*1 Virginia ex IN rel. ACF of West STATE
DUSTRIES, INC.; Wheeling-Pittsburgh Elkay Mining Corporation; Com
Steel Company,
pany; Coal and Consolidation
Petitioners, Commissioner, VIEWEG, F.
William Division, Bu Danny Programs; Employment
reau of McGhee, Respon Stover; and
J. Melanie
dents. 25142.
No. Appeals
Supreme Virginia. Sept.
Submitted 5, 1999.
Decided Feb. *3 McClaugherty, Timothy L. Huff- employees John E. filed their man, Charleston, Kelly, & Vir- Jackson West who were in the course of and as a ginia, Attorneys for the Petitioners. employment perti- result before the statutory nent amendments became effective. Jr., McGraw, General, Attorney V. Darrell Specifically, petitioning employers re- Jacobs, Attorney L. Garrett Assistant Gener- quest require this Court to the Commissioner al, Hall, Counsel, L. Donald Senior those amendments which Division, Employ- Bureau of govern eligibility criteria for and benefit Programs, Charleston, Virginia, ment West permanent disability amounts of total [here- Attorneys for Respondent Commissioner awards, inafter “PTD”] W. Va. described Vieweg. n(l)) (1995) (b, d, (Repl.Vol. Code 23^4-6 Stacy, Beckley, Virginia, Don M. At- *4 1998), employees’ to their claims for PTD torney Respondent for Stover. benefits that filed were after the amend- Howard, Wheeling, Virgi- Sue Anne West appli- ments’ effective date. Based nia, Attorney for Respondent McGhee. cable authorities and the deference we ac- governmental interpretations cord officer’s Smith, Phyllis Potterfield, E. Sarah M. charged of the laws with adminis- he/she Webb, Tracy L. Rice Bowles McDavid Graff tering, we conclude that mandamus relief is Love, PLLC, Charleston, Virginia, & West appropriate According- in this instance. Curiae, Attorney for Virginia Amicus West ly, deny writ mandamus. Manufacturers Association. Jr., Calwell, W. Stuart Calwell McCor- & mick, Charleston, Virginia, Attorney West I. Curiae, for Amici Affiliated Construction Virginia Trades Foundation and West Build- FACTUAL AND PROCEDURAL Council, and Construction Trades AFL- HISTORY CIO. The salient facts ease have P. Maroney, Maroney, Thomas Thomas P. origins in the Virgi- amendments to the West L.C., Charleston, Virginia, Attorney West compensation nia workers’ statutes intro- Curiae, Virginia Amicus West AFL-CIO. by Legislature duced and enacted of this Bowen, Henry Spilman C. Bat- Thomas & in 1995. better State To understand the PLLC, tle, Charleston, Virginia, West Attor- impact legislative of these alterations ney Curiae, for Amicus Virginia West Self- law, however, it necessary is first to under- Insurers Association. stand the context within which amend- ments arose. Prior to employee an DAVIS, Justice: injured in the course and as a result of original jurisdiction proceeding, employment per- who was rendered his/her petitioners herein, Industries, Inc., manently ACF totally disabled oc- Wheeling-Pittsburgh Corporation, Steel El- cupational injury, occupational disease, or a kay Mining Company, and Consolidation combination thereof could obtain a PTD Company petitioners” [hereinafter Coal “the demonstrating award had “[a] petitioning or “the employers”], disability a writ seek injured employ- which renders to compel respondent mandamus here- unable engage gainful ee substantial in, Vieweg, William F. activity requiring Commissioner compara- skills or abilities Division Bu- any gainful ble activity to those of in which Employment Programs reau of [hereinafter previously engaged he or she has with some Commissioner”], “the regularity the 1995 period over substantial ” Virginia amendments to the 23-4-6(n) (1994) West § workers’ .... time W. Va.Code statutes various (Repl.Vol.1994).1 § workers’ See also W. Va.Code 23- determining 1. In injured employee 21A-3-7(m) whether § standards set W. forth in Va.Code disabled, permanently totally (1993) 1996). Moreover, (Repl.Vol. the statu- W. Va.Code tory guidelines (1994) 1994) § also considered certain (Repl.Vol. presumed vocational cer- 23-4-6(b, d) (1978) (same); § 4-6(n) (1993) (same); W. W. (Cum.Supp.1993) Va.Code 23^4-6(n) (1990) (same). (Cum.Supp.1991) § (RepI.Vol.1985) Va.Code 23nl-6(n) (same); § W. Va.Code February Virginia the West On (same); (Cum.Supp.1990) Va.Code 23- W. Legislature passed and enacted Committee (same). 4-6(n) (1978) (Repl.Vol.1985) Upon compre- Bill Substitute for Senate award, granted employee being a PTD. hensively aspects West revised numerous disability received workers’ Virginia law.2 “during the of [his/her] benefits remainder sweeping purported goal of reforms 23-4-6(d) (1994) life,” (Repl. W. Va.Code ameliorating the com- envisioned Vol.1994), seventy “computed on the basis of pensation restoring fiscal its fund’s crisis weekly average wage earn- percent of the integrity. financial See ex rel. Blank- State earned, em- ings, wherever Richardson, 729-31, enship v. injury, not to exceed ployee, the date (1996). Among 909-11 percentage average week- [stated] changes legislation the 1995 effectuated Virginia,” § 23- ly wage in W. Va.Code to the criteria for were substantial revisions 4-6(b) (1994) (Repl.Vol.1994). See also determining employee’s eligibility disabled 23-4-6(b, d) (Cum.Supp. d) 1993) and the method calcu- 23-4-6(b, (same); monetary (same); lating the amount of such an *5 (Cum.Supp.1991) W. Va.Code 23-4-6(b, d) (1986) (Cum.Supp.1990) Specifically, § award.3 amendments the 1995 law, totally government permanently provide and suffi to be and to officials tain individuals by prior permanent par- perform contemplated time if of cient to the duties disabled awards per- day period expired disability equaled