Moore v. K-Mart Corp., 12–1127.

Citation234 W.Va. 658,769 S.E.2d 35
Decision Date05 February 2015
Docket NumberNo. 12–1127.,12–1127.
PartiesJennifer MOORE, Claimant Below, Petitioner v. K–MART CORPORATION, Employer Below, Respondent.
CourtSupreme Court of West Virginia

George Zivkovich, Esq., Parkersburg, WV, for Petitioner.

Michael A. Kawash, Esq., Robinson & McElwee PLLC, Charleston, WV, for Respondent.

REVERSED AND REMANDED

WORKMAN, Chief Justice:

In this workers' compensation appeal, the claimant/petitioner, Jennifer Moore (Petitioner), challenges the validity of a regulation insofar as it denies reimbursement for medically necessary intravenous chelation therapy

when the therapy is performed in a physician's office. Having studied the record and reviewed the arguments of the parties in consideration of applicable legal authority, we conclude the portion of the regulation challenged is unreasonable and inconsistent with the Workers' Compensation Act, specifically West Virginia Code § 23–4–3 (2010), and hereby invalidate it. We reverse the order of the Workers' Compensation Board of Review (“BOR”) and remand this matter for entry of an order directing that Petitioner's reasonable expenses for medically necessary chelation therapy be reimbursed.

I. FACTUAL AND PROCEDURAL HISTORY

Petitioner worked for the K–Mart Corporation (Respondent) for more than thirty years. During the course of her employment, Petitioner used belt sanders and grinders to refurbish furniture. She worked in a small room with poor ventilation and was exposed to furniture dust and metal dust. Petitioner developed symptoms of tingling and numbness in her feet.1 Following medical testing, her treating physician, Jonathan Murphy, M.D., an internal medicine specialist familiar with the principles of toxicology, diagnosed Petitioner with peripheral neuropathy

due to toxic exposure to heavy metals at the workplace.2 Petitioner filed a claim for workers' compensation and following litigation, the claim was ruled compensable.3

In 2008, Dr. Murphy began treating Petitioner with intravenous chelation therapy

and her symptoms have improved. In layman's terms, the process of chelation therapy is simple: it is a chemical process in which a synthetic solution is injected into the bloodstream to help remove heavy metals4 and/or minerals from the body.5 Dr. Murphy has extensive experience performing this therapy in his office; he states there are no chelation programs in hospitals in West Virginia that treat chronic heavy metal toxicity. The record is undisputed that this treatment is medically necessary to treat Petitioner's compensable condition.6 In this appeal, Petitioner is seeking reimbursement for these medical expenses.

Petitioner appeals the August 29, 2012, order of the BOR, which denied her request for reimbursement for medical expenses for intravenous chelation therapy

from May 1, 2008, through October 15, 2010.7 The BOR denied reimbursement for these medical expenses pursuant to West Virginia Code of State Rules § 85–20–62.2 (2006) which provides, in part, that: “The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will not reimburse for IV chelation therapy performed in office.”8

In so ruling, the BOR reversed a decision of an Administrative Law Judge (“ALJ”) with the Workers' Compensation Office of Judges (“OOJs”). The ALJ had reversed the claim administrator's order denying reimbursement for chelation therapy

, concluding that reimbursement was appropriate because [t]he Claim Administrator must provide medically related and reasonably required medical treatment, health care or healthcare goods and services under the W.Va.Code § 23–4–3 and 85 CSR 20.”

II. STANDARD OF REVIEW

Petitioner contends the BOR erred in reversing the OOJs' order granting reimbursement for medically necessary intravenous chelation therapy

. Our review of workers' compensation appeals is guided by the criteria set forth in West Virginia Code § 23–5–15 (2010):

(b) In reviewing a decision of the board of review, the Supreme Court of Appeals shall consider the record provided by the board and give deference to the board's findings, reasoning and conclusions, in accordance with subsections (c) and (d) of this section.
....
(d) If the decision of the board effectively represents a reversal of a prior ruling of either the commission or the Office of Judges that was entered on the same issue in the same claim, the decision of the board may be reversed or modified by the Supreme Court of Appeals only if the decision is in clear violation of constitutional or statutory provisions, is clearly the result of erroneous conclusions of law, or is so clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor of the board's findings, reasoning and conclusions, there is insufficient support to sustain the decision. The court may not conduct a de novo re-weighing of the evidentiary record. If the court reverses or modifies a decision of the board pursuant to this subsection, it shall state with specificity the basis for the reversal or modification and the manner in which the decision of the board clearly violated constitutional or statutory provisions, resulted from erroneous conclusions of law, or was so clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor of the board's findings, reasoning and conclusions, there is insufficient support to sustain the decision.

