*1 fiftеen-page order is re- Judge Nibert’s family law mas- findings that the
plete with interpreting par- made mistakes
ter applying agreement and parental
ties’ 60(b) clearly provides that a mo-
law. Rule may granted judgment be for relief 4, swpra. note a mistake. See because 60(b) addition, has found Rule this Court misappli- granted to correct
relief Zirkle, 208 In Zirkle v. the law. cation of (2000), Court 540 S.E.2d 60(b) appropriate Rule relief found that wrong standard applied court
where custody Since deciding issue. of review 60(b) relief based granted Rule
Judge Nibert law, misapplication of the
upon mistake his discretion find that he abused cannot
we entering ruling. such
IV. CONCLUSION above,
Thus, set forth for the reasons of Roane of the Circuit Court
final order af- 2001 is
County December entered
firmed.
Affirmed. S.E.2d 809 Virginia ex rel. Michael
STATE West McKENZIE, Petitioner,
M. Commissioner, SMITH, Bureau
Robert J. Programs, Employment Workers’ Division, and Simonton Products, Inc., Respondents.
Building
No. 29645. Appeals
Supreme Court Virginia.
West 22, 2002. Jan.
Submitted 28, 2002.
Decided June
Dissenting Opinion of Justice
Maynard July 2002.
Dissenting Opinion Justice of Chief July
Davis *4 Cohen, Jr., Cohen, Esq.,
Robert F. Abate L.C., Cohen, Morgantown, & for the Petition- er. Robinson, Esq., M.
James Robinson & Rice, L.C., Huntington, Amicus Curiae. Crandall, Esq., Grant Mineworkers United America, Fairfax, for Amicus Curiae Unit- ed Mineworkers America. Maroney, Virginia P. Esq.,
Thomas
West
Federation, AFL-CIO,
State Labor
Charles-
mandating the
ton,
Virginia
procedures
State
referral of
Curiae West
for Amicus
Federation,
“employer’s
petitioner
preferred
Labor
AFL-CIO.
begin,
vider for rehabilitation services.” We
Em-
Crynock, Esq., Bureau of
Richard M.
however, by
petitioner’s
discussing the
on-
Charleston,
Respon-
for
Programs,
ployment
the-job injury
subsequent
treatment.
Robert
dent
J. Smith.
McKenzie,
petitioner,
M.
Michael
Heitz,
Ramey, Esq., Misty L.
Ancil G.
respondent,
for
employed
packer
as a
Charleston,
Johnson, PLLC,
Esq., Steptoe &
(“Simonton”),
Building
Products
Simonton
Products,
Building
Respondent
Simonton
Pennsboro,
facility in
Virginia.
West
its
Inc.
job required that
lift
car
petitioner’s
he
Huffman,
Timothy
Esq.,
& Kel-
E.
Jackson
ry
weigh
up
windows
to 68 inches wide and
Charleston,
Vir-
ly,
Amicus
West
Curiae
ing
pounds.
Industry
ginia
Business
Council.
2,1998,
petitioner
strained
On October
back at
continued
work.
STARCHER, Justice.
work,
pain in
wors-
but when the
his back
seeking
petition
The instant case is
ened,
chiropractor.
with а
Af-
he consulted
to Robert J.
writ
mandamus directed
terward,
November
he filed
Smith,
Virgi-
of the West
Commissioner
claim for workers’
benefits
*5
(“Com-
Compensation
nia
Division
Workers’
with the Division.
missioner”).
charged
The Commissioner
petitioner’s
An MRI of
back revealed
the
disbursing
Compensation
with
the Workers’
petitioner
ruptured
the
had a
in his
disk
injuries in
Fund to
who
workers
receive
the
involving
lower back
a nerve root. The chi-
resulting
course of
from their
ropractor
petitioner
the
to cease
advised
ment.
23-4-1 [1989].
work,
Division,
which
in an
he did. The
petitioner
a writ of
The
seeks
mandamus
the
order dated November
ruled
compel
Commissioner to abide
the
petitioner’s
compensable
claim
and awarded
Compen-
provisions of the
certain
Workers’
petitioner
disability
temporary total
ben-
the
services,
regarding
sation Act
1,
through
1998
March
efits from December
prevent
and to
further
the Commissioner’s
23,1999.
poli-
upon regulations
reliance
and internal
petitioner
to a
The
was released to return
procedures
cies and
which mandate that
10,
limited work schedule on March
1999.
seeking
workers
rehabilitation be
petitioner’s chiropractor gave
peti-
The
the
“preferred
employer’s
referred
to them
petitioner
tioner a note
limited
which
the
provider for rehabilitation services.”
working
day
lifting,
four hours a
with no
below,
As set forth
we find that the Com-
weeks,
twisting
bending
for two
and then
Divi-
Compensation
missioner’s and Workers’
eight
day
lifting, twisting
hours a
no
system
using
employer’s pre-
sion’s
months,
bending for
at which
he
three
time
ferred
for rehabilitation
services
petitioner
would be
took
rе-evaluated.
provisions
Act.
contrary
be
to the
We
Simonton,
safety manager
the note to
the
requested
manda-
grant
therefore
the
writ of
job
was
but was told that there
no
available
mus.
required
day.
only
four
hours
employment
petitioner
sought
then
with oth-
I.
7,
companies,
job
July
er
and obtained
on
telephone
computer
wir-
Background
installing
Facts &
However,
ing.
petitioner stopped
the
work-
peti-
The instant case revolves around the
July 30,
ing on
because of
back
severe
attempts, beginning
repeated
tioner’s
pain.
1999,
March
obtain
vocational rehabilita-
1999,
August
Virginia
from the
Work-
In
the Division issued
services
West
Division”).
(“the
petitioner
back
ers’
Division
authorization for the
to have
importantly,
surgery,
laminectomy
on
and dis-
More
the case
focused
a lumbar
legality
kectomy
petitioner
was
on
regulations, policies
performed
Division’s
Additionally,
September.
petitioner
petitioner stopped working
after
due to
disability
total
temporary
injury,
employees
ceived
benefits
his
and the seasonal
were
1,
5,
through
September
April
position
told
would be no
there
after the
petitioner was
2000. The
examined
project
completed.
was
Pebruaiy
upon
doctor
based
The record indicates that Simonton related
report,
granted
peti-
doctor’s
Division
QRS employee
its concern that
disability
permanent partial
on
tioner
15%
petitioner
receiving any
was
workers’ com-
June
pensation
employee,
benefits as a “seasonal”
during
petitioner
contends that
petitioner
eligible
“is not
stаted
recovery
injury, he
from his October
for vocational rehabilitation services due to
requested
Divi-
occasions that
three
position being
position[.]”
a seasonal
sion
he
authorize that
receive rehabilitation
response,
QRS
agreed
employee
to con-
services.
tact
Division on
Simonton’s behalf “to
eligibility
correct
matters.”
A.
23,1999,
The record reflects that on March
Attempt
Petitioner’s First
to Receive
QRS
petitioner’s
repre-
contacted the
claims
Rehabilitation Services
Division,
sentative at the
and informed the
being
March
after
released
representative
petitioner
claims
being
return to work but
informed
Si-
as a
employee
“was hired
seasonal
and would
safety manager that
monton’s
no work was
eligible
not be
for vocational rehabilitation
petitioner’s
within
limi-
available
medical
repre-
services due to this fact.” The claims
tations,
petitioner
contacted his claims
agreed that “if Mr.
sentative
McKenzie was a
representative
petition-
at the Division. The
employee
seasonal
then Mr. McKenzie would
representative
er discussed with the claims
eligible
vocational rehabilitation
rehabilitation,
possibility
vocational
day,
That
services.”
same
*6
on
and March
the Division entered
by
representative
contacted
the claims
and
Quality
referring
an order
the claimant to
for
eligible
told that he was not
vocational
Services,
(“QRS”).
