance impairment.”). medical to the of Per- with the “Guides Evaluation (4th ed.1993), Impairment,” manent adoption of such To facilitate the rules published American Associ- Medical determinations, disability regulations for ation[.] Legislature authorized the Commissioner Advisory the Health Care Panel create short, § W. 85-16-4.1 Va.C.S.R. protocols of] “[e]stablish[ment assist with the practical regulation of this is to effect performance procedures for exam- examining physicians require evaluate performed physi- inations evaluations according Diagnosis-Related claimants to the W. Va.Code examiners[.]” cians or medical [hereinafter Estimates referred (1990) 23-4-3b(b) (Repl.Vol.1998). § Simi- opposed Range “DRE”] model as to the larly, Legislaturе established the Com- [hereinafter “ROM”] Motion referred to as Council, pensation Programs Performance model.4 to as the “Performance referred [hereinafter point, agree majority’s I with To (1993) § 21A-3-1 Va.Code Council”] W. However, beyond juncture analysis. it is (Repl.Vol.1996), to further assist the Com- part ways my colleagues with I must development of such crite- missioner with disagree reasoning with and resul- their legislation ria and to and es- “[r]ecommend holdings. according tant Rather than defer- designed to regulations tablish ensure and its attendant ence viability and financial effective administration charged administering with entities West ... the workers’ 21A-3-7(b) compensation system, Virginia workers’ Virginia.” § W. Va.Code (1993) upon impermissibly Court takes itself sit (Repl.Vol.1996).3 Performance The superiegislature replace additionally as a the Com- charged with “[Re- Council rejection] guidelines well-informed approval], missioner’s its view modifica- regulations preferred pro- method of evaluation of] rules ap- present Bailey, F. the Performance Council are Council’s members are Gene 3. Members of Governor, "by Jarrett, pointed and with advice Humphreys, W. Chris E. John L. Richard the Senate.” W. Va.Code 21A- Phalen, and consent of 3-2 Johnson, Merritt, Douglas W. Ev- Robert particular, (Repl.Vol.1996). In "[t]he Sullivan, Thompson, E. erette E. Paul Com- compensation programs performance council missioner Robert J. Smith. representing of nine members: Four shall consist the employees; representing the four interests of the DRE and For further discussion ROM employers; interests and the commissioner models, B, see Section infra. employment programs.” W. Va. the bureau of (1993) (Repl.Vol.1996). Code 21A-3-3
107 omitted). Furthermore, injury v. spinal respect claims. See Lewis Ca- citation with Resorts, Inc., 684, Valley hand, 185 W.Va. presently naan to the scenario at have we (1991) (“[T]he 634, 692, judi- S.E.2d 642 408 held that may ciary superlegislature not sit as a to [interpretations as to meaning desirability legislative of judge the wisdom or appliсation compensation of workers’ stat- policy in areas that determinations made nei- by utes Compensa- rendered the Workers’ proceed, rights affect fundamental nor ther Commissioner, governmental as the suspect City along (citing lines.” Neva Or- charged official with the administration Dukes, 297, 303, 427 96 leans v. U.S. S.Ct. and enforcement of the compen- 2517, (1976) 2513, 511, (per 49 L.Ed.2d 517 State, statutory sation pursuant law this curiam))); Merritt, Boyd 474, v. 177 atW.Va. (1997) to W. (Repl.Vol. Va.Code 23-1-1 (“This S.E.2d Court does sit as 1998), should be accorded if deference such superlegislature, pass a to commissioned interpretations leg- are consistent with social, political, upon the economic scienti- plain meaning ordinary islation’s con- pertaining proper fic merits statutes to subjects legislation. duty struction. It is the facts,
legislature
policy,
consider
establish
4,
Syl. pt.
Indus.,
rel.
State ex
ACF
Inc. v.
embody
policy legislation.”).
