Rhodes v. Workers' Compensation Division

im- psychological inherent cuffs lies merely in fact jury, not

pact jury may suspect that the witness crime_[T]he jury is neces-

committed a appear-

sarily prejudiced against someone being

ing in restraints man, not to judge dangerous and one tasted, even under the surveillance

officers. omitted).

(Internal quotations

IV.

CONCLUSION foregoing, the conviction and

In view of the in this matter are reversed. The

sentence trial. for a new

ease remanded

Reversed Remanded. RHODES, Appellant,

Robert S.

WORKERS’ COMPENSATION and Anchor Glass

DIVISION

Container, Appellees.

No. 27831.

Supreme Appeals Court Virginia.

West

Submitted Oct. 11, 2000.

Decided Dec.

Concurring Opinion of Justice 24, 2001.

Scott Jan.

Dissenting Opinion of Justice 16, 2001.

Stareher Jan. Stultz, Weston, Bailey,

Robert L. Wilson & Appellant. for the Nancy Tyler, Employment Programs Liti- Unit, Charleston, gation Appellee. for the DAVIS, Justice: appeal In this from a decision of the Work- Board, Compensation Appeal ers’ Workers’ argues that his claim for benefits for improperly find that when a denied. We X-ray In its disclos- objects findings and conclusion an of the chest. party ing findings, the OP Board noted that Mr. Occupational Pneumoconiosis Compen- exposed hazard Rhodes had been dust made in connection with Workers’ twenty-two years as a approximately sation claim for benefits, addition, and submits new medical evidence glass plant worker. objection, in connection with the stated: 23-4-8c(d) (1993) requires (Repl.Vol.1998) § Physical examination shows the claimant objecting party to the burden of bear general in fair clinical condition. He is Occupational Pneumoconiosis questioning the any respiratory not distress at rest. regarding at the new medical evidence cage is well formed. There are Chest required. therein Because no harsh breath sounds. There are rales. prior procedure was not established wheezing present bilaterally. is mild There opinion, we this case and reverse good quality no Heart sounds are of with proceedings. remand for additional murmurs.

I. X-RAY INTERPRETATION: CHEST AND FACTUAL PROCEDURAL (cid:127)PA views of the chest are within normal

HISTORY appearance limits their with NO EVI- occupational pneumoconiosis DENCE of (hereinafter “Mr. Robert S. Rhodes identified. Rhodes”), appellant below here- in, employed by was Anchor Glass Container evaluation, As a result of its the OP Board “Anchor”) (hereinafter Keyser, West Vir- diagnosis no made OP. twenty-two years, ginia, approximately for upon diag- Based the OP Board’s failure to 1995, ending plant in October when the OP, Division, by nose order dated De- 29, 1998, April Liebig Dr. closed.1 On Carl 3, 1998, cember notified Mr. Rhodes that no diagnosed Mr. Rhodes with being granted. award of benefits was There- (hereinafter “OP”). Conse- after, January Ray Har- on Dr. A. quently, Liebig’s diagnosis based Dr. interpreted X-ray Board’s on ron history workplace Mr. dust Rhodes’ of Mr. Dr. Harron behalf Rhodes. indicated exposure, Mr. Rhodes filed a Workers’ Com- X-ray quality grade was one. His 30, July pensation claim for OP benefits. On X-ray also stated revealed 1998, Compensation Division the Workers’ parenchymal abnormalities consistent with (hereinafter Division”) “the issued a non- pneumoconiosis, pleural but no abnormalities stating that Mr. “Claim Decision” pneumoconiosis. consistent with Dr. Edward presumption Rhodes was entitled Aycoth X-ray also on read the OP “any respiratory disability chronic resulted reported film behalf of Mr. Rhodes and employment.”2 from Mr. [his] Rhodes quality grade Aycoth’s report Dr. one. then evaluated Pneumo- stated: further (hereinafter Board”) coniosis Board “OP heart, mediastinum, thorax, September bony 1998. The OP Board’s evalu- cos- patient history, physical tophrenic angles hemidiaphragms ation included examination, pulmonary function studies and within normal limits. employed exposure 1. Mr. her hazard Rhodes was Anchor’s batch date of his or last to such department. employee and tank and that such claimant or deceased disability, respiratory has sustained a chronic presumption

2. This is not conclusive. See W. presumed then it shall be that such claimant is 23-4-8c(b) (1993) (Repl.Vol.1998): Va.Code suffering employee or such deceased was suf- If it can be shown that the claimant or fering at the time of his or her death from employee exposed been deceased occupational pneumoconiosis which arose out inhaling particles hazard minute of dust employment. her of and in the course of his or resulting her the course of and from his or presumption This shall not be conclusive. years employment period during for a of ten added). (Emphasis years immediately preceding fifteen

H density opaci- There are scattered rounded cases. See measuring up [1,] to 3 mm. in ties diameter seq. CSR 20 et At final throughout lungs. lungs both are well August scheduled this matter on of active aerated free disease. the claim was submitted on the exist- ing record. Members of IMPRESSION: the Board were requested to review the evidence sub- 1/0, category p/q. Pneumoconiosis mitted the claimant and discuss the protested Mr. Rhodes the Division’s order reliability credibility Aycoth’s of Dr. OP, granting no award of benefits for report. This should not be cir- the case was submitted the Workers’ Com- Accordingly, cumvented. the Division’s (hereinafter pensation Office of Order affirmed. “OOJ”) support protest, review. of his appealed Mr. Rhodes then reports Mr. Rhodes submitted the his case to the of Drs. (here- Aycoth. Compensation Appeal Workers’ Harron and A pur- for the “WCAB”), pose adducing testimony seeking statutory inafter members five 11, percent August permanent partial of the OP Board was disability then held on award page 1999. The two transcript impairment pursuant from this OP without to W. 23-4-8e(b) (1993) §§ indicates that counsel for Mr. Va.Code (Repl.Vol. 1998)3 only attorney making Rhodes (Repl.Vol.1998).4 and 23-4-6a appearance. appeared 27, 2000, No By one for the em- April order dated the WCAB ployer or on OOJ, behalf the Division. Counsel incorpo- affirmed the order of the for Mr. question any same, Rhodes failed to reference, mem- rated the as its own ber of the In a OP Board. total of four lines findings of fact and conclusions of law. The transcript, simply the record notes the WCAB also indicated that its decision was style number, of the case and the claim Occupa- based its conclusion that “the that “[t]he states Claim will be submitted.” tional specifically Pneumoconiosis Board has Thereafter, by 8, 1999, order dated October that diagnosis found it ‘cannot make a affirming the OOJ announced its decision occupational pneumoconiosis.’ (Emphasis denying Commission’s order to Mr. added.) benefits firmly finding We that this believe part: Rhodes. The order stated is sufficient to pre- rebut the non-conclusive supports sumption The record Virginia § the Divi- found in West Code 23- 4-8c(b), justifies granting sion’s Order claimant no the Division’s refusal of occupational pneumoconiosis. statutory award for Finally, 5% award.” the WCAB explained: Sep- The Board examined the claimant on 24, 1998, tember and found that the chest Virginia § West Code 23-4-6a mandates

x-ray was within normal limits. This re- judges that “the office of affirm port supports is reliable and credible Occupational decision of the Pneumoconio- the Division’s Order. The claimant has following hearing sis Board made unless to show findings failed clearly wrong the decision is in view of the clearly wrong. Board are reliable, probative and substantial evidence x-ray