Inc.
Rehabilitation
The
rehabilitation benefits.
QRS
suggests
desig-
record
that
had been
Subsequently,
petitioner
an
the
hired
“preferred provider for
nated as Simonton’s
petitioner’s attorney
attorney. The
contact
Division,
by
the
and
services”
representative’s supervisor
ed the claims
was the
for rehabilitation
exclusive
Division,
supervisor
the
and the
acknowl
employees.
services for Simonton
wrong
edged
deny
the Division
in
that
was
later,
QRS
days
employee
Several
ing
vocational rehabilitation services
the
Simonton,
spoke
respondent
with
was
and
petitioner
employe
because he was a seasonal
by
petitioner
told
Simonton that the
was
However,
e.1
no action was taken because
eligible for vocational rehabilitation services.
petitioner
planning
the
was
have back
petitioner was a
Simonton stated that
the
surgery.
is,
job
employee
“seasonal”
lasted
—that
only
Following
long
company
working
petitioner’s
surgery
so
on
in
as the
the
back
particular
September
petitioner’s
project. Apparently,
by
all
the
“season-
letter
employees
off
surgeon
al”
were laid
from
was sent to the Division recommend-
Simonton
retraining
vocational
...
approximately
ing
through
December
one month
“some
larly
persons
employing
person
Workers'
Act does not con-
another
for
any
concerning
carrying
any
industry,
purpose
tain
limitation
"seasonal
form
the
on
ees,”
employees subject
W.Va.Code,
Act
and states that
stateL]”
service or business
persons
[1995],
employers
(a)
"are all
service of
and
the
does
23-2-1
definition
exclude
employed by
purpose
carrying
them the
employees,
only
"casual”
but
if
number of
business,
industry,
the
they
service or work in which
employees
period
"does not
and the
exceed three
engaged[.]”
arc
23-2-la
employment
temporary,
intermittent and
[1991],
sporadic
nature and
exceed ten
does not
cal-
days
quarter.”
Employers subject
per-
to the Act
endar
calendar
include "all
sons, firms,
Code,
(b)(4)
corporations regu-
[1995J.
associations
23-2-1
hierarchy.” This hierar-
sug-
step
record
“rehabilitation
compensation.” The
workman’s
imple-
chy
through regulations
is mandated
was received
the letter
gests that
regulation
Division.2 The
it is not mented
representative;
petitioner’s claims
by stating that if Workers’
action,
simply begins
any,
Division took
if
what
clear
determines
Compensation Commissioner
response to the letter.
injured
complete a lower-
worker cannot
hierarchy,
B.
step in
then the
numbered
step
be used.
higher-numbered
must
next
Attempt
to Receive
Petitioner’s Second
steps
hier-
first four
of the rehabilitation
Services
Rehabilitation
injured
returning
worker
archy require
10,1999, a
was sent to
letter
On November
at the same
employer,
to work with the same
representative by an
petitioner’s claims
varying de-
positions and with
or different
The letter stat-
administrator
Simonton.
steps
retraining.
two
grees The next
administrator, had “re-
ed that the Simonton
employed
injured
quire that the
worker
from ... WC
correspondence
ceived
step
without retrain-
employer,
a new
five
eligible for re-
claimant is indeed
stated the
retraining. The final
ing,
step
six with
letter
The Simonton
habilitation services.”
seven,
hierarchy, steр
requires
step
representative
Division claims
asked the
then
in a
worker be enrolled
Recourse, Inc., “the
petitioner to
refer
designed
to suit-
retraining program
to lead
provider for rehabilita-
employer’s preferred
employment in
labor market.
gainful
able
claims
“had all them
Simonton
tion” because
counselor also
The Recourse rehabilitation
QRS
months
to Recourse
transferred
Simonton,
spoke
and determined
with
ago.”
duty
provide light
modified
did
Simonton
January
In an
dated
order
However,
employees.
work to its
Simonton
Recourse,
petitioner
Division
referred
rehabilitation counselor —as
indicated
(“Recourse”)
services.
Inc.
for rehabilitation
QRS
peti-
previously
it had
advised —that
job
company had been ter-
for Recourse
tioner’s
with the
A rehabilitation counselor
minated,
petitioner,
along
positions
with the
other
subsequently
interviewed
18, 1998.
clearly expressed
employees,
both a desire
on December
petitioner
seasonal
vocational
a desire for
to reten to work and
multiple meetings
After
rehabilitation services.
counsel,
phone
calls
and his
several
Simonton,
counselor deter-
interned the
the rehabilitation
counselor
The rehabilitation
*7
eligible to
petitioner
was not
meetings, that his reha-
petitioner, in
.mined
several
services.
according
a
vocational
rehabilitation
to seven-
receive
proceed
bilitation would
15.4,
injured worker to the
regulation,
§
forth the
4.1.2. Return of the
sets
2. The
85 C.S.R.
job
employer
preinjury
and with
steps
in the reha-
with the same
sevеn
which
be followed
must
task,
injured
If a lower num-
or work
bilitation of an
worker.
modification of
work structure
hours;
injured
step
inappropriate
work-
bered
for the
er,
higher
regulations
next
injured
that "the
em-
state
of the
worker to
4.1.3. Return
regu-
priority
The
numbered
utilized.”
employer
must be
ployment
in a differ-
with the same
lation states:
position;
ent
injured
em-
of the
worker to
4.1.4. Return
professionals
Qualified
4.1.
rehabilitation
ployment
position
in a different
with the same
high-
following priorities. No
must utilize the
training;
employer
on-the-job
and with
priority
unless
er numbered
be utilized
injured
Employment
worker
a
of the
4.1.5.
all low-
determined that
commissioner has
training;
new
and without
unlikely
priorities
to result
er numbered
On-the-job training
injured
work-
4.1.6.
of
placement
injured
into suit-
worker
employer;
employment with a new
er for
gainful employment.
num-
able
If a lower
injured
in a
4.1.7.
worker
Enrollment
clearly inappropriate
priority
for the
bered
goal-
retraining program
of a
which consists
worker,
pri-
injured
higher
next
numbered
retraining designed
period of formal
plan
oriented
ority
rehabilitation
must be utilized. The
gainful employment in the
to lead to suitable
explicitly
and rationale
must
the reasons
state
market; provided,
a
that there exists
priori-
labor
rejection
for the
lower numbered
injured
expectation of the
worker
ty.
priorities
reasonable
The
are as follows:
upon
actually obtaining
employment
such
worker to the
4.1.1. Return of the
completion
program.
employer;
tire
preinjury job
with the same
was,
fact,
position
petitioner
took
legally eligi-
The rehabilitation counselor
that the
job
petitioner’s
that because the
had been
services,
for
ble
vocational rehabilitation
terminated,
pro-
“this counselor is unable to
gave
pro-
opportunity
Recourse another
steps
four
ceed with the first
the rehabili-
However,
vide the services.
the rehabilita-
hierarchy!.]”
tation
As the counselor stated
agree
tion
at
not
counselor Recourse did
with
report:
her
assessment,
replied
the Division’s
petitioner’s
repre-
I contacted [the
claims
speak
she would have to
to Simonton’s attor-
sentative at
and informed
Division]
ney
agree
provide any
she
before
could
him, per my
pre-
with
conversation
rehabilitation
petitioner.