Vieweg, 204 W.Va.
ty,
on the
majority additionally,
incorrectly,
The
findings.
component
clinical
The other
is
argues that
only
the DRE model can
be
Model,”
“Range
the
described
Motion
prior
reaching
used
to a claimant
his/her
previous
above
recommended
improvement
maximum medical
[hereinafter
Quides editions.
support
referred to as
To
“MMI”].
this as-
sertion,
majority has
passage
the
taken a
categories
Inju-
eight
If none оf the
of the
from the Guides out
context.
In this
ry
applicable,
is
then
[DRE] Model
the
respect, my colleagues contend that
the
Range
should
of Motion
evaluator
use the
’
“surgery
that
Gtddes
statement
to treat
Model.
impairment
modify
original
not
im-
does
the
persons
impairments
All
evaluating
ac- pairment
under the DRE
estimate”
model
Quides
cording to
criteria
cautioned
actually means that
DRE
model can
approach
that either
the other
one or
prior
reaching
be used
to a claimant
MMI.
making
impair-
be used in
the final
should
is
explicitly,
This
absurd.
Guides
The
un-
However, if disagree-
ment estimate....
equivocally,
repeatedly emphasize
that
category
Inju-
ment exists about
prior
the claimant must
MMI
being
reach
to
impairment
ry
patient’s
Model in which a
See,
impairment.
e.g.,
evaluated
Guides
belongs,
Range
then
of Motion
Model
3.3,
(“It
emphasized
§
at 94
is
if an
applied
provide
be
to
evidence on the
impairment
accepted
is to
evaluation
question.
criteria,
impair-
valid under the Guides
(endnote omitted)
3.3,
(em-
at 94
Guides
being
pemianent
ment
be a
evaluated should
Thus,
original).
apparent
it is
phasis
one,
is,
stable, unlikely
one that
is
to
Quides
advocate the use
the DRE change
year,
within the next
and not amena-
it
than
model because
is more reliable
surgical
to
or
therapy[.]”
ble
further medical
model,
yields
ROM
former
which
inconsistent
fact,
(emphasis in
In
original)).
the Guides
reproduce
results
are difficult to
when a
specifically contemplate that the claimant not
variety
by
physi-
claimant is
examined
rating
receive a
and until
con-
unless
his/her
non-compensa-
and fails
cians
to account for
stabilized,
unlikely
change
is
dition has
may aggravate
conditions that
the com-
ble
year,
within the next
and is not amenable to
injury.
pensable
therapy.
surgical
further medical or
id.
See
’
spite
promote
passage
upon by
majority
In
efforts to
relied
was
Guides
disability ratings,
extrapolаted
larger
accurate and reliable
from a
discussion which
majority
principles
adopts
attempts
that the DRE model
forsakes such
elucidates
claim,
because, they
physiologic
impair-
and structural
ROM model
the rule
document
liberality
relying
upon
Reaching
especially
result.
ments
evidence of
dictates such a
uncommon,
conclusion, however,
majority
neurologic
fails
deficits and
adverse
according
appreciate
very
changes
to clinical find-
direct
concise
structural
ings
using
language of the
which counsels exam-
are verifiable
standard medi-
Guides
context,
procedures.
employ
one or
cal
In the same
iners
“either
the other
...
making
developmental
the final
intend that common
approach
Guides
findings
general
permits
public
estimate” and
be made
affect
reference
in a
disagreement
not
DRE
to the ROM model
ex-
should
be included
where
rating,
changes
signs
diagnosis.
symp-
nor
ists as to
definite DRE
Guides
should
3.3,
Thus,
original).
injury
(emphasis
at 94
it
toms that do not result
but
that,
subjec-
apparent
majority
rather from the individual claimant’s
insofar as
words,
noted,
injury.