The claimant report nothing submitted the on the whole record.” We find Aycoth of Dr. Edward who the x- Occupational reviewed the evidence to show that the rays opined taken the Board and clearly wrong. Pneumoconiosis Board was pneu- contrary, the claimant suffered from minimal To the we find that as the record However, whole, moconiosis. statutory was not without man- even 23-4-6a, § submitted to the Board for review date West Code procedures comment as overwhelmingly, strong and reliable evi- supra employee 3. See note for text of W. Va.Code 23-4- tional board that an 8c(b). occupational pneumoconiosis, but without therefrom, pulmonary impairment measurable part: 4. W. Va.Code 23-4-6a states relevant employee paid such shall be awarded and [I]f it shall be determined the division in twenty weeks of benefits at the same benefit accordance with tire facts in the case and with provided. rate as hereinabove occupa- the advice and recommendation of the

dence, supports proof upon appeal the conclusion that which the board presumptive finding plainly wrong.’ is not entitled to acted that 2, statutory Syl. pt. award. Given the deference Jordan v. 5% State Workmen’s statute, Commissioner, required by which we are 156 W.Va. 159, Virginia Supreme (1972), Sylla- of the West quoting, decisions 191 S.E.2d 497 bus, give Appeals, Dunlap Compen- v. Court State Workmen’s Commissioner, 359, Pneumoconiosis Board sation 152 W.Va. (1968).” Judge, Administrative Law we Syllabus, S.E.2d 605 Rushman gross committing Lewis, 149, to find error would 173 W.Va. 313 S.E.2d 426 otherwise. 27, 2000, April from this order of the Syl. pt. Conley.

It is explained have also We appeals. Mr. now Rhodes WCAB plainly wrong [T]he standard of review is a

II. one, presumes deferential an admin long istrative tribunal’s actions valid as STANDARD OF REVIEW supported by the decision is substantial appeal primarily This involves Queen, Syl. pt[.] evidence. In re questions previously of law. We ex have (1996); Frymi plained questions that we review de novo Paige, er-Halloran v. law the WCAB. decided (1995). 780, 458 S.E.2d 788 in v. As we said Barnett Workmen’s State 199, Conley, 199 W.Va. at at 483 S.E.2d Com’r., Compensation 153 W.Va. Finally, prudent it is note 698, (1970), 172 S.E.2d 707 “[w]hile Compensation Appeal “[w]hen the Workers’ findings of fact of the conclu [WCAB] are ruling Board reviews a from the Workers’ they manifestly against unless sive are Compensation Office of it must do so evidence, weight legal of the conclu under the standard of out in review set W. board, appeal upon sions based such 23-5-12(b) (1995), Va.Code and failure to subject findings, by to review 6, Syl. do so will pt. be reversible error.” subject courts.” Conclusions of law are 23-5-12(b) (1995) Conley. 3, scrutiny. Syl. pt. novo de Adkins v. directs, (Repl.Vol.1998) part, also in relevant Gatson, 561, 192 W.Va. 453 S.E.2d 395 (1994); 1, Syl. pt. Randolph County Board Scalia, 289, Education v. 182 W.Va. 387 reverse, [The WCAB] vacate or modi- (1989). 524 on an S.E.2d Where the issue fy the order or decision the administra- appeal clearly of law or in judge law if rights tive the substantial statute, volving interpretation aof we petitioner petitioners or have been apply Syl. a de novo standard of review. prejudiced because the administrative law 1, A.L., Chrystal pt. R.M. v. 194 Charlie judge’s findings are: 138, (1995); Syl. pt. 459 415 S.E.2d (1) statutory provisions; In violation of 1, University Virginia Bd. West or Trustees on West Uni Behalf of (2) statutory authority In excess Fox, 91, versity v. 197 W.Va. 475 S.E.2d 91 jurisdiction or law the administrative (1996). judge; or Div., Conley Comp. v. Workers’ 199 W.Va. (3) upon procedures; Made unlawful or 199, 542, (1997). 196, 483 S.E.2d 545 To the (4) by law; Affected other or error of requires extent that our decision in this case (5) reliable, Clearly wrong in view of the us to factual consider made probative and WCAB, substantial evidence on the finding will not we reverse absent record; whole or plainly wrong. the WCAB’s decision is “ finding Arbitrary capricious ‘This Court will not reverse a or or character- Compensa- of fact made Workmen’s ized abuse of discretion or un- Appeal appears tion Board unless it from warranted exercise discretion. standards, conclusions, and, so, regard due we now if who bears With these the burden appeal. advancing procedure. the issue consider raised III. impression This is an of first issue it, this Court. order to settle we look to DISCUSSION the Workers’ statutes. Be only party who Mr. Rhodes is the filed a expressly cause those statutes do not address appeal. in brief connection with this There issue, ascertain, we must endeavor to response employer, been no from the provided, from the what text business, longer no in Division. who is “ ‘ legislature object primary intended. “The simply argues reports Mr. Rhodes construing is to statute ascertain and Aycoth, Harron and addition to Drs. give legislature.” effect to the intent diagnosis Liebig, provided initial of Dr. reli- Syllabus 1, Point Smith State Workmen’s able, probative evidence that substantial Commissioner, 159 W.Va. Consequently, light from he suffers OP. of 108, (1975).’ 2, Syllabus point S.E.2d 361 rule,5 liberality Mr. Rhodes contends that Wood, Anderson v. 204 W.Va. percent statutory entitled to the he five (1999).” Syl. pt. Expedited S.E.2d impairment. for OP without award Transp. Sys., Vieweg, Inc. v. above, As noted affirmed the Di- OOJ In reaching vision’s award of no benefits. decision, concluded that Mr. We find OOJ several of the Workers’ Com findings pensation had Rhodes failed show statutes instructive to our consid clearly wrong.6 question. Thus, of the OP Board This were eration the instant OOJ, subsequently conducting analysis, decision of the which was our we must consider incorporated together all topic. affirmed WCAB and into related to this statutes ‘ ““ order, significant materia, part pari own based ‘Statutes must be con intention, together legislative “[m]embers the fact that strued gathered requested Board were not to review [OP] the from the whole of the enact ments, 3., by given Sylla Rhodes] submitted and must Point [Mr. [to] evidence be effect.’ bus, Sims, reliability credibility Graney discuss the and of Dr. State ex rel. v. 144 W.Va. 72[, (1958) Thus, 1, Ayeoth’s report.” Syl. pt. ]. the issue which 105 S.E.2d 886 State Boles, appeal 674, rel. 147 must be addressed to is ex Slatton v. W.Va. resolve 130 (1963).” 1, Syl. pt. 192 whether the OP Board is review S.E.2d Transamerica Bank, by 474, and comment on evidence submitted Fin. v. 190 Com. Blueville W.Va. (1993).’ protesting Syllabus 2, point claimant an adverse decision of 438 S.E.2d 817 Kirk, 258, Beckley Division in an claim v. the rendered after 193 W.Va. 455 S.E.2d (1995).” 3, Expedited. hearing/ex- Syl. pt. OP Board has conducted its 817 the See also Educ., findings Carvey Virginia amination submitted v. West State Bd. of Comp. degree 5. See Crouch v. West Workers' shall be determined of medical Comm'r, 732, 747, 730, impairment occupational 184 W.Va. 403 S.E.2d found is (1991) rule, ("As general pneumoconiosis 749 the claimant's board. division shall en- compensation in a case evidence workers’ must setting findings ter an order forth of the Moreover, liberally favor. construed in his occupational pneumoconiosis board with re- Court has stated that a claimant is entitled to gard occupational to whether the can be drawn from all reasonable inferences that pneumoconiosis degree of medical im- Compensation the evidence. Javins v. Workers' Commissioner, any, resulting pairment, if therefrom. That 747, 320 S.E.2d 173 W.Va. 119 order shall be the final decision of the division (1984); Compensation Sluss v. Workers' Commis 23-5-1], purposes [§ of one section article sioner, 433, (1985).”). 174 W.Va. 327 S.E.2d 413 chapter. five If such a of this decision is to, objected judges shall office of affirm § 23-4-6a 6. Pursuant to W. Va.Code occupational pneumoconiosis decision following hearing board made unless the deci- employee permanently If an is found reliable, clearly wrong sion is in view the pneumoconiosis, occupational disabled due to probative and substantial on the whole [§ 23-4-1] as defined in section article, of this one disability percentage permanent record.... 14 perma- 831, employee is found to be 720, 731, If an 842 527 S.E.2d W.Va. pneu- nently occupational disabled due to (1999) relate (“Generally, ‘“[statutes moconiosis, one as defined section subject matter should be read to the same article, percentage of this Legisla- [§ 23-4-1] together so that applied disability shall be determined permanent gathered from the can be intention ture’s 3, impairment degree medical Syllabus Point of the enactments.”