eighty-five ninety or exceeded the law. Once the tial injuries resulting that moment or if becomes effective and from cent sustained department duty specific bodily parts. Va. has the to attend of use of See W. the executive loss Const, 1994) ("A 23-4-6(d) (1994) (Repl.Vol. § execution. W. Va. art. Code to its faithful 5.”). disability Despite Legislature’s attempt permanent eighty-five percent § to of employee date to a make these amendments effective from their more shall entitle rebuttable Court, Blankenship permanent disability passage, Richardson, presumption a total of in State ex rel. of section.”); purpose § to W. 23- found such action be violative of Va.Code 4-6(m) (1994) 1994) process rights (Repl.Vol. (noting due that cer- of the affected claimant’s conclusively "permanent be notice and rendered these amendments effective tain disabilities shall character,” i.e., including ninety days passage, presumed from 1995. to be total in 726, 738-39, thereof[, eyes sight of of 474 S.E.2d 918-19 "[l]oss I]oss both thereof!, (1996). Blankenship l]oss the use and of both For further treatment both hands or decision, thereof”). Va.Code Section III. feet or the use See also W. see infra 23-4-6(d, m) (1993) 1993) (same); (Cum.Supp. § 23-4-6(d, (1990) m) (Cum.Supp. § W. Va.Code changes affecting the and 3. For award additional 23-4-6(d, m) 1991) (same); (1986) § W. Va.Code see, e.g., receipt of PTD W. Va.Code (same); § 23-4- (Cum.Supp.1990) W. Va.Code 1998) (1995) 23-4-16(d) (Repl.Vol. (permitting § m) (same). 6(d, (1978) 1985) (Repl.Vol. receiving monitoring of claimants continuous 23-4-16(c) awards) § W. 'PTD Va.Code 1994) (1993) (same); February Virginia (Repl.Vol. Va.Code W. 2. Also on West 1998) (1995) (instituting ninety Legislature (Repl.Vol. § 23-4-24 voted to override usual eligibility days newly award of PTD benefits passage from date for enact- new criteria for effective compen- denying who is legislation such an award to claimant ed and to malte the workers’ benefits) receiving age Security effective federal old Social sation amendments from (1993) (Repl.Vol. § February passage, See of and W. Va.Code 23-4-24 of I Journal 1994) (1983) (same). Seventy- § Virginia, W. Delegates of Va.Code 23-4-16 House of Cf. (not (Repl.Vol.1985) specifically calling for con- Legislature, Regular 404-05 second Session Const, benefits) VI, (1995). monitoring recipients § 30 of PTD also W. Va. art. tinued See ("[N]o (Cum.Supp. legislature § effect and W. Va.Code 23-4-16 act of the ... shall take 1980) (same). revising eligibil- ninety days pas- expiration In addition to until the after its ity fits, bene- sage, legislature two amounts of PTD shall vote of criteria for award unless the house, changes, the implementing related other thirds of the members elected each direct."); aspects by yeas nays, Per- altered other otherwise 1995 amendments taken ry See, Barker, system. e.g., W. Va. 533 n. 1998) (institut- (1982) ("The ninety (Repl.Vol. § purpose of this Code n. whereby day ing procedure period passage Workers' between and date of effect give electron- period disburse funds provide of time to Division is authorized to a sufficient (1995) (Repl.Vol. ically); d public Va.Code 23-4-1 of the contents of the new W. notice following minimum paragraph created a distinct threshold level of this subdivi- present impairment medical to be purposes .... For required determining sion employee request before an could an award whether the claimant should be awarded of PTD benefits. permanent disability total benefits under injuries specified provisions for those Other than second subsection (m) section, (d), [sic]], of this in order to
subdivision
section one [§ 23-3-ld
article
eligible
perma-
be
award
chapter, only
three of this
a combination of
disability
inju-
nent total
all
injuries
occupational
occupational
dis-
benefits for
diseases, including
ries
and all
incuired
eases, including
pneumoconio-
occupational
pneumoconiosis,
with a date
sis, shall
considered.
of last
on and after the second
23-4-6(n)(l) (1995)
(Repl.Vol.
W. Va.Code
February,
day of
one thousand nine hun-
1998)
added).4
(emphasis
Cf.
ninety-five,
all
dred
and for
23-4-6(n)
(Repl.Vol.1994). In addi-
pending
such an award
before the division
establishing
tion to
a much more detailed and
day
February,
and after
second
medically
exact method
which to deter-
ninety-five,
nine
one thousand
hundred
injured employee’s eligibility
mine an
to be
claimant must have been awarded the sum
award,
considered for a PTD
the 1995
fifty percent
prior
permanent partial
relegated
standard for
disability awards or have
an oc-
suffered
PTD determination to but one consideration
cupational injury or disease which results
among divers criteria.
See
finding
in a
that the claimant has suffered
23-4-6(n)(2) (1995)
(“A
(Repl.Vol.1998)
dis-
impairment
fifty
percent.
medical
ability
injured employee
which renders the
Upon filing
application,
such an
the claim
engage
gainful
unable to
in substantial
activi-
will be reevaluated
the examining
ty requiring
comparable
skills or abilities
pursuant
(j)
board
to subdivision
*6
gainful
any
activity
those of
in which he or
section to determine
or
he
she has
if
suf-
previously
she
engaged
regu-
has
with some
body
impairment
a whole
medical
fered
of
larity
period
and over a substantial
of time
fifty percent
resulting
or more
either
from
determining
shall be considered in
the issue
a single
injury or occupa-
added)).
disability.” (emphasis
total
of
tional disease or a
occupa-
combination of
establishing
to
addition
a distinct
injuries
tional
and occupational diseases
threshold for the
receipt
and
of
....