compensa-
As
other
earlier
response
tive
of this
was created
State
from im-
model intends
remove
the DRE
inception,
At its
in 1913.8
was
those
pairment
conditions
consideration
clearly
compensa-
that the workers’
intended
population,
vastly
general
as a
affect
construed,
liberally
tion scheme would be
of non-work related factors
natural result
following provision
demonstrated
obesity, and lethargy. The
aging,
such as
founding
from the
Act:
however,
appreciate
fails to
majority,
commission shall
be bound
[The]
distinction.
statutory
the usual common law or
rules
Liberality
Rule of
C.
evidence,
by any
technical or formal
pro-
*23
than
procedure,
rules of
other
herein
majori-
apparent in
The final mistake
the
vided,
may
investigation
the
in
but
make
interpretation
in
ty’s reasoning is
its
and
judgment
in
as
its
is best
manner
libеrality
in
application of the rule
work-
the substantial
calculated
ascertain
proceedings.
compensation
in-
ers’
Liberal
rights
parties
carry
just-
of the
and to
out
terpretation
“[interpre-
has been defined as
ly
liberally
spirit
and
the
this act.
according
the
tation
to what
reader believes
Legislature, Regular
1913
Acts
the
Ses-
if,
intended,
reasonably
even
author
added).9
sion,
10,
(emphasis
§
c.
44
The
inadvertence,
through
the author failed to
legislative
to construe the workers’
direction
(7th
Dictionary
think
Black’s Law
of it.”
liberally
by
compensation statutes
was noted
added).
ed.1999)
case,
In
(emphasis
this
Ott,
this Court in Poccardi v.
wherein the
compensation
well as in other workers’
cases
following
were made:
observations
by
Court,7
recently handed down
The statute itself relaxes the common
grossly
majority has
overextended the rule of
statutory
law
and
rules
evidence and
sight
liberality, and has lost
of the reason-
and
abolishes the technical
formal rules
component
spe-
of the rule. Before
ableness
procedure
expressly
than those
re-
other
cifically
majority
explaining how the
has mis-
tained,
requires
and
each claim to
inves-
be
liberality
applied
rule of
in the instant
tigated
in such manner
best be
n
case,
briefly
history
I
pause
examine the
to ascertain the substantial
calculated
development
rights
and
of the rule
parties
justly
our workers’
and
of the
and liberal-
compensation jurisprudence.
ly
spirit
purpose
and
its
effectuate
actually
applications
system.
ployees
6.
two
the lib
There are
to contribute funds
erality
compensa
regard,
Legislature expressly provided
in the context of
rule
workers'
tion,
matters,
evidentiary
related to
one that is
"[t]he commission shall establish a workmen’s
interpretation
pertaining
compensation
and one
of work
premiums paid
fund from
thereto
compensation
ers'
statutes. See Javins v. Work
by employers
employe[e]s”
and
of the
Acts
Comm’r,
747, 758,
Comp.
173 W.Va.
ers'
Session,
10,
Legislature, Regular
c.
The
19.
("The
(1984)
time-honored lib
required
Workmen's
Act further
erality
statutory
a rule of
rule is not
con
"premiums provided
for in this
...
act shall
struction,
(cita
evidentiary
but
also
rule.”
ninety
proportion
per
be contributed in
cent
omitted)).
tions
This discussion addresses both.
by
per
employers
ten
em-
and
cent
ploye[e]s.”
Legislature, Regular
of the
1913 Acts
Smith,
Session,
7. See
ex rel.
v.
212 W.Va.
Accompanying
State
require-
McKenzie
c.
24.
(2002),
Skaggs
m
code,14
object
compensation
provisions.
years
Its
beneficent and
ers’
three
later
bountiful,
provisions
gener-
broad
its
the Court
reaffirmed
nevertheless
the lib-
....
not to
ous
Strict rules are
obtain to
erality
by recognizing
rule
the detriment of a claimant
violation of
[cjompensation
being highly
acts
remedi-
purposes.
these wholesome
character,
al in
though
derogation
(1918)
500-01,
82 W.Va.
S.E.
law,
common
liberally
should be
added.).