services to the
injury employer, the claimant
was
eli-
apparently
rehabilitation counselor
indicated
gible to receive continued vocational reha-
supervisor
to the Division
that she
call
would
bilitation
had
services since he
been termi-
back
she
once
had received advice from Si-
from employment
nated
with Simonton
attorney.
monton’s
Windows on
as
result
12/18/98
at
rehabilitation counselor
Recourse
terms and conditions of his contract with
responded
never
phone
back to the Division’s
employ-
Simonton Windows as a seasonal
call.
ee.
words,
petitioner
other
because the
was a
employee,
“seasonal”
he could not be re-
C.
job
turned to
with Simonton —and there-
complete
steps
fore could not
first
Attempt
four
Third
Petitioner’s
at
hierarchy.
the rehabilitation
The rehabilita-
Rehabilitation Services
tion
aрpears
counselor
to have
taken
Accordingly,
on June
the Division
position
petitioner
that because the
could not
petitioner
referring
entered an order
successfully complete the
four steps,
first
he
Services,
company
Vass Vocational
steps
was ineligible
through
for
five
seven
preferred provider
was not a
for rehabilita-
hierarchy.
employer.
tion services for
Vass
Voca-
1, 2000,
May
On
the Recourse rehabilita-
petitioner’s
tional
con-
assessed the
skills and
petitioner
counselor
sent
a letter
dition,
plan
and drafted
stating that his vocational rehabilitation file
whereby
petitioner
would seek
was closed3
ineligible
because he was
training,
ment with
new
without
petitioner’s
at-
services. The
provided
step five
the rehabilitation
torney disputed
this declaration
the re-
plan
hierarchy.
The rehabilitation
also
counselor,
spoke
habilitation
with
su-
petitioner
vided that the
would
tem-
receive
pervisor
by telephone.
Division
porary
disability
total
benefits
October
supervisor agreed
petitioner’s attorney
through
pay
November
the Recourse rehabilitation counselor
job-search expenses. This
wrong
finding
was
that the
plan
ap-
was submitted
the Division for
ineligible for vocational rehabilitation ser-
proval.
*8
supervisor
vices. The
indicated she would
carry
peti-
with
through
Recourse
the
petitioner’s
The Division
not act
did
on the
it
“pre-
tioner’s rehabilitation because was a
plan.
petitioner’s
rehabilitation
The
claims
employer company,”
ferred
or she would representative
respond
repeated
failed
provider
find another
of rehabilitation ser-
phone
messages
calls
e-mail
Vass
vices.
plan
ap-
the
was not
Vocational. Because
petitioner
petitioner
petition
proved,
in
the
did not receive
The
states
that on
benefits,
disability
supervisor spoke
temporary total
and had
June
the Division
by telephone
difficulty paying
expenses
with the rehabilitation
the
counsel-
involved
job.
supervisor
searching
or at
explained
Recourse. The
for
Vass
there-
Vocational
clear,
services,
peti-
3. To be
the record indicates that the
and not the Division.
being
tioner’s file was
closed
the
of
granting
for
to close
The traditional standard
decided, on December
fore
Syllabus
Point
mandamus relief
stated
petitioner’s vocational file.4
the
Wheeling,
City
ex
v.
of
rel. Kucera
State
of
attorney
spoke with
then
petitioner’s
The
(1969):
538, 170
153 W.Va.
S.E.2d
representative at the
claims
petitioner’s
the
19, 2000, to determine
December
Division on
not
A writ of mandamus will
issue unless
plan
ap-
was never
why the rehabilitation
(1)
legal
a clear
three elements coexist —
representative indicated
claims
proved. The
sought;
petitioner to -the relief
the
plan, and had
the
she had never received
(2)
legal duty
part
respondent
on
of
the
regarding the status of
inquiries
no
received
thing
petitioner seeks
to do the
which the
she did not
also indicated that
plan. She
(3)
compel;
another
the absence of
“private rehab.” The
usually
with
work
adequate remedy.
she
indicated
representative
claims
met,
prerequisites
this
“Once these
case, and would
petitioner’s
would review
to issue the writ is
Court’s decision whether
denying
approving or
either
issue
decision
largely one
discretion.”
ex rel. Bill-
of
State
plan.
the vocational
Pleasant,
City
ings v.
Point
II. plan drafted Vass Vocation al, to contin and authorized Vass Vocational Standard Review providing rehabilitation services ue matter, initial we review stan- As an petitioner.5 petitioner was awarded issuing of mandamus. a writ We dard for temporary disability as well. total benefits mandamus an ‘ex- “[s]ince have held argue Division and the both remedy, it traordinary1 should be invoked petitioner has because received Billings City rel. sparingly.” ex State for sought, petition he a writ relief Pleasant, 301, 303, 460 Point 194 W.Va. moot. mandamus should be dismissed as (footnote omitted). (1995) 436, 438 S.E.2d however, petitioner, has use of mandamus been contends “The traditional agency system “employers’ preferred providers or an to confine administrative pre- that has devel- to a lawful exercise its rehabilitation services” inferior court any regulation jurisdiction compel oped ‘to it to authorized in scribed exer- statute, authority duty actually it its when is its to do cise violation Compensation Act.6 Woi’kers’ so.’” Id. given closing challenged "pattern file 6.The also
4. The was this: reason managers not issu- claim manager believes that it is unethical This case Virgi- ing protestable required by orders as West participate Mr. McKenzie voca- advise However, § nia Code the Division 23-5-1.” plan if the rehabilitation tional rehabilitation in its *9 by *10 gainful employment injury. an after provider of rehabili- employer’s preferred injured employees encourage to to order to workers return tation services Division provider employment encourage then contacts the to and assist job. The and employ- to the list that simply employers providing added suitable and is selecting a rehabilitation ser- injured employees, uses it shall be a Division ment to vendor. priority vices to commissioner achieve likely early to identification individuals concedes that there is The Commissioner and to assess need rehabilitation services authority statutory regulatory for the no injured needs of these Instead, option. the Com- second Division’s employees. goal It shall be the rehabili- began brief that states missioner tation to return workers to em- years ago” when a vendor of rehabil- “several comparable in ployment which shall be approached the Commission- itation services pay which the individual work and to that wanted to be stating that her firm er prior injury. If performed a return ser- provider” of rehabilitation “preferred possible, comparable work employer. The then- a Charleston vices for goal of rehabilitation shall be return the proposal “approved this Commissioner employ- individual alternative suitable option] concept the second [for ment, job using possible all alternatives provider was born.” preferred modification, restructuring, reassignment as- beginning, the Commissioner From training, will so that the individual “developed inter- that the Division has serts require- productivity with his or em- “necessary return her procedures” nal with or, ployer necessary, if may approve a with another em- Division ments” so that the employer’s pre- ployer. Legislature further finds vendor as responsibility it is em- services. the shared of rehabilitation ferred ployer, physician and employee, in his brief that The Commissioner states cooperate the de- commissioner option, are 16 rehabili- the first there under process velopment of a rehabilitation de- participating with 99 tation vendors who signed promote reemployment for the petitioned to employers establish who injured employee. them workers. managed programs for care ap- Additionally, option, under second however, has, Legislature imposed proximately 50 rehabilitation vendors are upon limits rehabilitation services. For ex- “employers’ as listed the Commissioner 23-4-9(b) W.Va.Code, ample, provides that 1,532 em- preferred providers” representing expenditures “for vocational rehabilitation ployers. shall not exceed ten thousand dollars for begin our the Commis- We examination injured employee.” expendi- one To control system by con- “preferred provider” tures, sioner’s statutorily autho- the Commissioner sidering statutory basis rehabilitation. rized to establish a schedule of “maximum integral part of the West Rehabilitation is an paid reasonable amounts” to be to rehabilita- compensation system. As Virginia workers’ providers service the Commissioner states, Act the Workers’ empowered “preferred to enter into 2R4-9(a) W.Va.Code, [1999]: is, managed agreements,” vider and care agreements it is Legislature hereby finds that between the Division and the W.Va.Code, goal program provider. 23- compensation See 3(a)(1)[1995].7 to assist workers to return to suitable 4— stales, 23-4~3(a) may pertinent part: ees entitled thereto as be hereunder follows: (a) shall The workers division (1) ... Such sums for rehabilitation services alter from time to time as the establish and reasonably may required. ... as be The divi- appropriate be division determine to reasonably that which is sion shall determine schedule of maximum reasonable amounts meaning required within tire this section paid providers ... of rehabilitation .... The to enter into division is authorized services.... preferred provider managed agree- pay care The division shall disburse personal injuries fund for to such ments. such
299
argues
regulations
compensa-
The Commissioner
sions
this Court the workmen’s
system referring
support the creation of a
given
tion statute of this
must
State
clаimants,
not to
Division’s chosen
interpretation
liberal
in order that its benefi-
services, but
vider of rehabilitation
to an
purposes may
cent
not be
defeated
employer’s
provider,
order to
chosen
strict construction of its terms.” Walk v.