If the claimant
suffered whole
benefits,
PTD
the 1995 amendments also al-
body
impairment
fifty
medical
of at least
tered
percent,
paid
the amount of
to
request shall
be
then the
be denied.
to
granted
a claimant who
Upon
finding
a
had been
the claimant does
an
percent
award
fifty
body
Contrary
have a
of PTD benefits.
whole
medical
previous
impairment,
then
appli-
awarding
the review the
standard
a permanently
of
provided
cation shall continue
totally
as
-in and
disabled individual lifetime bene-
for
1998) (redefining
pay-
bility requirements
injured
"[m]ethod and time of
employee
for an
who
disability”).
aggregate permanent
permanent
partial disability
had
ments for
W. Va.
Cf.
eighty-five
(1990)
percent
1994) (describ-
awards of
§
or more. See
(Repl.Vol.
Code
W.
23-4-ld
23-4-6(d) (1995)
1998) ("A
(Repl.Vol.
§
Va.Code
terms, "[mjethod
ing,
general
in
and time of
single
aggregate permanent disability
of
payments
permanent disability”).
for
eighty-five percent or more shall entitle the em-
ployee
presumption
perma-
to a rebuttable
of a
predecessors,
4. Like their
the 1995 amendments
disability
purpose
nent total
paragraph
for the
of
retained the additional
of
consideration
vocation-
(2),
(n)
Provided,
of
subdivision
this section:
how-
al
§
detailed in W. Va.Code
standards
21A-3-
ever,
fifty
That the claimant
be at
must also
least
7(m) (1993) (RepI.VoI.1996)
determining
in
the
percent medically impaired upon
body
a whole
permanent
disability.
issue of a
and total
See W.
added));
(emphasis
basis."
W. Va.Code 23-4-
23-4-6(n)(2) (1995) (Repl.VoI.1998).
Va.Code
6(n)(l)
1998)
("A
(Repl.Vol.
claimant
23-4-6(m) (1995)
Similarly,
(Repl.
prior permanent partial disability
whose
awards
Vol.1998)
conclusively presumed
injured
also
eighty-five percent
total
or more shall also be
employee
permanently
totally
be
to
disabled
by the
examined
board and must be found to
bodily
if
parts
lost certain
or the use
he/she
body
impairment
have suffered a whole
medical
statutes, however,
thereof. Unlike the earlier
fifty percent
the
request
of
in order
for his
her
stringent
review.”).
1995
eligi-
eligible
amendments created more
further
for
By
seventy
weekly
Sep
aver-
order
equal
percent
wages).
final
dated
fits
16, 1997,
re-
wages,
granted
the
age weekly
the
amendments
tember
circuit court
the
sixty-
of PTD
amount
a
award
duced the
claimants mandamus relief
commanded
percent
six
two-thirds
“to
the petition
the Commissioner
calculate
average weekly wages
re-
employee’s
according
PTD
in
ers’
benefits
the law
”
period during which
could
stricted the
....
effect on the date
Ferrell v.
benefits, ending
period of
receive such
97-MISC-2000,
[sic],
Viewig
slip op.
No.
at
receipt
employee’s
eligibility
(Cir.
County,
Sept.
Ct. of Kanawha
W. Va.
Security
benefits.
of federal
retirement
Social
1997).5
Objecting to the circuit court’s
permanent
dis-
For all awards of
total
ruling,
petition
a
for
Commissioner filed
ability
made
after
that are
on or
benefits
appeal
seeking
in
our
this Court
review of
day
February,
one thousand
second
propriety
lower court’s order. We
including those
ninety-five,
nine hundred
rejected
appeal by
the Commissioner’s
order
request
a
for an
claims in which
award
January 15,1998, declining
entered
to review
pending
the division or which were
before
the circuit
court’s decision Ferrell.
a
yet
for
litigation but not
submitted
decision,
response
to the Ferrell
decision,
payable
then benefits shall be
therefrom,
appeal
refusal of the
Court’s
age
neces-
until
claimant attains
opinions
interpreting
recent
of this
sary
age
old
retirement
to receive federal
compensa-
provisions
under the
of the Social
benefits
statutes,
Legal
tion
Division—
Services
Act,
402, in
Security
U.S.C.
Virginia
Section of the
Bureau
Claims
West
effect
the effective date
this section.
on
announced,
Programs
Employment
paid
so
Such a claimant shall be
policy
determining
March
for
sixty-
not to exceed a maximum
benefit
it would
for
percent of
claimant’s
six and two-thirds
(more
ie., whether the former
lib-
weekly
earnings,
average
wage
wherever
eral)
(more stringent)
or current
standards
earned,
time
determining
eligibility
claimant’s
percentage of
[the stated]
not to exceed
calculating
award and
amount
Virgi-
average weekly wage in
payable
govern
PTD benefits
would
nia. ...
statement,
entirety,
policy
claims. The
its
23-4-6(d)
(Repl.Vol.
provided:
1998).
d)
*7
23-4-6(b,
§
W. Va.Code
Cf.