(emphasis
passage
above
broadly construed to effect them beneficent
represents
comprehensive
Poccardi
first
purpose, State ex
Duluth
rel.
v. District
statement
the Court10
the workers’
Court,
129 Minn.
Div.,
531 S.E.2d
Commissioner,
ally adopted
has im-
curiam)
C.J.,
(Starcher,
concur
(per
that of
posed
judgment
its own
over
(“Under
liberality/ a claim
the Tule of
ring)
Commissioner,
Legislature, the
and the Per-
supposed
given
to be
the benefit
all
ant
doing,
majority
formance Council. In so
that can be drawn
inferences
reasonable
rejected regulations
permitted
has
flexi-
in support of his or her
the evidence
part
bility
physicians
on the
to use the
added)).
(emphasis
courts sim
claim.”
Other
likely
in an
that would most
result
accu-
test
limitations, and
ilarly have observed such
rate determination of the level
recognized
reasonableness
also have
imposed
arising
injury,
from a back
in its
accompanies
liberality
rule.
standard
test,
stead the ROM
which has been deemed
Indeed,
been
it has
said
largely
very profession
unreliable
re-
liberality
beyond
not ...
should
extend
development.
for its
sponsible
There
*25
clearly expressed language
[stat-
of th[e]
nothing
compensation
in the workers’
statu-
utes],
may
enlarge
and our courts
not
the
upon
tory
this action
scheme
which
meaning
ordinary
the
the terms used
reasonably
majority was
based. The
obvi-
legislature
engage
method of ously
goal
granting
motivated
the
judicial
[Consequently,
the
legislation....
compensation
highest
workers’
claimants the
upon
judiciary
ingrafting
should avoid
a possible disability rating regardless of the
omitted,
something that has been
law
realities of them
conditions.
medical
ought to have been em-
[it]
believes
past,
consistently
In the
Court has
braced.
principle
liberality
that “the
adhered
Expert
Lawn & Tree
Deese v. Southeastern
taking
place
cannot be
rule
considered as
140,
Co.,
275, 277-78,
306
293 S.E.2d
N.C.
proper
satisfactory proof.”
Bilchak v.
(1982) (citations
quotation
143
and internal
Comm’r,
Comp.
Workmen’s
153
State
W.Va.
omitted). Additionally, “courts are
marks
297,
(1969).
288,
723,
168
729
S.E.2d
Accord
guise
liberal construc
not free under
3,
Syl. pt.
Comp.
Clark v. State Workmen’s
compensation
tion to
worker’s
bene
extend
Comm’r,
726,
155
187 S.E.2d
W.Va.
213
reasonably
...
that do not
fall within the
fits
(1972);
Comp.
Smith v. State Workmen’s
Corman,
966,
re
P.2d
statute.” In
971 Comm’r,
883, 888,
838,
155 W.Va.
189 S.E.2d
(citation omitted) (emphasis add
(Wyo.1996)
curiam);
3,
(per
Syl. pt.
Staubs v.
ed). Simply put, “liberality of construction
Comm’r,
Comp.
State Workmen’s
W.Va.