expenditures.
duce
Comm’r,
223,
Compensation
State
134 W.Va.
228,
(1950).
791,
sum,
58 S.E.2d
794
however,
petitioner,
argues that
The
Compensation
“[t]he Workmen’s
Law is re-
system referring
claimants to
entire
nature,
medial in
given
its
and must be
employer’s preferred provider for rehabilita-
accomplish
pur-
liberal construction to
support
tion services has no
the law.
3,
pose
Syllabus
McVey
intended.”
Point
v.
First,
petitioner
contends that
Co.,
Chesapeake
Telephone
& Potomac
103
Compensation
specifically pro-
Act
Workers’
(1927).
519,
also,
W.Va.
Should change provider cooperate or her his health care and the commissioner development pi-ocess a employer if or her has established and de- managed program signed promote reemployment maintains a care for the in- health W.Va.Code, 23-4-9(a). consisting preferred provider organi- jured employee.” However, program, рrocess zation or a health maintenance must 4—3(b)provides, pertinent provider select a new health care shall 23— part: through managed program. such care More- over, foregoing provisions agreement of this subsection if the division enters into an prohibit employer be deemed shall not compensa- approved which has been participating provider preferred from organization in a programs performance council with a program or health mainte- or a provider program, preferred organization or organization managed organi- nance or care organization a health maintenance or other or other zation medical cost containment delivery organization organi- health care or medical, lationship providers with the zations, change if then claimant seeks Provided, hospital or other health care: pro- her initial health care his or choice of however, nothing That in this section shall and if the vider claimant’s does be deemed to restrict the claimant organization provide access to such an pro- or health care to select his her initial general part employer's of the health in- injury compensable vider for treatment of a benefit, surance then the claimant shall be Should a claimant thereaf- or disease. such provided with a care new health change ter wish to his or her health care provider organi- preferred from the division’s provider and if her has es- his or program, orga- zation or health maintenance managed tablished maintains a health delivery organi- nization or other health care program consisting preferred pro- care of a organizations him organization available to or program, zation vider a health organization, maintenance then the her. claimant plan to “shall.” “It to a rehabilitation be devel- is well established that the word “pursuant ‘shall,’ a rehabilitation oped language and monitored the absence in the injured employee.” for each W.Va. showing contrary fessional part statute intent on the 4—9(b). Code, Legislature, should be 23— afforded man- datory Syllabus connotation.” Point Nel- statutory It is a basic con rule Virginia Employees v. West Public son Ins. “[sjtatutes pari struction materia Bd., (1982). S.E.2d 86 together legisla and the must be construed *13 in question believe that statutes We the are intention, gathered from as the whole of tive unambiguous, impose and and enactments, clear mandato- given Syl effect.” the must be 3, Sims, ry upon Graney parties. duties and restrictions the Point ex rel. v. labus State (1958). 72, 105 144 S.E.2d 886 are W.Va. We mindful that:
also hold We therefore that under W.Va.Code, 23-4-3(b), an statutory prohib of workers’ com- Given basis remedies, rights pensation entering and ited from into contract resultant primary ascertaining provider purposes method of provid health care for availability scope seivices, seivices, and of such benefits is to ing including rehabilitation plain applicable meaning look injured employee-claimants in the course Legislature’s and to statutes ascertain employment. and аs a result of them Fur enacting provisions issue. intent thermore, W.Va.Code, 23-4-3(b), a under primary object construing “The a stat- claimant has a to select his or her initial give is to effect to ute ascertain and provider provider health care of rehabili 1, Syl. pt. Legislature.” intent tation services for the of a treatment com Compensation v. Smith Workmen’s State pensable injury or If disease. the claimant Comm’r, 108, 219 159 S.E.2d 361 W.Va. change his pro thereafter wishes to or her (1975). vider, employer participates and if in a Industries, Vieweg, ex rel. ACF Inc. v. State costs, program manage health care then 525, 537, 176, 204 S.E.2d 188 W.Va. 514 provider through the claimant choose a must (1999). accord, In Martin Workers’ employer’s program. managed care If ., 210 557 W.Va. Div claimant change wishes to thereafter (2001). 324, 334 S.E.2d provider, her if the and does not statutes, petitioner these managed asserts that participate program, in a care but together, impose responsibility solely read participate managed the Division does in a Commissioner, upon and not the program, Division care then the choose er, develop and execute provider through the claimant’s new its man plan for an aged program. Simply put, care rehabilita claimant, prohibit and the Commissioner tion seivices to be accorded are the same requiring a claimant to receive rehabili- currently given any treatment other solely seivices from rehabilitation tation on-the-job health care or medical services for provider under contract with the claimant’s injuries. emplоyer. Additionally, we hold that when language of a “Where the statute that a Commissioner determines claimant ambiguity plain and without clear services, a candidate for rehabilitation W.Va. meaning accepted resorting is to without Code, requires 23-4-9 Commissioner Syllabus interpretation.” to the rules of develop plan implement claim 2, Elder, 571, Point State v. W.Va. 165 152 ant’s rehabilitation The Commis seivices. (1968). accord, Syllabus 108 Point S.E.2d must, sioner with the assistance of the claim 1, City Lewisburg, Peyton v. 182 Council of develop 297, (1989); professional ant’s rehabilitation Syllabus 532 W.Va. S.E.2d plan, monitor Rivesville, the rehabilitation the em Mallamo v. Point Town of (1996). claimant, physician the claimant’s ployer, the stat W.Va. S.E.2d 525 cooperate must petitioner are and the Commissioner cited couched utes duty using development plan. mandatory of a the word the rehabilitation terms Syllabus Point that, language of a light statute.” asserts petitioner 28-4-9, W.Va.Code, Craig, 211 Corp. v. W.Va.Code, Transmission 23-4-3 CNG (2002). system using an em- 564 S.E.2d the Commissioner’s provider ployer’s preferred case, statutory provi- instant In the sum, law. violation of is in services First, employer’s sions are clear. the extent the Com- argues that to of rehabilitation agreement with policies and regulations, internal missioner’s “preferred employer’s services to be the Act, regu- those with the procedures conflict against provider” prohibition violates the void and unenforcea- policies lations providers con- contracts with health care agree. ble. We 23-4-3(b). Whether tained statutory construc a rule of As “approved” a contract has been or not such tion, repeatedly held that: we have “managed care as a the Commissioner provid- “preferred plan” or as an informal regulations drafted Any rules or *14 purpose arrangement, faithfully the intention er” the contract’s reflect agency must expressed in or services Legislature, provide the medical rehabilitation of the injury compensable Where a statute for an controlling legislation. to a claimant unambiguous language, purview of the Workers’ Com- contains clear within the regulations give prohibit- must agency’s pensation an rules Act. a contract Such unambig- ed, same clear and language the demonstrates the that and the instant case language that the Legislature’s adoption force and effect uous for the reasons statute. in the prohibition. commands the 4, University v. Syllabus Point Maikotter employer pattern of an This case shows Trustees, 691, 206 527 W.Va. Bd. W.Va. exercising its cho- substantial influence over (1999). Syl similarly in We held 802 S.E.2d professional, all with the sen rehabilitation Dept. 3 of Rowe W.Va. labus Point acquiescence of the Commissioner. When 230, Corrections, 650 170 W.Va. 292 S.E.2d by petitioner the Division the was referred (1982)that: QRS, preferred provider employer’s the first Legislature law that the It is fundamental services, QRS of rehabilitation refused agency an may delegate to administrative petitioner provide ground on the the services regulations to make rules and power to the QRS employee. was