whole pneumoconi- occupational Workmen’s v. State Smith found 108, division shall enter osis board. The Comm’r, 219 S.E.2d 361 159 W.Va. oc- Miller, setting forth (1975).’ 3, order Boley v. 187 W.Va. Syl. pt. (1992).”). with re- cupational pneumoconiosis board 242, 418 S.E.2d occupa- claimant has gard to whether First, we note degree tional of an integral role the decision plays an any, resulting if impairment, medical “[tjhe board is to function claim: final That shall be the therefrom. order relating questions determine all purposes of the division decision occupational pneu compensation for cases 23-5-1], of this article five [§ section one supervi moconiosis under the direction to, objected chapter. If such a decision is commissioner.” sion judges the deci- the office affirm (1999)7 (Supp.2000) (emphasis § 23-4-8a sion of the Richardson, added).8 v. also Newman See following hearing unless the board made 705, 66, 69-70, 708-09 410 S.E.2d 186 W.Va. wrong in view decision (1991) (“Because Occupational Pneumoco reliable, probative and substantial evidence who composed of doctors have Board is niosis whole record. on the both, experience, or ac ‘by special study or added). noteworthy that (Emphasis It is knowledge pulmonary dis quired special repeatedly utilizes quoted provision [1974]), above (W. Va.Code, 23-4-8a, eases’ “shall.” the term questions all medical Board is to determine pneumoconiosis claim un in an mandatory. “shall” is See State The word supervision of Com der the direction Allen, 208 W. Va. S.E.2d Ferguson v. Workmen’s State missioner. 87, (“Generally, ‘shall’ commands Commissioner, 152 mandatory connotation and denotes (1968).” (footnote omit directory, rather the described behavior ted)). (citations omitted)); discretionary.” than Matin, Furthermore, Syl. pt. E.H. v. Division and the OOJ (1997) (“ mandated, ‘It is well estab- § 498 S.E.2d 35 in Va.Code 23-4-6a W. “shall,” (1995) in that the word the absence give substantial lished (Repl.Vol.1998), language showing a con- of a the statute Board’s determination weight to the OP trary part Legislature, impairment: intent on the degree of medical claimant’s 622, 519, 529, (1999) added). 632 519 S.E.2d (Emphasis 4, (citations omitted). Syl. part, pt. See also § in effect of W. Va.Code 23-4-8a 7. The version Co., Daily Virginia Inc. v. Dev. West Gazette claim was Mr. Rhodes asserted his at the time 51, (1999) Office, W.Va. 521 S.E.2d 543 206 slightly differently: "The function of the worded ("A statutory provision which clear and un- is questions all medical board relating be to determine shall legislative ambiguous plainly expresses occupation- compensation to cases interpreted by the courts but intent will not be pneumoconiosis and su- under the direction al pervision (internal given will be full force and effect.” Va.Code W. commissioner.” 5, omitted)); Syl. pt. quotations and citations (1974) (Repl.Vol.1998) (emphasis § add- 23-4-8a Comm'n, part, Virginia Walkerv. West Ethics ed). change be” to We find that the from "shall [(1997)] 108, 167 201 W.Va. ("Where 492 S.E.2d meaning materially change not "is” does language of a statute is clear quoted language. meaning ambiguity plain is without unambiguous, resorting accepted of inter- it is not without to the rules 8. To the extent statute (internal quotations subject interpretation: pretation.” and citations omitted)). statutory provision language of a "[W]here the Servs., W.Va. McGraw v. Combs 206 plain, applied State ex rel. as written its terms should be 34, (1999). 512, 519, Kennedy, S.E.2d 41 526 DeVane v. construed.” mandatory should be afforded a connota- OP claim. Once claimant is referred ” (citation omitted)). tion.’ Board, see W. Va. Commissioner to the OP (1990) Co., (“If Keplinger Virginia § Elec. and Power (Repl.Vol.1998) Code 23-4-8 11, 21-22, 632, compensation 208 W.Va. 537 S.E.2d 642-43 occupational claimed is for (2000). pneumoconiosis, the commissioner shall have power, after due employer, notice to the