(Repl.Vol.1994).
light
advised that
in
of the
Please be
Conley
Compensation
v.
case of
aAs
result of these revisions to the work-
[Division],
196,
199 W.Va.
Based before the Commissioner’s offi 1995 amend- policy cial ments However, statement it would became effective.11 all four law of injury employees the date of or the law of filed their for PTD bene- exposure9 date of last having fits after the amendments’ effective date.12 injury occupational responsi- tional or disease is injury sation claims with an of last award, paying ble the entire amount of the 1995. individually through either subscription or its 9. In the system, injured workers' However, Compensation the Workers’ Fund. employees are award, entitled to receive employee when benefits for is awarded a SILA occupational injuries occupational entity employing diseases. the worker at the time he/she day employee on which an is permanently totally incurred his/her disabl- commonly referred injury". to as the "date occupational injury occupational disease claims, occupational e.g., occupational disease responsible paying only portion loss, hearing occupational pneumoconiosis, "second,” award trigger- attributable to such silicosis, occupational injury the date of is deter ing, injury. (d) (1995) § See W. Va.Code 23-3-1 mined exposure,” the "date day of last or the (Repl.Vol.1998) (explaining second life employee exposed was last fund). awards and second reserve For hazards believed to have caused the contraction opinion, ease of reference in this both PTD and occupational disease. See W. Va.Code collectively SILA awards will be referred to as (Repl.Vol.1998) (discussing "in PTD awards. jury” disease"); "occupational W. Va.Code 23-4-14(a)(l) (1994) (Repl.Vol.1998) (defining that, important It is though to note even injury” disease); “date of Syl. represents approx- Commissioner that there exist pt. Comm’r, Compensation Meadows v. Workmen's 2,540 imately claims to which his announced policy apply, would these claimants must still (defining "hazard” in context of disease of occu satisfy eligibility criteria for an award of PTD pational pneumoconiosis); Dickerson v. State granted benefits before pensation. will be such com- Comm'r, Workmen's 23-4-6(n) (1995) See W. Va.Code 10-11, (clarifying (Repl.VoI.1998); 23-4-6(n) (1994) meaning "injury”). *8 (Repl.VoI.1994); 23-4-6(n) (1993) § W. Va.Code (Cum.Supp.1993); 23-4-6(n) W. Va.Code It is unclear from the record whether these 10. (1990) (Cum.Supp.1991); W.'Va.Code 23-4- employees employed by are still employers 6(n) (1986) (Cum.Supp.1990); W. Va.Code 23- they or whether have employ- terminated such 4-6(n) (1978) (Repl.Vol.1985). ment. 8. response In petitioning his written em- employees' 11. The injury upon dates of which ployers’ petition prohibition for writ of before they requests base their May for PTD benefits are Court, this the Commissioner has reiterated his 5, Stover); 16, (Danny (or August 1993 J. 1991 present policy as follows: 29, 1993) (David Adkins); 10, June May L. 1989 (Melanie McGhee); present 3, it is policy the L. Workers' Com- and November 1981 pensation Edwards). (Gregory Legal Division and Services Division entering in protestable final orders in claims in which requested the permanent claimant has a 12. The dates employees which the named disability total award or a second life filed their for PTD benefits are October award, apply 9, to the Stover); case law and (Danny 13, statutes in 1996 J. October 1996 applicable (David existence and Adkins); 15, on the date of (Melanie L. October 1996 L. or date McGhee); 22, of last compen- to all September workers (Gregory 1997 Ed-
533 relief, cally, permit this extraordinary we the invocation of writ the request their for compel “only truly request exceptional Court to the in limited and circum petitioners this apply Bldg. to the amendments Auth. v. 1995 stances.” State ex rel. School Commissioner claims, 424, to PTD Marockie, 432, PTD claimants’ 481 to these 198 W.Va. S.E.2d claimants, similarly (1996) (citations omitted). 730, situated claims of other Accord 738 determining eligibility of their purposes for Bldg. rel. Charleston Comm’n v. State ex a award and and to receive PTD Dial, to for 185, 191, 695, 479 198 S.E.2d 701 W.Va. of calculating amount PTD for the (1996). The test to determine whether relief any, which are entitled.13 Follow- if to by way proper in of a writ of mandamus is a of to ing a discussion the standard particular case is three-fold: jurisdic- invoking original cases this Court’s “ of ‘A writ mandamus will not issue mandamus, the will address mer- tion via we (1) a unless three elements clear coexist — petitioners’ its of the contentions.14 legal petitioner the right to relief duty part sought; legal a on the of
II. respondent thing peti to do the which the FOR STANDARD WRIT compel; the ab tioner seeks OF MANDAMUS remedy.’ adequate Sylla sence of another 1, Ray Billy Point ex rel. v. procedurally bus State C. This arises as a case Skaff, 190 S.E.2d 847 request by invoke this W.Va. petitioners (1993); Syllabus rel. jurisdiction way Point State ex Kuc original by Court’s 538, 170 City Wheeling, extraordinary remedy Typi- era W.Va. of mandamus. v. of wards). party juris- sparse submitted in one denied other before From the record case, appears only may of these em- this it one of suit be taken.” Mainella v. diction Stover, Danny ployees, L. been awarded Board Trustees Policemen’s Pension of (PTD (SILA) Fairmont, benefits awarded City Fund 126 W.Va. Relief February upon disability 185-86, (1943). based onset date of 487-88 27 S.E.2d Stover, 1998). any It is unclear whether Mr. Gainer, Syl. pt. Harshbarger v. employees requests for whose other Moreover, (1991). S.E.2d 399 manner currently pending, are would be able to petitioners phrased have their re- which eligibility requirements satisfy new ef- quest prohibition relief akin to an for is more Va. fectuated 1995 amendments circuit indirect attack of the court's decision 23-4-6(n). §Code presentation rather than the case in Ferrell prohibitory relief is warranted. As we which request petitioners Court to issue 13. also