a deter- “seasonal” which the implement the statute under employer’s insistence —that mined —at exercising рow- that In agency functions. legally eligible for petitioner was not er, however, may agency an administrative benefits, upon rea- reliance rehabilitation regulation which is inconsistent not issue essence, soning supported by law. In with, statutory which alters or limits its employer’s preferred rehabilitation authority. posi- employer’s for became advocate Contractors, also, Anderson Anderson & See eligible petitioner was not 803, 807-08, Latimer, 257 162 W.Va. Inc. v. benefits, petition- and not an advocate for the (1979) (“Although agency S.E.2d er’s return to the workforce. power promulgate rules and may have Similarly, petitioner was referred regulations must when the regulations, the rules Recourse, Inc., employer’s pre- second and conform to the laws enact- be reasonable sum, specialist provider, stat- ferred the rehabilitation Legislature.”). “[a] ed that, rule, not, ute, consulta- un- at Recourse determined after or an administrative modified, employer, petitioner could ‘interpretation,’ tion with the guise of der the job revised, Syllabus his or rewritten.” never be returned to Simonton amended employee he was a “seasonal” Advocate Div’n v. Public because Point Consumer —and Comm’n, determined that 182 W.Va. 386 S.E.2d therefore Service (1989). complete steps four judiciary final au- could not the first “The is the construction, hierarchy. This statutory determination thority on issues of regula- contrary reject to the Commissioner’s obliged to administrative and we are tions, step in require that if a lower contrary to the clear constructions rehabilitation, clеarly hierarchy inap- starting the rehabilitation “is ferred to all at step worker, propriate five.9 for the the next
higher priority must be utilized.” When a plaintiff believing Skaggs, he would supervisor at the Division told Recourse services, receive some rehabilitation met with interpreta- rehabilitation counselor that her employer’s preferred provider for reha- incorrect, legally tion was the rehabilitation meeting, signed bilitation At services. he provide counselor refused services without listing a document the rehabilitation hierar- consulting approval first to seek the of—the chy indicating accepting he was employer’s attorney. Again, employer’s voluntarily and that his rehabilitation would preferred provider of rehabilitation services begin later, step five. Several weeks employer, became an advocate for the and plaintiff job was fired because the petitioner. not the needs of had, plaintiff stated document, signing voluntarily indicated Coal, Skaggs v. Eastern Associated job. he was to ever to his unable return (2002), S.E.2d 769 we consid- Skaggs We held in plaintiff that the had egregious pattern ered an fact that demon- prima established case of discrimina- facie purpose strates the statute. The Act, tion under the Workers’ plaintiff, on-the-job injury, who received an finding employer’s alleged use of the to return to released work two doc- system (and Instead, tors. the defendant *15 removing as a employees means of from its apparently without the of involvement the payroll questions regarding raised of fact Commissiоner) plaintiff determined that the plaintiff whether the was discriminated should to be referred vocational rehabilita- against filing as a of result a workers’ com- tion. pensation claim. examining plaintiff, Without the the defen- requirement The Commissioner’s that a dant that plaintiffs determined the rehabili- employer’s claimant receive services from the begin five, tation step whereby was to preferred provider of rehabilitation services plaintiff getting employ- would be assisted W.Va.Code, 23-4-3(b), also violates ment with a new train- without preserves a workers’ claimant’s ing. agent An of the defendant testified that right provider the initial of choose ser- injured workers were never to voca- referred Commissioner, previously vices. The indi- tional initially rehabilitation unless it cated, admits that there is a “weakness” determined that worker could not be system regarding right the claimant’s employer. returned to work with the provider select his or her initial of rehabilita- standard, agent that was a stated unwrit- W.Va.Code, 23-4-3, tion services. Under an policy, upwards ten and that former employer may certainly participate in a man- employees aged plan of the defendant had been as a care such health maintenance by your 9. An affidavit submitted into the record 12. an That Affiant has now and has had Robinson, attorney, “repre- M. who James has preferred several where cases rehabilitation years sented of over 22 thousands claimants” in providers assigned provide rehabilita- were practice, prob- a contains similar statement of tion services and none of cases has a these preferred employer's lems use of with the an preferred provider rehabilitation recom- provider for rehabilitation Mr. services. Robin- beyond step mended five in rehabilitation son states: hierarchy any of services nor has ever stated providers 11.That there are rehabilitation impaired that a claimant is so not benefit as to employees provide that hire services to rehabilitation; training claimants have no education your ... [three That Affiant checked with qualify that field them to work in the rehabilitation attorneys] other each claimant’s ... and (e.g. testimony Affiant has taken the Compensation these Practitioners Workers' employed by pro- a individuals preferred could relate no incident of rehabili- degree marketing vider who had a training with no provider going beyond step tation 5 or ever or classes rehabilitation that testi- stating got job impaired specialist fied he a claimant was so as to ren- as a rehabilitation by answering [provider] totally with the an ad in a der disabled[.] he/she Pennsylvania newspaper); (HMO) priority may preferred provider higher No numbered be uti- organization (PPO). However, lized has deter- statute unless comniissioner organization injured priorities all lower initial- mined that numbered preserves unlikely placement to result in particular of a ser- ly his or select injured gainful worker into suitable vice.10 employment. using preferred Lastly, system added). (emphasis § 15-4.1 C.S.R. services violates the viders of rehabilitation words, regula- other the Commissioner’s own 23-4-9 the Com- mandate of place responsibility classifying tions implement plan for a develop and missioner in the hier- claimant’s condition example, For con- rehabilitation. claimant’s archy Commissioner; yet C.S.R. statute, § trary to this 85 C.S.R. 15-13.5 regulation § 15-13.5 contradicts this “employer need not obtain the states gives responsibility to employer. full We approval on prior of the Commissioner only regulation supported think the former is injured pertinent reha- to an worker’s issue Act, by the while the latter not. regulation, bilitation services.” Under therefore We hold the Commis complete control has over regulations, policies procedures sioner’s rehabilitation,11 though even claimant’s regarding to an “em referral claimants contrary by clearly intent statute indicates ployer’s preferred provider for rehabilitation regulation Legislature. As such the does contrary language services” are the clear Leg- laws enacted not conform the Act, the Workers’ islature and void unenforceable. void and therefore unenforceable. Contracts regulation also oth- contradicted by employers “preferred providers with their Commissioner, regulations er enacted provide ser services” regulations pertaining namely the to the re- job employees vices to violate hierarchy. regulations, W.Va.Code, 4—3(b), Those habilitation and the Commission 23— 15-4, § require found at C.S.R. which are employer’s er’s or initial of claimants referral *16 “qualified professionals” to uti- “preferred providers” rehabilitation to a those violates prioritiеs right in the rehabilitation of a initial lize seven claimant’s to his or her choose However, regulations specifi- provider, in claimant. rehabilitation service as stated 23-4-3(b). Furthermore, cally state: factor(s) employees employers utilizing in 10. We note that for the commissioner to consider given opportunity determining any permanent par- or PPOs are to the amount HMOs disability disability physicians participating permanent a tial choose from list of total injured might preserving employ- which the HMO award to worker oth- with the or PPO — provider. erwise be entitled. choice of health care Under the ee's suggest