Similarly, in a case where claimant seeks and whenever percent statutory a five commissioner’s award for OP with- it impairment, necessary, shall be out such to order a determination is to be claimant to appear Division with the advice made examination occupa- before the recommendation Board: tional board pro- hereinafter vided.”),11 it shall [I]f be determined either the division the Commissioner or the OP

in accordance with the facts notify case must then employee/claim- and with the advice and recommendation ant12 appear before the OP Board. W. occupational pneumoconiosis board (1971) § Va.Code (Repl.Vol.1998) 23-4-8b employee that an occupational pneu- (“The occupational pneumoconiosis board, moconiosis, but pulmo- without measurable reference it the commissioner of a therefrom, nary impairment employee such pneumoconiosis, ease paid shall be twenty awarded and weeks of notify employee, dead, or in case he is benefits at the same benefit rate as herein- claimant, employer, appear provided. above before such board at a place time and stated added).10 § (emphasis 23-4-6a9 notice.”).13 in the employee Where the as- Having serting observed a claim for living, OP benefits is considerable defer- he or ence afforded we now she is then consid- to submit to an examina- procedural er its processing role by, of, of an tion or on behalf Id.14 the OP Board. supra 2000) 9. See note 8. (identifying persons may who receive benefits). Workers' death Additionally, 10. we § note that W. Va.Code 23- 4-6(h) (1999) 2000) (Supp states that "[f]or the (1986) ("In § 13. See also 7A C.S.R. 85-1-20.3 purposes [Chapter 23 of the West reference, the case of such the Commissioner finding occupational pneumoconi- Code] a notify will the claimant and the interested em- osis board shall have the force and effect of an ployer employers appear before the [OP] previously award." This Court examined that place Board at the time and stated in the no- language in an earlier version of W. Va.Code tice.”). 23-4-6(h) § explained purpose that the provision dependents is "to allow to recover regard, (1971) In this W. Va.Code 23-4-8b employee in those instances where the die[s] (Repl.Vol.1998) part: states in relevant prior ruling to a final of the Commissioner.” Comm'r, Cole v. State Workmen’s employee living, appear If the he shall be- 294, 301, 166 W.Va. 273 S.E.2d fore the place specified board at the time and (citing Comm'r, Comp. Charles v. State Workmen’s examination, including and submit to such (1978)). 161 W.Va. examinations, X-ray clinical and as the board may require. physician prac- If a licensed to 11. Accord 7A C.S.R. 85-1-20.3 See tice medicine in the State shall make affidavit Richardson, also Newman v. employee physically ap- unable to (1991) ("After 410 S.E.2d the Commis- pear place designated by at the time and the exposure require- sioner determines that the board, shall, prop- such board on notice to the occupational pneumoconio- ments in a claim for parties, change place may er and time as met, sis have been 'the Commissioner must refer reasonably facilitate the or examina- Occupational the claim to the Pneumoconiosis employee, may appoint tion of quali- or a Comm’r], Comp. Board....’ Parker[ v. Workers' specialist respiratory fied in the field of disease [181,] 183, [142,] 174 W.Va. 324 S.E.2d to examine the claimant on behalf of the [(1984)]; Syllabus, Godfrey v. State Workmen's board. Commissioner, 166 W.Va. deceased, employee Where the is W. Va.Code (1981); Syllabus S.E.2d 802 Point Meadows v. § 23-4-8b directs: Commissioner, [Compensation State Workmen’s ] dead, employee If the be the notice of the (1973)."). require board shall further that the claimant deceased, employee If the produce necessary permits his or her claim consents and so may See, appropriate be dependent. may asserted autopsy performed, that an be if the board e.g., § W. (Supp. Va.Code 23-4-10 shall so direct. When in the of the respect addition, to employer and cross-examination employee and nation

In At findings and such such conclusions. required to the OP Board with provide to hearing, support or controvert X-ray and reports “all medical examina- findings and of the board conclusions may respective pos- in their tions which be to and limited examination cross- control, shall be showing past pres- or or session board, of the of the examination members employee.” Accord condition Id. ent testimony taking to other § 7A 85-1-20.3 C.S.R. roentgenologists. qualified physicians and examination, completing After its the OP added). mandatory (Emphasis Use report to must then a written Board submit that the OP Board term “shall” demonstrates detailing findings its the commissioner appear at the unequivocally every conclusions as to must submit to hearing and examination 23-4-8c(a) § controversy. Va.Code W. cross-examination. (1993) (Repl.Vol.1998).15 Accord 7A C.S.R. addition, § must 85-1-20.4. Board persuaded by the numerous areWe evidence, all in- with the commissioner Legisla file provisions discussed above X-ray reports and cluding medical examina- ture Board comment intended tions, employ- behalf of an produced by or on on evidence submitted con new medical Thereafter, Id.16 if employer. or party’s objeetion(s) to the -with a OP ee/elaimant nection employer employee/claimant or files First, findings and conclusions. we objections findings and conclusions of objections filing note that Board, then, pursuant to a findings and conclusions of the OP 23-4-8e(d), or § the OOJ the Commissioner required at OP Board hearing is which the hearing. Accord schedule 7A C.S.R. must appear. purpose clear members must The § Specifically, W. 23- 85-1-20.5. Va.Code is to whether determine 4-8c(d) part: states relevant findings OP Board’s and conclusions are objection findings clearly wrong, which standard for re If filed is the been board, versing notice there- a decision of the commissioner and conclusions board, given thereupon based. Because the OP Board is of shall be ques joining findings charged determining with all medical members thereof such eases, appear relating at time tions to OP and because of and conclusions shall afforded the by the commissioner office substantial deference fixed claims, hearing to in connection when judges for the submit to exami- Board with OP necessary produced by physicians on autopsy accu- behalf board an rately is deemed animations scientifically to employer, ascertain and deter- claimant and whether there death, autopsy such exami- mine the cause of pneumo- medical evidence of board, by the which nation shall be ordered West coniosis. (1981 Code 23-4-8a designate duly physician, licensed shall Vol.). Replacement must specialists may pathologist, or be such other as findings then submit Commissioner board, necessary by deemed to make such report. opinions in a written The Board's as determine the cause examination and tests to extent of to the are, certify his or their written find- of death analysis, judgment in the final based not board, triplicate, ings, in factors, only objective subjec- but also on public In the records. event that a shall presumption in tive factors such as the favor compensation for re- claimant for such death impairment. showing of the results the least permit autopsy such fuses to consent and review It is still for Commissioner their made, rights compensation all there- evidence, findings, well as all other to de- upon be forfeited. disability percentage what exists. termine specific findings 15. A list of non-exhaustive as- Pneumoconiosis Board conclusions must be set forth in the OP by interpreting the Commissioner its own sists Board's written § is found W. Va.Code pre- those test and examination results and 23-4-8c(c) (1993) (Repl.Vol.1998). by employers and claimants from other sented physicians. laboratories and regard procedure, previ- 16. With we have to this Comm'r, Compensation Workers’ 173 Javins v. ously explained that: 757, 747, 119, (1984) 129-30 W.Va. S.E.2d Occupational Pneumoconiosis Board's (footnote omitted). determine, upon function is based their any own ex- examinations and evidence from challenging accuracy statutory having scheme the OP Board medical evidence report is submitted a the OP Board’s examine medical evidence and comment thereon, objecting report, Board party provided the OP a com- so the OOJ opportunity plete adequate upon to review must be afforded and record17 which to decision, and comment on that evidence and its relia- base its will be followed.