Resolution of this matter requires us to interpret a provision contained in the West Virginia Code of State Rules and our review is therefore de novo. “Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review.” Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep't of W.Va., 195 W.Va. 573, 466 S.E.2d 424 (1995) ; Hale v. W.Va. Office of Ins. Com'r, 228 W.Va. 781, 784, 724 S.E.2d 752, 755 (2012). With these principles in mind, we consider the arguments of the parties.

III. DISCUSSION

The sole issue we address in this appeal is whether Petitioner is entitled to receive reimbursement for medically necessary intravenous chelation therapy

when the therapy was performed in her physician's office. Petitioner urges this Court to invalidate the challenged portion of West Virginia Code of State Rules § 85–20–62.2 as arbitrary and capricious. She maintains the BOR's decision is tantamount to a denial of medical treatment in contravention of West Virginia Code § 23–4–3,9 which requires the claim administrator provide medically related and reasonably required medical treatment, healthcare or healthcare goods and services. Respondent, conversely, argues the medical treatment at issue should be denied consistent with the regulatory bounds of the workers' compensation system.

We begin by recognizing the Workers' Compensation Act provides benefits to workers who have “received personal injuries in the course of and resulting from their covered employment[.] W.Va.Code § 23–4–1 (2010). Under the Act, the term “personal injury” includes occupational disease. W.Va.Code § 23–4–1(b). “One of the basic purposes of workmen's compensation legislation is to impose upon industry the cost of medical expenses incurred in the treatment and rehabilitation of workers who have suffered injuries in the course of and as a result of their employment[.] Syl. Pt. 2, in part, Ney v. State Workmen's Comp. Com'r, 171 W.Va. 13, 297 S.E.2d 212 (1982).

Pursuant to West Virginia Code § 23–4–3b (2010), the Workers' Compensation Commission established guidelines for health care treatment reasonably required for various types of injuries and occupational diseases. W.Va.Code § 23–4–3b(1). See Syl. Pt. 10, Simpson v. W.Va. Office of the Ins. Comm'r, 223 W.Va. 495, 678 S.E.2d 1 (2009) (upholding constitutionality of statute whereby Legislature specifically delegated its rule-making authority for medical management of workers' compensation claims and awards of disability).

According to the agency regulation at issue, a claimant will be denied reimbursement for intravenous chelation therapy

performed in an office. W.Va.Code of State Rules § 85–20–62.2. However, an administrative regulation is not, itself, the equivalent of a statute. “To be valid, a regulation promulgated by an administrative agency must carry out the legislative intent of its governing statutes.” Hale, 228 W.Va. at 785, 724 S.E.2d at 756. As a rule of statutory construction, we have repeatedly held that

[a]ny rules or regulations drafted by an agency must faithfully reflect the intention of the Legislature, as expressed in the controlling legislation. Where a statute contains clear and unambiguous language, an agency's rules or regulations must give that language the same clear and unambiguous force and effect that the language commands in the statute.

Syl. Pt. 4, Maikotter v. Univ. of W.Va. Bd. of Trs., 206 W.Va. 691, 527 S.E.2d 802 (1999). The [p]rocedures and rules properly promulgated by an administrative agency with authority to enforce a law will be upheld so long as they are reasonable and do not enlarge, amend or repeal substantive rights created by statute.” Hale, 228 W.Va. at 786, 724 S.E.2d at 757 (quoting Syl. Pt. 4, State ex rel. Callaghan v. W.Va. Civil Serv. Comm'n, 166 W.Va. 117, 273 S.E.2d 72 (1980) ); see also, Anderson & Anderson Contractors, Inc. v. Latimer, 162 W.Va. 803, 807–08, 257 S.E.2d 878, 881 (1979) (“Although an agency may have power to promulgate rules and regulations, the rules and regulations must be reasonable and conform to the laws enacted by the Legislature.”).

At the outset of this Court's analysis, it is imperative to acknowledge what arguments Respondent fails to advance. Importantly, Respondent does not argue the regulation was promulgated for health and safety concerns. Based on our review of the record, we discern no medical rationale for the distinction between chelation therapy

performed in an office and chelation therapy...

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