preferred system employers' employers' The that preferred briefs Commissioner’s services, providers impose habilitation often difficult reha- providers for rehabilitation goals, and then right bilitation terminate rehabilitation to her ee has no whatsoever choose his or by cooperate” when the claimant “fails provider. to rehabilitation completing required goals. tire given example by parlies One actual is a petitioner and 11. The briefs of the amici curiae claimant, step five of the hierar- rehabilitation suggest system, giving this chy, required jobs apply to in a who was for 30 rehabilitation, control over ally claimant’s eventu- ill, period. two only The week claimant became and power gives substantial de- to jobs. employer’s applied for The rehabil- claim, indirectly and termine the outcome of a to specialist itation terminated the claimant's voca- deny severely ability injured any a сlaimant program tional rehabilitation because of permanent disability receive benefits. "non-cooperation” program. claimant's with the regulations, § The rehabilitation C.S.R. 15- regulations, Under the Commissioner’s 2.2.1, following requirement cooperate" that a contain the claimant's "refusal to could have re- "cooperate” any disability permanent claimant with a rehabilitation sulted in a reduction However, plan: might vider's rehabilitation have award she received. extremely cooperate "through vigor- An refusal worker’s asserts advocacy by lawyer,” process with the assessment ous her the woman was participate in an authorized rehabilitation allowed to continue in vocational rehabilita- plan showing good program. without tion cause is a regulations policies payroll grower payments and abdi- and Virgi- Commissioner’s West duty per year. and nia develop cate Commissioner’s exceed million dollars plan eligible implement I am Pilgrim’s thankful that Pride chose employer’s preferred provid- claimants to the Virginia. do It business West is obvious er of rehabilitation services. that its the numbers above contribution duty has a legal The Commissioner clear economy is substantial. State’s While develop implement and grateful company I am chose to do busi- claimants, plans eligible cooperation 1,600 employ ness in our state and of our claimant, employer, with and the workers, surprised. wonderful I am little physician, claimant’s the assistance Why? eight Consider this. Of the states monitoring by claimant a rehabili- Pilgrim’s operation, which Pride has its professional. petitioner, tation The Virginia compensation West rates situated, similarly claimants fact, In highest. are far the its West initially choose their of rehabilita- Virginia paid by Pilgrim’s rates exceed those services, tion free from the constraints of Pride in the seven other states combined in by employers contracts for those services. which it does business! Look at the num- petitioner’s right to relief from exist- compensation bers. premi- Total workers’ ing regulations policies of the Commis- paid Pilgrim’s equaled ums Pride clear, sioner discern no rem- we other $3,895,539. amount, $2,468,201 Of this were edy granting requested other than relief. paid in Virginia. astonishing West This is considering only company’s 7% the IV. words, employees work here. In other Pil- grim’s paid Pride 63% of its total workers’ Conclusion premiums compensation behalf of 7% of writ granted of mandamus is comparison, its workforce. In in the seven moulded. business, in which paid other states it does $1,407,583 compensa- Writ Granted as Moulded. total of in workers’ $22,848 premiums including only in Ar- Justice, $228,930 MAYNARD, dissenting. kansas and in Texas.1 round Pilgrim’s figures, Pride’s total (Filed 2002) July dollars, bill nationwide is 3.9 million and 2.5 Pilgrim’s Corporation Pride is the sec- paid Virginia million of in West alone. largest poultry producer ond in the United Virginia, addition West very States. it has There businesses them *17 Texas, Arkansas, Arizona, operations operate Virginia. must in West nature Carolina, Oklahoma, Pennsylvania, North These include extractive industries such as Virginia. coal, products and gas, you operate Its are sold under and if timber. But business, Pride, Pilgrim’s Wampler Pilgrim’s la- such as Pride and Foods which can service, States, anywhere food and bels retail frozen entree locate in the consid- United above, ering you customers. Its net sales for fiscal 2001 were the numbers set forth would largest 2.2 Virginia? billion dollars. As in West locate While there are Hardy County, Virginia, Pilgrim’s many good West reasons for businesses locate 1,600 here, workers, employees. including has It high-quality Pride more than an effi- 47,000 annually transportation transports system, cooperation than more tractor- cient feed, officials,2 loads of live birds trailer and finished from local and state state’s Moorefield, products compensation sig- and out of and its onerous workers’ rates are report, quality employees; Virginia 1. This information from a dated is the fact West 11/11/01, chickens; H, presented which was to a optimal committee area to raise Corridor Virginia Legislature the West an officer of the extremely important which is means of trans- Pilgrim's Corporation. Pride cooperation portation; and excellent from local officials.1 Pilgrim's report, its Pride listed 11/11/01 positive things Virginia: about West its excellent naturally injures limiting That all workers their any would business nifieant factors choosing opportunities employment locate here. within West before consider Virginia. Pilgrim’s Pride under- example of companies to invest Few want here be- Vir- problem with the West a serious scores system. I cause: compensation am ginia workers’ majority opinions convinced (cid:127) state, by the not Comp Workers’ is run the effect Repass, which have
McKenzie and enterprise. private liberalizing compensation workers’ of further (cid:127) directly appealed to the Cases law, joining problem. I am only add to the Half the Supreme workload state Court. two cases Davis’s dissents these Justice settling high court what should be wholeheartedly with her agree I because tasks. administrative sepa- applicable I law. write analysis of the (cid:127) liability ais new The unfunded debt very what I will rately fear be to discuss share, employers don’t want to thus slow- majority opinions impact that adverse ing development to a crawl. economic development will on economic (cid:127) compa- Some the 185 self-insured state. fold, dumping nies could their Workers’ system compensation workers’ present responsibilities Comp onto other Nobody really deep very is in trouble. ers. system’s un- amount of the knows the exact (cid:127) Rulings by Supreme the state Court anywhere liability. range Estimates funded payments beyond have liberalized benefit dollars than two billion to more 1.8 intent, original driving up thus My guess is rough own billion dollars. costs. liability may greater than the unfunded (cid:127) system companies Some beat everyone agrees dollars. While three billion they pay premiums not do should. compensation system is in that the (cid:127) cash, a substantial infusion of Health-care costs have mushroomed. dire need significant disagreement as there (cid:127) many Too old claims were never fund- are, doubt, no problem which causes of the i.e., properly, in full. ed complex. say that many Some this, light the state’s economic pays out too Division Workers’ development putting are like efforts say money in frivolous claims. Others much рaint pre- coat of an Edsel fresh on system is or that under funded tending isit new. paying fair share employers are them This will not The state work. needs Daily Mail premiums. The Charleston liability up its face unfunded once Big Debt” cently ran an editorial titled “The for all. sys- concerning the workers’ Ray But as State Senate President Earl say crises. I cannot it tem’s fiscal Because really “Nobody said: Tomblin knows how better, reproduce I that editorial here in much debt we there.” have out entirety.3 its owes, how much Until the state knows simple: concept is A worker problem long And as remains. as the job employer. deserves from his aid *18 remains, comp problem al- workers’ is an Legislature up the set the Work- ship on the of state. batross Compensation as a of man’s Fund means lengthy, aiding without workers briefly to this I would like discuss Court’s costly litigation. liberalizing payments “beyond role benefit original exemplified years, than name intent” which is the more the has the
Over
Lawyers
program.