bility. Legislature provided this case, In instant the OP Board opportunity mandatory in the form objected no found OP and Mr. Rhodes to its addition, hearing. party In we believe the Thereafter, findings. mandatory hearing a challenging findings Board’s should the OP pursuant § conducted W. Va.Code 23- questioning bear the burden the OP 4-8e(d). However, Mr. Rhodes failed to regarding Board new medical evidence. regarding the OP Board the medical words, party challenging other reports Ayeoth of Drs. Harron and that were report Board’s bears the burden of estab- objection support submitted in of his lishing that new evidence is reliable his/her findings and conclusions. Be findings and con- demonstrates and procedure cause and in burden set forth clearly wrong. Board clusions opinion this were heretofore es Consequently, party hold that we when tablished, appropriate we find it to reverse objects and conclusion of the the final order remand this WCAB in Pneumoconiosis made case for an additional on Mr. Rhodes’ connection with Workers’ objection to the OP Board’s in order claim for bene- opportunity to afford Mr. Rhodes to meet fits, and submits new medical evidence questioning his burden the OP Board with objection, connection with the respect to the medical evidence he submitted 23-4-8e(d) (1993) (Repl.Vol.1998) requires § objections.18 support of his objecting party to bear the burden questioning Occupational Pneumoconiosis IV. regarding the new medical evidence required. at the therein CONCLUSION that, reaching foregoing We note 27, upon foregoing, April Based holding, opinion away this does not take order the WCAB reversed authority statutory OOJ’s examine the evi- proceed- for additional case remanded record, regard dence on the with due for the opinion. ings not with this inconsistent rule, liberality reaching any its decision Rather, given case. assures that Reversed remanded. upon Judges, party OOJ must base its taken at

17. The decision its con- to the Office of evidence record, which, sideration the entire as clarified hearings conducted Office of opinion, in this must include the OP Board's any documents in the Division’sclaim files which comments on new medical evidence submitted added)). protest.” (emphasis relate to the support protest: "Upon of a consideration of the record, judge the chief law entire administrative liberality rule 18. Mr. Rhodes asserts adjudicator or other authorized within the office requires the reversal of the final order of the judges affirming, render a shall decision re- note, however, liberality WCAB.We rule versing modifying the division’s action.” W. burden of does not relieve Mr. Rhodes of his 23-5-9(c) (1999) (em- § (Supp.2000) Va.Code proving his claim. added). 23-5-9(b) phasis See also W. Va.Code ("Subject practice to the rules of general "Though the rule in workmen's com- promulgated pursuant eight to section [§ 23-5-8] pensation will cases is that the evidence article, upon of this the record which the matter claimant, liberally in favor of the construed any shall be decided shall include evidence sub- rule does not relieve the claimant of the bur- by party judges, mitted to the office of proving den of his claim and such rule can not hearings judges taken at conducted the office of satisfactory place proper and take the documents in the division's claim files 3, Syllabus, proof.” Staubs v. State Point objected (empha- which relate to the matter to.” Commissioner, Workmen's added)); 93-l-2.3(e) sis 7A C.S.R. 337[, (1969)]. W.Va. 168 S.E.2d 730 ("Subject to the limitations set forth in these Comp. rules, Syl. pt. protest Clark v. State Workmen’s the record which a shall be Comm'r, decided include evidence submitted 6(h) (“For dissenting (Supp.2000) files purposes Justice STARCHER of joins. opinion [Chapter in which Justice McGRAW 23 of the West Code] finding occupational pneumoconiosis concurring opinion. Justice SCOTT files board shall have the force and of an effect SCOTT, Justice, concurring: award.”). (Filed 2001) Jan. any party objects If to the OP Board’s continuing In a decision, trend some members of as embodied the Division’s subse- politicize this Court to nature of order, 23-4-8c(d) quent § judicial process to (1998)1 the ultimate detriment of hearing mandates that a be held State, dissenting the citizens and the Judges purpose before the Office of for the position in this advances case questioning of the OP Board members. The literally bankrupt would fund earmarked required, § Office under 23-4- (OP) 8c(d), claims. hearing, to schedule a and the mem- dismayed by dissenting opinion’s I am join bers the OP Board who in the conclu- applicable distortion of the law. As I more appear” sions of “shall at such below, fully majority outline 23-4-8c(d) decision § hearing. While does not ex- judicial simply provides ease rule to pressly obligate a protesting party ques- to employees bolster a and em- tion the OP the statute does state ployers consistently have followed Work- against findings the evidence for and Compensation litigation. ers’ It does not add of the Board “shall be limited to examination any any party. to real burden cross-examination the members of the testimony qualified Board” and the of other