above, Court the Commission- noted denied prohibition prevent the Commission- writ of appeal er’s from the circuit court's decision in judgment ruling applying declaratory er from Ferrell, finalizing litigation thus the have, in that mat- County an- of the Circuit Court Kanawha addition, ter. occasion, than one on more nounced, in insofar as it instructed the Ferrell through declined to extend relief apply the 1993 and 1995 Commissioner not to extraordinary remedy prohibition when where such guise request of a collateral therefor has adversely a claim- would affect See, e.g., attack on the lower tribunal's order. rights ant’s PTD benefits. substantive receive Linger County Upshur ex rel. State Despite prohibi- supra request 5. See note (1965); County, relief, peti- problems tion Jarrett, Storage & Co. Nelson anticipate pri- tioning employers appear to be Transfer Thus, (1931). we con- 157 S.E. marily conjectural and not immediate concern petitioners’ we cannot entertain the clude that petitioners employees upon whom the those prohibition. request a writ of request have See, for mandamus relief. based 23-4-6(e)(2) (Repl. e.g., employees Vol.1998) It should noted two of (increasing payment rate certain Danny awards); employers, J. petitioning disability named permanent partial W. Va. *9 McGhee, (redefin- grant- L. have been (Repl.Vol.1998) Stover and Melanie § 23-4-16 Code proceeding this as re- ing reopening). As we ed to intervene in for claim fre- leave standards before, Nevertheless, subsequent quently spondents this cannot our have said issue thereto. solely advisory opinion respect hypotheti- respondents” a will refer with to to "the references Commissioner," controversy. except cal where otherwise to “the noted, proceeding tech- the in mandamus has purpose are constituted for the "Courts against nically brought the Commissioner resolving been making advisory of decrees aca- petitioning employers the since it is his action disputes. pleadings and evidence demic compel. legal present right seek to claim of asserted must 534 (1969).” Syllabus point powers
S.E.2d Sta- sioner shall exercise all 367 the Dean, 57, 464 duties in chapter ten v. S.E.2d 576 described this (1995). seq.], chapter article two 21A-2-1 et [§ twenty-one-a of this code. Syl. pt. Ewing Educ. v. Board Sum of of 23-l-l(a) (Repl.Vol. 503 County, mers W. Va. S.E.2d 541 1998). (1998). Thus, grant legisla- Included within this of we must ascertain whether the authority power promulgate tive is the petitioners satisfactorily “to have fulfilled these regulations implement provi- rules and to the demonstrated their criteria and entitlement chapter.” of sions this 23-1- to mandamus relief. 1(b). (1, 2, See also W. Va.Code 21A-2-6 First, petitioners have a the must “clear 14) (1996) (Supp.1998) (vesting the Commis- legal right” to the relief which seek. “[ejxercise authority sioner with gen- the to Here, inquiry petitioners the the is whether supervision eral of and make rules for the require legal right the have a clear to Com- government bureau”; authorizing the apply the missioner to 1995 amendments to “[prescribe Commissioner to uniform rules the to statutes those pertaining investigations, departmental to involving or a hearings, rules”; promulgate and allow- exposure May date of last to “[ejxercise any the Commissioner to oth- Based our of whether examination power necessary er to standardize adminis- respondent legal duty has to Commissioner tration, business, expedite bureau assure the statutory provisions to the con- promote establishment fair rules claims, below, troverted addressed service”). efficiency of the propriety our evaluation the Com- integral part An “implementing] missioner’s current those provisions compensa III, th[e]” amendments, infra, discussed Section chapter tion Virginia of the West Code is the petitioners right we find no that have necessarily implied power interpret requested relief. comprising body various statutes this of law. Next, issuing the standard for a writ of Although authority con requires mandamus us to discern whether expressly struction is not stated in the recita respondent “legal Commissioner has a tion permissible of the Commissioner’s ac duty” petitioning that do which the em- tions, previously recognized this Court is, ployers compel. seek That does that the authority Commissioner’s also incor duty legal interpret have a Commissioner porates powers those that are essential to the 1995 workers’ permit conduction of duties those that applica- such a manner as to render them are specifically enumerated. “The State ble to claims for list a date Compensation Workmen’s Commissioner of or last before amend- may only powers expressly exercise not 12, 1995, ments became effective on but granted by statute, the office but also such filed until were not after amend- powers procedural additional of a or adminis ments’ “[T]he effective date. Workmen’s trative reasonably implied nature as are as a Compensation ... is an Commissioner ad- necessary expressed powers incident officer, agency ministrative tribunal of Syl. pt. the office.” Smith v. State government State.” State ex rel. Is- Comm’r, Workmen’s Hanley, land Creek Coal Co. (1975). W.Va. See also (citations Syl. pt. Colvin v. State Workmen’s Com omitted). defining and respon- duties Comm’r, pensation Commissioner, Legisla- sibilities of the (1970)(same). S.E.2d statutorily ture has entrusted with him/her responsibility governmental the sole for the administra- When a official or ad chapter tion except agency authority matters ministrative has exerted its as are compensation pro- interpreting statutory provi entrusted to the an unclear grams performance duty council.... sion that implement it has *10 execute, chapter, administration of this historically commis- this Court has extended
535
interpretations are
interpretation,
deference if such
consis-
to such an
great deference
legislation’s plain meaning
with
and
tent
comports
accepted
with
notions
as
insofar
it
ordinary
For the
de-
construction.
reasons
construc-
legislative intent
decision, below,
III of
tailed in
this
Section
tion.
v.
Syl. pt.
labus
W.Va.