Repass.
As I have
changed.
took over the
McKenzie
said be-
fore,
They
regularly
transformed
into a series of aster-
this Court
conducts de novo
compensation
development.
appeals,
of
isks that
slow economic
review
workers’
Mail,
Editorial,
Daily
4A.
June
at
ton
Big
Tire
The State Needs A
Debt:
Fund,
The Charles-
Comp
Workers’
Handle On Its
time,
adjudicated
majority
already
pours
been
before
same
of this Court
which have
Division,
Judges,
gasoline
the
Office of
and Workers’
fire.
the
Board,
Compensation Appeals
regularly
Accordingly, I dissent.
in favor
claimants.
these bodies
of
reverses
way
this
the Court doеs
overuse
One
DAVIS, C.J., dissenting.
plain
liberality
rule of
in contravention of
the
(Filed
2002)
July
statutory provisions.
example
One
will suf-
(1995) expressly
§ 23-4-6a
right
only thing
fice. W.Va.Code
“The
to dissent
the
occupational
judge
appel-
makes
tolerable for a
of an
provides
the decision
life
late court.”1 As is
following
evident
the numer-
pneumoconiosis board made
a hear-
opinions
separate
ous
I have authored this
shall
ing
be affirmed “unless the decision
term,
frequently
I find ever more
the need to
reliable,
clearly wrong in
proba-
view the
my
dissent,
right to
urge my
exercise
and to
and substantial evidence on the whole
tive
torturing
refrain from
brethren to
the law of
Court, as a
practice,
record.” This
standard
state,
this
usurping the role of the
and/or
mandate,
abrogates
Legislative
applies
this
legislature, to achieve
result du
desired
them
rule,
liberality
disregards
findings of
so,
jour.
I
again,
disagree
And
once
must
board,
occupational pneumoconiosis
majority.
the decision of the
grants
higher
occupational
the claimant
justified
pneumoconiosis
than can
award
be
brought
simple request
This case was
aas
by the evidence.
McKenzie for a
Michael
writ mandamus
compel the
to
Commissioner
Workers’
eases,
In the two instant
once
Court
(hereinafter
Compensation Division
“the
again
compensation
skews
to
law
Commissioner”)
provide
him with voca-
claimants, contrary
Legislative
favor
clear
Although
tional rehabilitation services.
Specifically, disability awards and
intent.
requested
granted
services
were
Mr.
higher
payments will now
thanks to the
be
during
pendency of
ap-
McKenzie
this
newly-mandated Range of
Model method
peal,
majority
to dismiss
declined
injuries
spine,
fact
evaluate
and the
Instead,
majority
case as moot.
ruled
claimants
have a
now
to select
claimant,
only
opposed
the Com-
initial health
them
care
rehabilita- missioner, may select his or her vocational
input by
employer.
tion services with no
providers.
rehabilitation service
To reach
pay-
larger
undeniable
will
result
holding,
majority
physical
this
confuses
ments made
the Workers’
rehabilitation,
and vocational
misuses the ex-
expense
at
companies
Division
like
mandamus,
traordinary remedy of
and ex-
This,
turn,
Pilgrim’s Pride.
West
makes
liberality beyond any
rule of
tends the
Virginia
many
less
than
desirable
other
anticipated by
legislature
bounds
or our
in which to
states
locate business.
predecessors
Consequently,
on this Court.
below,
I
the reasons set out
dissent.2
past
years,
Legisla-
Over
several
A. Rehabilitation Services: Vocational
place
steps
has taken
ture
the workers’
Physical
versus
system back
compensation
on solid financial
Court,
footing.
by issuing opinions
This
like
types
are two
There
Repass,
McKenzie
opposite.
has
done the
ferred to in the workers’
stat-
hot,
summer,
dry
In the midst of
one utes,
physical.
vocational and
One of the
easily imagines
Legislature furiously
glaring problems
majority
most
with the
fighting
opinion
distinguish
subdue the wildfires of workers’
is its failure to
between
while,
liability
types
It
compensation unfunded
these two
is crucial that
services.
Douglas,
granted
Challenged 4
1. William O.
America
Mr. McKenzie the rehabilitation services
*19
(1960).
sought,
pursued
Mr.
he
remedy
McKenzie could
See,
appeal.
e.g.,
in this court via an
Corp.,
Skaggs
type
Eastern
212 W.
2.
note that I do not condone the
con-
v.
Assoc. Coal
Va.
I
C.J.,
(2002) (Davis,
allegedly engaged
309
“
unambig-
implement
is clear and
to
providing
‘[w]hen
a statute
method for
voca-
tional
legislative
plain
intent is
rehabilitation services to
uous and
the statute
claimants.
courts,
The Commissioner has
this
interpreted
exercised
discre-
should
by developing
duty
of
aforementioned list.
case it is
the courts not
such
”
apрly
but to
the statute.’ Hall v.
construe
Because
actions of the Commissioner
County
208
Mingo,
Board
Educ.
discretionary,
of
of
improper
of
were
for the
534, 539,
624,
(2000)
S.E.2d
W.Va.
541
629
grant
majority to
of
the writ' mandamus to
Syl.
1,
(quoting
pt.
v.
Cummins
State Work-
impose
judgment
its own
over that of the
781,
Comm’r,
Comp.
152
166
men’s
W.Va.
Commissioner. This Court has “character-
(1969)). Moreover,
562
also
“[i]t
S.E.2d
is
purpose of
[of
ized the
the writ
mandamus]
‘duty of
this Court
avoid whenever
the enforcement of an established
possible a
of a
which
construction
statute
corresponding
the enforcement of a
im-
inconsistent,
absurd,
unjust
un-
leads
or
duty
perative
imposed by
created or
law.”
” Hall,
1,
reasonable results.’
208 W.Va.
Syl. pt.
State
Cummings,
ex rel. Ball v.