I. physicians. always It has been the common practice protesting party question for the OP Claims Procedure Quite simply, members of the Board. it majority opinion correctly notes that only way is the mandatory which the made, when an OP claim is the Workers’ requirement hearing that a be held can be (Division) Compensation Division must sub- fulfilled, only and it way is the that a sure mit the claim to the Pneumoco- protesting party can demonstrate that (OP Board). niosis Board The OP Board is findings wrong. system Our charged making then with a determination recognizes that cross-examination is the sur- regarding the claim. The OP Board submits path est to the truth. findings its and conclusions to the Division. ease, The Division is thereafter employee protested make determination of the claim based findings the OP Board’s mandatory report. OP Board’s See W. Va.Code 23^1- was scheduled. The OP Board was 23-4-8c(d) (1998) expired filing 1. W. Va.Code objections states: time has for the findings and conclusions of the board no party objects any If either to the whole or filed, objections have been of a part findings of such and conclusions of the majority findings of the board of its and con- board, party such shall file with the commis- clusions on shall be tak- or, day July, sioner on or after the first one plenary en to be and conclusive evidence of the ninety-one, thousand nine hundred with the findings and conclusions therein stated. ob- judges, thirty days receipt office of within from If jection findings has been and con- copy party, good of such to such unless for filed board, shown, clusions notice shall be cause the commissioner or chief ad- thereof board, given time, and the members judge ministrative law extends such such thereof joining findings in such party's objections writing, and conclusions shall specifying thereto in appear particular at the time the commissioner or statements of the board's find- fixed judges ings party to submit to and conclusions to which such ob- office of examination and cross-examination in respect jects. filing objection of an within the findings specified hereby to such time conclusions. At such declared to be a condi- hearing, support right litigate findings tion of the evidence to such or controvert the jurisdictional. findings hence After the time and conclusions the board has ex- shall be pired filing objections for the limited to examination and cross-examination board, board, taking and conclusions the commission- members and to the testimony judge proceed er qualified physicians or administrative law of other’ provided Added). act chapter. roentgenologists. (Emphasis in this If after the questioned Javins, present impairment, but its members were not dence of 5% OP “under indicating was submitted without the ben- highest and the case ‘medical evidence the de- gree impairment’ on efit of the OP comments the this ease—should —5% Thus, adopted claimant’s support new medical evidence. the have been to an award for elaimant/protestant attempted to misapplication defeat the the claimant.” Such a of Jav- mandatory requirement By 23- ins is allowing unfortunate. the submis- 4-8c(d) hearing that a be held and that the sion of a claim a proper hearing, without the opinions evidence be concentrated around the dissent seeks circumvent a Legislature mandatory, of the members of the Board whose decision deemed and would protest. hearing prevent is under Because such a Judges having the Office of from a mandatory, majority complete adequate could have upon record which to Division, non-protesting party, or the to base its final decision. by hearing questioning advance the proper application A analysis and correct Instead, majority opinion Board. took requires exactly Javins this to do Court practical approach adopted proce- majority opinion what the did—remand for a that employees employers dure have hearing may so that the OP Board review the utilized, i.e., requiring protest- heretofore fact, Syllabus claimant’s new evidence. ing party, employee employ- be it the or the Point of Javins states “that medical evi- er, words, the Board. In other indicating highest degree dence of im- pursuant statutory major- process, to the shown, pairment, which is not otherwise ity opinion simply requires party through explicit findings by the Occu- offact protests who an OP Board’s decision to the pational Pneumoconiosis to be unre- Office of sees to it that the liable, incorrect, clearly or attributable to goes Materially, forward. ruling illness, some other or disease identifiable changed nothing in Workers’ presumed accurately represent the level of any party law. It added no burden pulmonary impairment attributable to occu- proceeding. The dissent’s assertion other- pational pneumoconiosis.” (Emphasis add- wrong. iswise ed.) recognizes Javins that the OP Board has a

II. duty to comment new OP evidence sub- However, by party. dissenting mitted Dissenting Opinion The Would ignore plain language seeks to Bankrupt Fund OP recognizes Legislative Javins which re- dissenting opinion adopted Should the quirement protesting party present that a its by crystal this Court result is clear. The Instead, new evidence to the OP Board. filing reap mere of a claim would OP benefits dissenting opinion suggests that under Jav- 100% of the time.2 The dissent seeks to required. ins a full is not To the justify approach by relying this disastrous contrary, clearly Javins states once the Compen- the decision v. Workers’ Javins statutory duty Board has fulfilled OP Commissioner, sation 320 examining by par- submitted new evidence S.E.2d ty, and that such is not concludes incorrect, “unreliable, dissenting opinion great has done or attributable illness,” by disservice to Workers’ law some other identifiable disease According indicating its miseharacterization of Javins. then the medical evidence dissenting opinion, highest degree impairment presumed since no evidence in employee’s pulmonary this case contradicted the evi- reflect the claimant’s level of im- facts, fully statutory 2. The dissent is aware that in ists. Because the dissent is aware of these claims the Division has no “interest” and there- fore never subject position it knows that its would appears by litigation counsel in such raiding. truly fund to wholesale I am disheart- Judges, before Office of the Workers’ Com- thought “unlawfully” opening ened pensation Appeal Board or this Court. The dis- plain State’s coffers such misconstruction of a majority sent is further aware that in the vast statute. statutory employer longer ex- claims no pairment. duty regard The Board’s as to reach a decision the shortest and hearing. quickest possible: without a full could be fulfilled route procedural compen- law of workers’ Finally, position crux taken sation, substantive, like the takes its tone in automatic the dissent results entitlement. from the beneficent and remedial charac- Obviously, if Board is the OP denied the legislation. gener- ter of the is Procedure opportunity to comment the new evi- ally summary and informal.... The whole claimant, submitted under Javins dence get away idea is to from the cumbersome employee’s always prevail. must evidence procedures pleading, and technicalities of essence, claim, any employee who files a right and to reach decision the short- protests, and submits his or her new then quickest possible est route. allowing without Board com- OP ment, Employees Compensation 7 Larson’s will be awarded benefits. Workers’ Law just § 124.01. “jackpot” to hit Professor Larson’s conclusions who want need reality analysis were drawn from an file a claim. The dissent’s for West of hundreds of compensation bankrupt litigated is a fund. The sad workers’ cases world- is, century. do not wide over the last truth the dissenters care. majority opinion ignores The the funda- majority opinion. I concur with the assumption etiology mental of occu- Justice,