Hodge Ginsberg, 172
great
statute
ministration should
restrictive
ister
the Commissioner’s
the Workers’
with
(“
690
Trust Co. v. First W.Va.
executing
statute
245
out
intent,
charged
6,
cable.”).
tions as to the
State
sions
the administration
deference,
standing
ambiguous
as the
thereon
great weight, and
construction
charged
or overthrown unless
matter direct of each III. ruling by adverse Commissioner DISCUSSION employer by interpretation aggrieved such case, again we upon With this are called application to relevant navigate through a course though remedy Even nebulous amendments. this ex- ists, world of standpoint judicial economy, law. from the “equally presented by sole issue the alternative course is not as ben- resolution convenient, eficial, which applies and effective” as manda- concerns law to an in First, jured employee’s request mus relief. Commissioner would benefits required request injured be review exposed each for PTD when or last he/she apply govern benefits and the law believed to an hazard before the 1995 ruling effective, the claim. If the is adverse to either became amendments party, may appeals pursued, then be first to request but when file a did not Judges, Office then to Workers’ for PTD benefits until after effective Board, Compensation Appeal ultimately date of Although such amendments.16 Upon Court, to this Court. review previously had have occasion to examine the conceivably we could determine that constitutionality application and practical misinterpreted Commissioner has or errone- recent compen amendments to the workers’ law, ously applied applicable thereby ne- statutes, precise sation issue in cessitating litigation reversal and further proceeding stant was not addressed those case, particular not to mention the addi- prior cases and thus is a matter of first 2,540 reported by tional cases the Commis- See, impression. e.g., Syl. pt. Conley v. belong category sioner to to this of PTD Div., claims.15 (1997) (holding that 1993 (1993) to W. 23^4-lf amendments Va.Code Moreover, up front determination of the (Repl.Vol.1998) application do not governing for PTD benefits that was filed upon injuries which expo- are based or last pend amendments’ enactment and that was occurring sures before the amendments’ ef- effective); when amendments became fective date filed but were after such Syl. pt. Richardson, date, ex rel. State Boan greatly expedite would the resolution of (1996) By (finding ascertaining these claims. law, 1993 amendments to W. questions Va.Code 23^-23 numerous could be resolved (Repl.Vol.1998) to certainly more be unconstitutional Commissioner at the insofar beginning employee’s the PTD reduce an application process, upon receipt eligibility as which crite- federal benefits); age employed Security Syl. ria should old pt. be what Social rate Richardson, paid. Hardy PTD benefits should be Absent such a Court, definition the law costly, (ruling S.E.2d 310 lengthy, litigation, time-consuming (Repl.Vol. both 1998), before the various regarding tri- effect of 1993 amendments however, say, 15. acknowledge That is not that all appearance of all of 16. We of the Amici automatically appreciate partic- Curiae ipation. would in this case and their claimants awarded Their concerns have been considered in applications PTD benefits Rather, therefor. conjunction positions corresponding with the they must demonstrate their entitlement parties participating directly proceed- in this supra to such an award. See note ing.
537 state, of this a claim reopening compensation statutes of workers’ procedures claims, only ninety right after has a to receive benefits and the compensation ant enact- passed compensation from amendments’ days have of workmen’s is autho director 7, ment); pts. Blank- Syl. 5 and State ex rel. pay in no rized to benefits to claimant 726, Richardson, 474 196 W.Va. enship v. expressly greater amount than is authorized (holding W. 23- 906 Va.Code 2, S.E.2d Syl. pt. Dunlap v. State statute.” 4-6(n)(l) satisfy (Repl.Vol.1998) to Director, 266, Compensation 149 140 W.Va. protec- equal requirement constitutional (1965). Merritt, Boyd .2d 448 Accord v. S.E though eligibility criteria for tion even 472, 474, 106, 177 354 S.E.2d 108 W.Va. Leg- uniform, invalidating benefits is not but (1986); Bragg Compen v. State Workmen’s attempt to such amendments islature’s make Comm’r, 706, 710, 152 W.Va. 166 sation immediately upon passage). effective 162, 165(1969). S.E.2d In order to facilitate our discern statutory Given the basis of to the controvert ment of the compensation rights and resultant claims, ed find it instructive to re we remedies, primary method of ascertain the West the historical foundations of visit availability scope ing the of such benefits compensation system. Pri- Virginia workers’ meaning applica plain to look to the is 1913, employees or as a result Legisla ble statutes and to ascertain the employment en in the course of their enacting provisions at ture’s intent right recompense their joyed the to seek primary object construing a “The issue. injuries by prosecuting private give statute is ascertain effect directly against damages action cause of 1, Syl. pt. the Legislature.” intent of Smith employers. Taylor Compensa v. State Comm’r, v. State Workmen’s Comm’r, tion 140 W.Va. 86 S.E.2d (1975). 108, Ac 159 W.Va. (1955). 114, 119 With enactment Virginia Health Review cord West Care Cost Virginia estab Code of 1913 came the West 196 Hosp., Auth. Boone Memorial W.Va. system statutory lishment of of workers’ (1996). 336, 411, 326, Al 472 421 S.E.2d whereby employees’ private though rights arising and duties from the replaced were with a remedies state-adminis establishment of the workers’ distinct, frequently pre scheme of tered statutory, system primarily in this are State 1, determined, compensation Sec. benefits. arise in which there nevertheless occasions (Code 1913, 15P, Va.Code, seq. Chap. W. et ambigu interpret is called this Court (Main 657, Vol.1914); seq.) et Deller sec. uncertain, ous, vague provisions contained or 108, 110-11, 176 S.E.2d Naymick, W.Va. 342 statutes, when in the workers’ Co., (1985); 73, v. J.E. Harris 75-76 Mains necessary and realization of essential (1938). 