to
proceed
point
not
to such a
should
337,
(1969); Dunlap
H3
ease,
refrain,
majority seemingly
tive to the courts —and con-
stitutionality of compensation the workers’ question. would into be called
Thacker, 207 W.Va. at at 74
(Starcher, (footnote C.J., concurring) omit-
ted). majority What the fails recognize,
however,
is that
phrases injured of an the assessment em-
ployee’s degree impairment. Although Cicero, Macklin, id., quoted Lawyer's at 44. quoted Charles Quotation
16. (John Reay-Smith Legal Companion A Book: ed„ 1991). notes in We premium country dra- levels аll rose over of a recent also noted that decision more 1990, Virginia’s matically to 1985 against governor pursue employ not to lawsuits premium artificially suppressed. rates were required may pay premi who have to ers failed Virginia levels in West have never Premium employees a serious ums their contract had regained they the level should and would have impact compen and deleterious on our workers’ had not attained reduction occurred. if See, ex rel. Constr. sation fund. State 1989, Virginia in Since increases West have Affiliated 687, Vieweg, 520 Trades Found. v. 205 W.Va. average not Be- overtaken national increases. J., Starcher, (1999)(McGraw, J. & S.E.2d 854 in cause of the rate reduction 1985 dissenting). subsequent increase for over failure to rates 105 C.J., DAVIS, dissenting. pay benefits and that a claimant is payment authorized to demand of benefits (Filed 2002) 17, July only in such manner and such amounts only “[t]he It said that law is the has been by applicable as are authorized statutes.” profession which records its mistakes care- Co., v. Roberts Consolidation 208 W.Va. Coal occurred, fully, exactly yet they as does (2000) 218, 234, 478, (quoting 539 S.E.2d 494 identify mistakes[.]”1 not them as Truer Comm’r, v. Comp. Bounds State Workmen’s spoken majority’s words could not be 670, 675, 379, 153 172 W.Va. S.E.2d 382-83 where, judice decision in the ease sub (citations (additional (1970) omitted)) cita swoop, completely ignores one fell the Court omitted). statutory tions Due to the nature compensation the directives of workers’ compensation program, the workers’ legislation uphold which it to pro- claims Legislature possesses authority exclusive judgment own ceeds to substitute its in its fund, itself, compensation over the workers’ stead as to the most reliable indicator of an injured and the distribution such monies to injured compensable disability. claimant’s generally Lester workers. See v. State only majority successfully Not has the turned Comm’r, 299, Comp. Workmen’s 161 W.Va. liberality into a rule of rule of laissez- (1978) 315, 443, (“[T]he legis 242 S.E.2d 452 faire, recognize but it also has failed to modify power lature has the this state’s hurt, very ruling result this will rather program as it fit industrial insurance sees so injured help, than workers of this State. long no provision infring constitutional Accordingly, for the various reasons stated ed.”); Comp. Bailes v. State Workmen’s below, I dissent. 212, Comm’r, 210, 261, 161 W.Va. S.E.2d Compensation: A. Workers’ A (1968) (“The right compen to workmen’s Legislati vely-Administered wholly statutory sation is and is not in Program way based on the common law. The statutes controlling rights, are and the majority’s remedies and The first mistake with the rea- procedure provided by soning misunderstanding is its them are exclusive.” of the ñatee (citation omitted)). compensation legislatively legislatively created and admin- such power Legislature One exercises program. Legislature istered regard, subject this and which is the compensation created State’s workers’ judice, authority adopt ease sub is the system.2 As a legislation, result this regulations quantify- rules and to be used frequently recognized right have “[t]he ing injury into a claimant’s work-related compensation wholly to workmen’s benefits disability rating. compensable In further- statutory.” Syl. pt. part, Dunlap v. task, ance of this has dele- Dir., Comp. State W.Va. S.E.2d gated corresponding rule-making func- Merritt, Boyd Accord v. 177 tion Commissioner of Bureau (1986) W.Va. S.E.2d Programs Employment and the Workers’ (“The right to workers’ bene- Compensation Division W. Va. thereof. See statute!.]”). wholly a fits is creature of For (“The 1—1(b)(2000) (Supp.2001) Code 23— reason, this promulgate commissioner is authorized repeatedly by regulations provi- implement “[i]t has been held rules and right to compen- chapter.”); Court that the 21A- workmen’s sions of W. Va.Code (1996) statutes, 2-6(2) wholly (recognizing sation Com- (Supp.2001) benefits is based law; rules”); authority “promulgate no sense based on the common missioner’s generis Syl. Comp. pt. statutes are sui control- Smith State Workmen’s Comm’r, ling; rights, proce- that the remedies (“The exclusive; thereby provided dures State Workmen’s the commissioner is to award Commissioner authorized exercise