STARCHER, dissenting: pational pneumoconiosis “ranges from the (Filed 2001) imperfectly-understood downright to the Jan. mysterious,” begins premise with the Larson, in Professor his treatise on work- Pneumoconiosis Board law, compensation recognized ers’ that medi- (“OP Board”) statutorily endowed with cal of an “art” than a evidence is more “sci- unquestionable infallibility deciding ques- in occupational in ence” the context of diseases. regarding lung majority tions diseases. The This is one of the reasons that workers’ opinion goes then on to create a new rule compensation agencies and courts have tend- procedure parties engage which forces the substantive, evidentiary require- ed to relax fruitless, expensive, in though likely litiga- occupational disease ments cases. Profes- tion. sor Larson states that: I appropriate majority opinion’s dissent to the circumstances medical cre- [I]n necessarily procedure, ation of a testimony need not new rule of which is establish reason, pathological supported specifically positively neither law nor diagnosis etiology suggests diagnosis occupational of a disease or con- that a only ... can dition. be with established absolute, precision by scientific large advent of a and vari- The volume any opinion contrary Board —and that ety occupational particularly respi- —and ap- OP Board’s until unreliable ratory etiology ranges whose —diseases proved by itself. The rule abro- imperfectly-understood from the gate years jurisprudence regarding mysterious begun precip- downright interpreted how evidence is to be in work- questions on itate the extent claims, compensation ers’ and creates a rule incomplete awards can be based on medi- solely against party biased cal evidence as to the nature and causation is, proof with the burden of claimants. physical ... [I]f of the disease causal —that sequence sufficiently impressive, This opposing entire case centers inter- precise diagnosis etiology lack can pretations x-ray film one several doc- excused. panel physicians tors. The Board —a Larson, provide Arthur Larson and Lex K. 7 Lar- hired to advice to the Workers’ Com- pensation x-ray son’s Workers’ Law Commissioner —took an film 128.02[2], September [4] [2000]. Professor Larson of the claimant’s chest on suggests procedural also radiologist rules em- the OP Board ex- ployed compensation x-ray workers’ claims amined the films and found no evidence relaxed, informal, summary occupational pneumoconiosis. should be so of x-ray interpretation film procured any way from either unrelia- to two and sent it different ble. radiologists independent for an review. Dr. opinions Our rule when the doctors are x-ray and found Ray A. Harron read the quite simple: in conflict is “In all types appeared lungs con- abnormalities cases, evidence, compensation conflicts in pneumoconiosis. occupational with sistent otherwise, medical or are to be construed Aycoth similarly x-ray Edward read the Dr. favor of the claimant.” Javins v. Workers’ appeared what and found “scattered Comm’r, density opacities measuring up to 3 rounded 320 S.E.2d We made dear throughout lungs,” mm. in both diameter Syllabus Point 1 Javins that when degree suggesting mild conflicting presented is evidence con- pneumoconiosis. cerning degree the or impair- existence “Occupational pneumoconiosis is a disease in ment an occupational lungs by caused inhalation of min- the the claim, “that indicating medical evidence the period a particles ute of dust over of time highest degree impairment, which is not arising causes and out of due to conditions shown, through explicit otherwise findings of employment.” and in the course of the by fact the Pneumoconiosis W.Va.Code, pneumoconio- 23-4-1 A [1989]. Board, unreliable, incorrect, clearly or silicosis, asbestosis, as or black sis—such attributable to other some identifiable dis- scarring lung the irritation and of the —is illness, presumed accurately or ease is to lungs of the and tissue surround- tissue the represent pulmonary the impairment level of lungs by breathing in ing the caused certain occupational pneumoconiosis.” attributable to asbestos, silica, irritating or dusts —such as scarring process easily coal. The inflammation and The instant could case have been though always application is through not resolved the of Javins sometimes— —visible x-ray by through Judges, by the use of films of the chest. the Office of the Workers’ Board, Compensation Appeal by or ma- Reading x-ray lungs an is similar to jority opinion. interpreted The OP reading a Rorschach doctors test —different September x-ray showing as no oc- (called “opacities”) x-rays at blotches on look cupational pneumoconiosis. The claimant’s try interpret to and measure and what the x-ray interpreted positively doctors may interpret mean. blotches One doctor a showing occupational pneumoconiosis, sup- occupational pneumoconiosis, blotch as while porting permanent a 5% statutory partial might another feel the blotch the remnant disability opinion award. Neither medical may of a childhood A third doctor disease. unreliable, incorrect, shown or “to be normal, interpret healthy lung the blotch as to some other attributable identifiable Only by slicing lung claimant’s tissue. Board, or disease illness” examining into sections tissue under Judges Appeal Office or Board. microscope diagnosis a can an exact be Hence, Javins, under “that medical evidence procedure obviously not avail- achieved —a indicating highest degree impair- living to claimants. able ment” —5% in this case—-should have been x-rays reading lung The therefore adopted support an award for claim- subjective. looking very spots at Doctors ant. x-rays trying pigeonhole squiggles spots categories, diagno- applying simple principle into that the Instead of so law, way conveyed majority opinion in sis can be another doctor created new twist claim, procedures instant are to could understand. In the be used in diagnoses reached two look- claims.1 The doctors different majority opacities x-ray. opinion I finds that ing at on the same found because the Board, suggest claimant “failed” to no evidence the record majority appearance proce- making ap- this new Division even in the created any briefing peal. rule without from the claimant dural issue, employer or the on the and without the appear at fixed the time ignored by conclusions shall be the Office his evidence could judges for Judges. the commissioner office hearing to submit examination First, regulations clear make respect find- cross-examination to such must its decision Judges make Office ings and conclusions. testimony solely upon the evidence based into parties choose introduce language majority opinion interprets the record: to mean the OP Board of this statute protest shall ... which a the record only required to submit to examination include submit- evidence decided respect find- to the and cross-examination Judges, party to ted it must of the OP ings conclusions Office of hearings at conducted taken and cross-exami- also submit to examination documents the Office claim- respect nation claim relate to files which Division’s experts. experts employer’s ant’s protest. interpretation language adds new This added). 1.2.3(e) (emphasis statute. 93 C.S.R. claim, already “in the Division’s the instant W.Va.Code, 23-4-8c(d) does Nowhere ... “document[ ] claim files” was require statute that the claimant or em- protest:” Board’s relate[s] the OP Board ployer submit them evidence to the OP finding report no evi- to Commissioner the fact, specifi- commentary. In the statute for pneumoconiosis. occupational dence of The wasting cally prevents parties from the the to the Office of claimant then submitted by doing anything other OP time report by Judges in the form of a evidence questioning the OP Board or other med- than report Ray by and Dr. A. Harron another ical The statute continues: witnesses. Aycoth, finding both Dr. Edward of support or hearing, At such evidence to occupational pneumoconiosis. The Office of findings of controvert the and conclusions have, have, Judges and should made its could board be limited to the shall examination record, solely upon this as its own decision of and cross-examination the members regulations require. board, testimony taking the and Second, regulation is no or I there statute qualified physicians roentge- of other and suggesting find can the Office nologists. evidence, case, reject it can as did language portion This statute contains the testimony party