730, 732-33, 197 10, 11 119 W.Va. S.E. statutory rights. “A statute is action, the legislative As a result it ambiguous can must be construed before employee’s for a work- source of remedies Buckalew, 1, applied.” Syl. pt. Farley v. judicial injury changed from con related (1992). 693, See 414 454 186 W.Va. S.E.2d law tort doctrines to structions common 718, Vankirk, McCoy v. 201 also W.Va. statutory rights. specifically enumerated (1997) (“[W]hen a stat 541 (Code 1913, 15P, Chap. Sec. language ambiguous, often a court ute’s 678) (Main Vol.1914). Accord W. Va. sec. territory in must venture into extratextual (1991) (Repl.Vol.1998); Del § 23-2-6 Code appropriate to distill an construction.” order 110-11, ler, 75- 342 176 W.Va. at S.E.2d omitted)). (internal quotations and citation 76; Compensa v. State Workmen’s Lester above, II, explained when in Section Comm’r, 299, 308-09, As 161 W.Va. tion body of and execution of a the administration (quoting Rhodes v. S.E.2d statutory to or en Co., delegated law has been 71, 81, 90 S.E. J.B.B. Coal governmental officer Mains, specific with a (1916)); trusted at 732- 799-800 first to such words, agency, looks or this Court “[t]he at 11. In other 197 S.E. con agency’s interpretation of the compensation benefits is officer’s right to workmen’s interpreta- such an statutory. statute. When wholly the workmen’s troverted Under legislative comports compen intent effective tion with the date for the construction, ninety days canons of we afford sation statutes after their agency’s interpretation great officer’s or date, passage, May Id. To See, Syl. pt. e.g., Shawnee deference. Virginia Legislature expressed has not Bank, 20; Syl. pt. S.E.2d 12,1995, any intent to alter the effective *13 Smith, 108, 8, 219 159 W.Va. S.E.2d 361. Court, thus, date as determined this judice sub The facts of the case are no appeal’s it that the effective date for the 1995 Thus, exception to this rule. refer to the May compensation workers’ amendments is interpretation ap- law Commissioner’s 12, Therefore, 1995. insofar as the Commis plicable challenged claims for statutory interpretation sioner’s has selected parties’ in guidance our resolution 12,1995, May operative as the date in distin dispute. guishing employees’ between claims for benefits, policy interpretation The announced a such is correct. Commissioner has applying “applicable on the law the date of then, inquiry, necessarily Our next must injury exposure[17] to all date of last work correctly whether the Commissioner has se- compensation [for PTD benefits] ers injury lected the date of law of the or date injury exposure an with or last exposure applicable last in as the law all PTD added). 12,1995.” (Footnote May To ascer occupational injury claims based an tain the correctness of this inter 12, disease incurred before pretation, Legisla we must first to the look applicable A provisions review of the legislation. See, enacting ture’s intent in of W. Va.Code 23-4-6 demonstrates that 1, Smith, Syl. 108, e.g., pt. 159 W.Va. 219 Legislature remained silent has on this 1995, Virginia Legis 361. In S.E.2d fact, point. a review of our workers’ lature amended 23-4-6. compensation jurisprudence demonstrates proceeding amendments relevant con Legislature frequently that the has declined eligibility require cern the revision of the provide guidance as to which law should injured employee satisfy ments must be govern particular request compensation may apply fore for and receive PTDa he/she direction, legislative benefits. Absent such at award and the rate which if repeatedly adopted this Court has the com- awarded, any paid. are are to be Contained governing mon law view that “[t]he statutes Legisla these within rights employer and duties of the directive new ture’s that the criteria would responsibilities claimant powers and the having apply injury to all claimants a date of of the are those in Commissioner that were exposure February or date of last or after on Smith, injury.” effect on the date of the 159 1995, 2, to all and awards of 112, (citations W.Va. at 219 at S.E.2d 363-64 pending PTD benefits made or on and after omitted). Accord v. Gallardo Workers’ Com- n(l)) 23-4-6(d, this date. W. Va.Code Comm’r, pensation 756, 179 W.Va. n. 759-60 (1995) (Repl.Vol.1998). Blankenship, 5, 177, (1988); 373 S.E.2d 180-81 n. 5 Pertee Legislature’s attempt invalidated Comm’r, v. Compensation State Workmen’s make changes immediately effective 776, 773, 318, 156 W.Va. 197 S.E.2d 320 passage February from enactments’ (1973); Ball 10, 1995, thus, Compensation v. Workmen’s impliedly, negated any Comm’r, 419, 422, 229, 156 W.Va. 194 legislative S.E.2d attempt to earlier the new (1973); 230 Syl. 7, Taylor Compensation State pt. law. 196 726, Comm’r, 577-78, 140 at W.Va. 474 S.E.2d and 196 W.Va. 86 906 W. Va. at S.E.2d 738-39, 117-18; 474 S.E.2d at The net v. State Compensation 918-19. effect Lancaster Comm’r, Blankenship, then, change 190, 192, 601, towas- 23 S.E.2d presume (defining injury” 17. We law "on the date "date of the as "the date of the injury exposure” or date of last the Commission- injury eligible that made the claimant for the injury er intended the date or last award"). particular perusal A which entitled the claimant to the PTD regulations statutes and applied. benefits for which See Kea- provide any guidance fails to further in this re- I, Rockingham Mktg. Coop. v. WCC ton & 185 gard. 140, 141, (1991) W.Va. 405 641 S.E.2d
539
‘(“
(1995)
materia,
(1942).
paid
“Statutes
must be
also 82 Am.Jur.2d Workers’
See
603
(“Workers’
(1992)
together
legislative
inten
at 47
construed
tion,
gathered
from the whole of the en
governed,
are
compensation claims
3.,
actments,
given
effect.”
contrary provision,
must be
Point
any
absence of
Sims,
Syllabus,
Graney
ex rel.