539,
(quoting
393, 398,
310 (1924). majority’s compensation appeals.”). Contrary to holding in this The 154
S.E. exploitation, liberality of merely perceived a the rule corrected error unabashed easе this historically has in com- by in been used workers’ the Commissioner exercis- committed authority. in a did discretionary pensation In the ab- cases manner that not ing his legal finding principles trample that the Commissioner’s and a sacrifice basic sence of arbitrary capricious, authority it and upon legislative was of ex- actions were wrong extraordinary simply government. to reme- of use ecutive branches mandamus in this manner. dy of dissenting opinion Repass In my in v. majority ultimate of the deci result 86, Div., Comp. 212 Va. 569 Workers’ W. long case a of in this is to overrule line sion (2002) J., (Maynard, joining), I S.E.2d 162 of of prohibiting the use a writ precedent explain liberality, that of in detail the rule to manner dictate the in which mandamus reasonableness, by which must be mollified agency government should exercise its dis to should never be used as an excuse inter- cretionary authority. majority has pret statutory language plain, or that is to precise in mandated the manner which judicial engage improper legislating. in See may exercise discretion Commissioner 102, Mitcham, 104, Ala.App. also v. Ford 53 develop selecting a method for vocational re (1974) 34, (“liberality 298 of con- So.2d 36 by providers, permitting habilitation service point proceed not struction should to such only claimants the selection. The to make judicial legislation.”); as to amount to Deese majority’s of decision has made the writ Co., Expert v. Lawn Southeastern & Tree by a tool used mandamus to be the Court (1982) 275, 277, 140, 306 293 S.E.2d 143 N.C. any every government and action control (“liberality beyond not ... should extend This of of extension the writ desires. new [statutes], clearly expressed language th[e] of basis, has is mandamus no constitutional and enlarge ordinary not our courts dangerous separa a real and threat legislature meaning of the terms used powers in this tion of doctrine embodied legisla- judicial in engage method of League ex state’s constitution. See State rel. judiciary [Consequently, tion. ... should Virginia Tom Women Voters West v. of blin, upon something ingrafting avoid law 579, 565, 355, 209 W.Va. 550 S.E.2d 369 omitted, ought has [it] been believes (2001) (Davis, J., dissenting) (“Integral (citations and internal been embraced.” separation powers is the notion that omitted)); Corman, quotation re marks In government its each of the branches of has (“[C]ourts 966, (Wyo.1996) 909 971 P.2d components own constituent own de its guise not under the of liberal construc- free functions.”). fined compensation tion to extend worker’s bene- reasonably fits ... fall within that do Liberality C. Rule of (citation omitted) (emphasis statute.” add- Finally, troubling, majori- most ed)). ty’s justi- liberality reliance the rule majority judice, fication to statutes this ease. the case sub has rewrite liberality employed judicially rule of this and other workers’ cases Court,9 majority requirements recently legislative this cannot decided create existing disturbing reasonably gleaned its members have demonstrated statutes. simply touting liberality wrong. rule As one court trend to ration- Such action it, put imply authority liberality rule of “does not overstepping alize this Court’s See, liberality goals. e.g., or that common order desired boundless achieve Div., disregarded.” Comp. Martin v. 210 sense is Civic Ac- Workers’ Christian (2001) 270, 285, 324, 241, 246, (May- McCuen, 557 339 v. 318 Ark. S.E.2d Comm. (1994). nard, J., type (observing 608 dissenting) this S.W.2d illogical engaged “routinely libеrality crusading brazen and Court cites the rule majority appropriately justify it to this uses its decisions case See, Div., Corp., e.g., Repass Comp. W. Coal 212 W. Va. v. Eastern Assoc. Workers' (2002). (2002), Skaggs Va. v. S.E.2d 769 S.E.2d 162
3H Quinn deed, dissenting opinion represents yet case exam- denounced another State, Cal.Rptr. 15 Cal.3d ple majority determination *22 (1975) 761, (Clark, J., 539 P.2d dis- liberality the rule of use undermine senting): regulation statute or designed executive construction, statutory promote
[T]he rule liberal the fiscal health our workers’ by majority, compensation system. regard, relied on does not In this I invest power agree this court with to administer Stephen work dissent in L.H. fit_“[H]ow L.H., ers’ as we “[jjudicial see Sherry espousing activ- ‘liberality' far ... extend would seem thing; judicial stupid ism is one activism (1) depend upon two considerations: quite another.” 398 n. permitted by wording latitude (1995) C.J., n. 2 (Neely, S.E.2d construed; (2) statute is to be dissenting). permitted, the latitude within such limita I am at a loss as to what it will take tions, by reviewing views tribu majority to realize there is a future nal. objec The first is a limitation of an generation of workers who will need the ser- character; subjective tive the second is healthy of a vices com- viable workers’ personal limitation. the latter When pensation system. The decision this ease former, ignores question may [a] well simply step by majority in a another interpretation arise as where liberal journey leading ultimately com- to workers’ begins.” ends and nullification ... We pensation system so afflicted unreason- temptation must eschew the become incapa- laws that will utterly able become crusaders. providing legitimate ble of claimants with the (Internal omitted). citations Without some they desperately benefits services so majority, modicum of restraint our need. compensation system may worker’s soon suc- irreparable damage. cumb to I foregoing, In view of I am dissent. Maynard authorized to state that Justice D. The End of the Road for West joins dissenting me in opinion. this Virginia Workers’ System majority in
The decision of the this case
represents judicial a form of unbridled activ-
ism that is an principles insult
statutory developed construction
Court integrity to maintain the of the inde-
pendent
government.
branches of state
In-
notes
brief that
has settled this issue
will
Workers’
[the]
be authorized
Com-
not
stating
petitioner,
Compensa-
pensation
the Workers'
Mr. McKenzie
Division to reimburse
attempting
tion
has
expenses
for
to
Commissioner
his time and
while
gainful employment
a new
obtain
with
determined,
pro-
by
...
as
documented
er.
Order,
managers
posed
that claim
is-
Consent
protestable
Apparently,
in claims where such
sue
orders
Simonton has contested this order
required
Compensa-
be
in accordance with W.Va.
filing protest
would
a
with the Workers’
managers
§
Judges.
claim
Code
23-5-1
that the
Officeof
297
Syllabus
preferred
Point 1
providers
of State ex rel.
for rehabilitation ser-
Carter,
Lilly
vices,”
v.
63 W.Va.
public
S.E. 873
great
of
interest to workers
(1908),
general
this Court established the
capable
repetition.
this State and is
of
If
regal'd
with
by stating:
doctrine
mootness
this
simply
Court
this
dismissed
action as
moot,
may
future claimants
af-
adversely
be
questions or
propositions,
Moot
abstract
system.
fected
this
of
possi-
Because
nothing
of
avail
the decision which would
bility that the Division’s continued utilization
rights
determination of
controverted
system may
of
escape
this
review at the
persons
property,
of
or
not properly
of
level,
appellate
address the
we
merits of this
cognizable by a court.
exception
case under the Kinder-Israel
However,
Syllabus
Point 1 of State
rel.
ex
the mootness doctrine.
Kinder,
M.C.H.
v.
W.Va.
S.E.2d
(1984),
we outlined a well-established
provides
Workers’
Act
exception to the mootness doctrine in cases
benefits to
who
per-
workers
have “received
present
similar to the
case:
injuries
resulting
sonal
in the course of and
A case is not
though
rendered moot even
from
employment!!]”
their covered
W.Va.
party
litigation
change
has had a
Code, 23-4-1 [1989]. The benefits available
longer
status such that
he no
has
such
include rehabilitation services
“voca-
legally cognizable
litigation
interest in the
on-the-job
tional or
training, counseling, as-
or
the issues
lost their adversarial
obtaining
appropriate temporary
sistance
vitality,
such
capable
repe-
issues are
if
site,
permanent
work
work duties or work
yet
(Empha-
tition
ivill evade review.
modification,
crutches,
hours
...
artificial
added.)
sis
limbs, or
approved
other
appli-
mechanical
Syllabus
Point 1 of
Israel
Israel
medicines,
ances,
medical,
surgical, dental
Comm’n,
Secondary
Schools Activities
or hospital treatment!.]”
23-4-
(1989),
182 W.Va.