because declined to solicit limitation, language mandating action. not likely an opposing, from hostile witness about nothing parties The can do at the see I don’t how the evidence. Board, ques- question than the OP Board, other question “failed” OP because I to doctors, regarding claim. The tion other mandating requirement find no our law repeat, require does statute does questioned Board be about the OP not — not — parties produce expert them medical to do the stat- claimant’s evidence. Nowhere testimony hearing. at It witnesses for quoted by majority regulations utes or require parties question ques- also does not to opinion require that the OP Board be any regarding particular piece party’s the OP Board tioned about evidence. of evidence. only making mention that The statute questioning OP submit to is W.Va. W.Va,Code, Board Reading language of 23-4- Code, 23~4-8e(d), specifically requires 8c(d) plainly, it is obvious that the statute appear questioning to the OP Board way preserve process exists as to the due reading opinions. plain its A about own rights participants the workers’ com- nothing questioning the statute reveals about system. and The pensation Commissioner opinions the OP Board about other rely upon pro- Division medical advice cannot states, part: witnesses. unknown, The statute oper- phantom expert vided objection process requires findings ating If in the Due has been filed to the shadows. whereby mechanism and of the ... mem- that there be some conclusions board can findings parties the medical advice joining in affected bers thereof such cases, cupational pneumoconiosis provider. places The mechanism in question the primarily upon an unfair pneumoconiosis cases is burden claimants. 23-4-8e(d). Code, mandates that The statute claim, instant no at up one showed expert, produce the Commissioner his/her represent the OP Board to the em- questioning, nothing ployer up represent and no one showed parties The can more. yet majority opinion ab- Division — regarding the Commis- its surdly that the claimant mandates was still they required if sioner choose—but are present his evidence to to do so—and cannot waste OP Board’s Board and experts’ solicit criticism his own litigating questions.2 time other reports. majority opinion say The doesn’t pensation claims Act.” principles of workers’ procedure, vision, the claimant be W.Va.Code, 23-1-15 provisions tion fund complicated the resolution of workers’ com- W.Va.Code, “in “Since of the claimants 23-1-15, act[.]’ out (1999)(per By sioner make but the substantial his common-law or carry require administering 90 S.E. justly judgment is Thacker v. creating ” this Court has the investigations in out Syllabus, shall not [workers’ that a curiam). passage adopt of and the ascertain the substantial the Workers’ majority opinion spirit Workers’ liberally herein formal rights provisions statutory employed best calculated the workmen’s Culurides such manner new, of ^[1923] compensation] the Under interpreted violation W.Va.Code, of bound rules unnecessary provided, liberality Division is compensation such manner as the states that: rules of 531 S.E.2d the of this parties spirit Ott, applying as will provisions practice has the statute 23-1-15 in compensa- the basic evidence, ascertain required commis- chapter. unfairly favor of rule of and to rights ‘carry usual may law. Di- the the 69 suggest that of wrong” well would “criticism” —it whether the claimant is reliable Judges moconiosis. The claimant and the den both judge hire their own and conclusions of the OP Board are ions. But these give the Commissioner first cannot be protections ular asked to admit that was impact the OP Board’s even-handed rule It and evidence upon Lastly, goes against Board. of establishing being employers. say judge opinion, claimants, defy knowledge and Commissioner —who the—but proves “criticism.” the consulted jury regarding the rule and provided by presented take the administrative and more demonstrates says experts majority opinion was reason —and jury to the Office of because competing majority opinion might as However, affecting both claimants —without to falls almost Board must act as it hires To “approve” party his/her the Constitution —to rule is cast as give importantly, being occupational pneu- say whether expert opinion the OP Board incorrect. “clearly wrong.” the “bears the bur- OP different the OP Board anything history new evidence practice, due of a exclusively Board has Office employer opinions place process party’s partic- of the opin- both else the an of of occupational pneumo- years, Legislature an unwritten rule that For over irreversible, permanent, emphasized have that the Division is coniosis causes Court If adopt simple procedure. unchanging impairment. a claimant rules twice, treatise, earlier, quoted impair- test shows low Larson’s tested and one Professor jurisdictions high impair- that most follow this ment and another test shows indicates ment, Now, informality. majority opin- claim- the OP Board concludes rule of impairment. ignores degree low The ion has created a rule which these ant precedents, complicates in oc- Board reasons that the difference be- OP instance, bility testimony litigate questioned hinged upon parties not 2. For could chargeability employer an expertise. for a within the OP Board’s chargea- claim before OP Board—unless im- employer’s showing lower high degree impairment test evidence tween low and pairment most and accu- to be “the reliable non-oecupation- must result of have been the (like other, study.”)4 Again, the OP Board relies al or some rate asthma elusive causes Javins, disease”). under ille- its unwritten —and “bronchospastic showing gal theory that the medical tests — majority opinion’s more rule falls impairment presumed degree of are the least heavily because claimants bear on claimants to be correct. proving that the claimant suf- the burden of impairment percentage higher fers from a majority opinion’s new result than the OP Board. Under that found impossi- have an almost rule that claimants unwritten rule that the low- OP Board’s getting OP to both ble task of Board correct, degree impairment always est claimant’s is reli- declare that the evidence impairment higher degrees must be able the OP Board and declare causes, non-occupational result of meanwhile, repeat wrong. Employers, can if claimant can almost never win. Even up to come with a “more the OP Board’s test say a dozen claimant has hired doctors who reliable,” degree impairment, or in- lower higher in sworn that the claimant’s affidavits medical records which troduce some other accurate, if the test are reliable results might suggest to the OP Board that say results are Board decides test impairment is caused some- claimant’s well, then the claimant loses.3 reliable — pneumoconio- thing other than change If doesn’t the claimant’s evidence sum, it sis. In it is now easier than reduce again, opinion, the claimant loses. is to increase judge jury gets The OP Board award. opinions its’ own respectfully I ma- dissent to the therefore opinions. conflicts with its jority’s opinion. Conversely, employer can much more easily repeat performed the tests afford I am authorized to state that Justice the OP Board. If the results show a lower joins in dissent. MeGRAW percentage impairment, usually position employer’s takes the

tests “more reliable” and therefore

changes per- to reflect the lower

centage disability. See Thacker Work- Division,

ers’ curiam) (OP (per impairment,

Board 15% re- found but later impairment finding

duced award to 5% reading opinion Experience 3. unreliable records of the thou- can find the doctor's compensation presented workers’ sands of to cases because it conflicts with Board’s unwrit- appeal Court on indicates that the OP Conversely, ten the claim- medical theories. if slippery eel which Board is a refuses in a ant’s doctor finds no rales tion, clinical examina- pinned down. the OP Board will declare that the then n claimant’s doctor has example, For medical treatises state that often proven the OP Board’s "crackling” patient’s sounds in a "rales” or point the claimant has disease which lungs suggestive permanent, oc- irreversible goes” that the “comes and asthma —and —like cupational pneumoconiosis. The members that the has no Board’s conclusion claimant Board, however, position take the unwritten occupational pneumoconiosis is correct and rales are evidence of undefined "bronc- opinion is incorrect and unreliable. doctor’s hospastic non-occupational disease” caused asthma, (like cold, smoking). a chest sources Interestingly, usually changes OP Board its examination, If rales in the OP Board finds opinion employer’s because it finds tests breathing it impairment often attributes claimant's reliable”—not because the OP Board "more non-occupational causes other "clearly wrong.” finds I fail its first pneumoconiosis meaning than die — how the Office of can toler- understand gets no award. If the claimant’s does an doctor discrepancy. ate this rales, imputes examination and finds and then occupational pneumoconiosis, the rales to

Case Details

Case Name: Rhodes v. Workers' Compensation Division

Court Name: West Virginia Supreme Court

Date Published: Jan 24, 2001

Citation: 543 S.E.2d 289

Docket Number: 27831

Court Abbreviation: W. Va.