144
time of the occurrence of
State
in force at the
(footnote
added)
Syl. pt.
].
S.E.2d 886
injury....”
(emphasis
[105
W.Va.
SWCC,
Boles,
omitted)).
ex
163 State
rel. Slatton v.
W.Va.
But see Pnakovich v.
(1963).’
.Syl.
pt.
S.E.2d
Trans
W.Va.
(abandoning
allegiance
america
Fin. v. Blueville Bank
date of
Com.
“strict
Grafton,
point”
To facilitate the the statement intent as to the casé, applicability tion of our in this decision we further of W. Va.Code 23^4-6 at- hold, tempted our consistent with decision in Keaton in the 1995 amendments to this' *15 Rather, Rockingham Marketing Cooper v. WCC and section. we have arrived at the deci- I, 140, 141, desperate ative sion ease in W.Va. announced (1991),19 injury,” “date of confusing that the as it effort to make of sense and convo- application compen compensation refers to an for workers’ luted workers’ statutes that little, guidance from an arising occupational any, sation benefits contain if as to their injury, upon employee practical application.20 is the date which the As the inordinate vol- injury occupational compensation sustained the which ume of pending ren workers’ cases eligible compensation suggests,21 many ders before this Court unan- him/her applied. Thus, questions despite myriad award for which has swered remain he/she employee applies when an for an of regulations defining reg- award of statutes and benefits, injury” PTD ulating compensation “date of workers’ benefits and application procedures. is the date of the occu this Court can While undertake pational injury allegedly issues, which rendered to resolve these controverted we re- him/ permanently totally peatedly held, her disabled. we Like have have reiterated in wise, decision, we “date of expo compensation hold that last that workers’ is a sure,” creature, as it refers to an for work created and refined compensation arising See, Legislature. .g., Syl. pt. ers’ from an e benefits Dun- disease, occupational upon lap, Thus, is date which S.E.2d 448. employee exposed was last to the we could be of more scrupulously hazards assured honoring disease which Legislature’s body renders intent if the eligible compensation charged award with the creation of such law an- him/her applied. questions for which In has other swered the various that remain words, employee applies explanation when an for an unresolved.22 With of our herein, upon 19. For further of this Court's statement treatment decision reiterated and relied we Keaton, supra see note find no error in the Commissioner's decision. ’ approval interpre- 20. Our of the Commissioner’s 2,511 writing, approximately 21. As of this work- applicability tation of the of the 1995 amend- compensation pending ers' cases were before the regarding ments to W. PTD Supreme Virginia. Appeals of Court of injury claims based a date of or date of last exposure prior May should not be judice, example, 22. For case in the sub numerous approval construed as a blanket of the Commis- analysis issues arose in the course this Court’s interpretations compen- sioner's of the workers' decision, statutes, and ultimate none of which have been sation the administration of which he is Rather, that, conclusively charged. emphasize addressed defined in the statu- under the tory regulatory proceed- compensation. facts and ing or circumstances instant law workers’ light particular policy help and in of the Commissioner’s Of in our future decision of work- provide clearly hope to tion The decision in this case matter we Fund. is in this decision Legislature According it should deter- odds with intent. to the guidance to the policy March legislative consideration Commissioner’s state- mine further and/or ment where he announced which would workers’ law is law revision of the “[pres- time. for PTD appropriate at this 2,540 ently, approximately there are Ferrell referred to as ‘New Law" claims with IV. exposure a date date of last 1995.” As a result this deci- CONCLUSION sion, processed these claims will now be us- ing pre-1995 precipitated which conclusion, petitioners we find that the Fund’s today’s financial crises. With deci- the criteria for issu- have satisfied sion, majority reopened the flood- requiring of a mandamus ance writ of gates plagued profligacy that has our apply the 1995 workers’ Commissioner to compensation system. in the manner Rather, proposed. we con- have figures truly scary. If PTD are one correctly $400,000 $500,000, clude that the Commissioner dis- if award worth is practical application of 2,540 cerned the PTD applicants all of the noted above amendments, complied awards, with remain- granted were the cost to the law, body Fund would over be issuing Accordingly, exact, policy his statement. dollars. To it would BILLION $1,270,000,000.00. we rule that the law the date only half cost If of these of a awards, last determinative applicants it were receive application for $635,000,- claimant’s and calculation of to a payment would amount contrary when there exists no 000.00 from Fund. fairness *16 expression legislative intent. For majority, get claimants some will reasons, foregoing deny the writ man- in PTD award no matter what our decision is requested petitioners. fact, damus some of the claimants are case. unquestionably totally disabled and should Writ denied. get PTD. Also, majority’s holding I find the
MAYNARD, Justice, dissenting:
employees’ applications for PTD awards are
governed by
on
the law as it existed
the date
I
I
dissent because
do
believe
The re
injury particularly
unfortunate.
majority’s
in
case is consistent
decision
dispense
cent trend in our law has been
enacting
in
Legislature’s
with the
intent
favor of
with
outdated rule in
a flexible
I
1995 workers’
amendments.
legislative
approach
responsive to
at
more
by making
also believe that
the date
manage^
tempts
efficient
provide
for the
operative
determining which law
date for
Compensation Fund.
ment
the Workers’
award,
application
a PTD
to an
SWCC,
in Pnakovich v.
As this Court stated
majority
steps backward in
takes several
,
589, 259 S.E.2d
renewed date of may prove
this case to be a means which legislative
this Court will circumvent future
attempts statutory change and result
continuing judicial micro-management of the