Conley v. Workers' Compensation Div.

Decision Date20 February 1997
Docket NumberNo. 23677,23677
Citation483 S.E.2d 542,199 W.Va. 196
CourtWest Virginia Supreme Court
PartiesEtta Lee CONLEY, Appellant v. WORKERS' COMPENSATION DIVISION and Hercules, Inc., Appellees.

F. Cody Pancake, III, Daniel R. James, Barr & James, Keyser, for Appellant.

John L. McClaugherty, George E. Roeder, III, Jackson & Kelly, Morgantown, for Hercules, Inc.

DAVIS, Justice:

This is an appeal by the appellant herein and claimant below, Etta Lee Conley, from a decision by the state Workers' Compensation Appeal Board (Appeal Board). The Appeal Board's ruling reversed the Workers' Compensation Office of Judges' (OOJ) decision that the appellant sustained a compensable psychiatric injury while employed with the appellee, Hercules, Inc. 1 Appellant assigned as error the Appeal Board's application ofW.Va.Code § 23-4-1f (1993) to reverse the OOJ decision. 2

A. FACTUAL AND PROCEDURAL BACKGROUND

The relevant facts in this case are intertwined with the appellant's personal life and her employment with the appellee. To start, the appellant has been married twice and has one child, an adult son, born from her first marriage. The appellant lives with her son and mother. The appellant's son was in the Navy during the Persian Gulf War. In January of 1991, he sustained a severe head injury during a training exercise. He was hospitalized for several weeks before being medically discharged from the Navy. The record also reflects that during the course of her life the appellant has suffered numerous physical problems.

The appellant began work with the appellee in October of 1978, as an explosives operator. The record indicates that the appellee manufactured rockets in Mineral County as a United States defense contractor. During a January 6, 1993, deposition of the appellant she chronicled years of verbal abuse and harassment by two male co-workers, Bob Phillips and Rick Dyer, as well as disturbing and insulting "pranks" played on her by other employees. The appellant described how she found a Depends (adult diaper) on her workstation on one occasion and other female articles at her work station on another occasion. The appellant indicated that from about 1984, to the day she walked off her job in 1990, she ate lunch and took her breaks in the women's bathroom in order to avoid being harassed and insulted. She testified that during the period when her son was in the Navy and preparing to go to the Gulf conflict, she would find paper-made depictions of dead and mutilated soldiers at her workstation.

The appellant, during her deposition, testified to the verbal abuse she suffered at the hands of her co-workers, Mr. Phillips and Mr. Dyer. It was testified to by the appellant that Mr. Phillips and Mr. Dyer routinely threw things and made loud banging noises in her presence, as a way of simulating a bomb going off. The appellant testified that this was done to scare her while she assembled bombs. On December 18, 1990, an incident occurred where Mr. Phillips threw an object on a box of igniters that were located behind the appellant. The appellant testified that this was dangerous because an explosion could have occurred. The appellant left work on December 18, 1990 and never returned. 3

The appellant also testified at her deposition that she twice tried to commit suicide, as a result of the harassment and insults she faced at work. The first incident occurred in 1986, when she sat on a railroad track waiting for a train to come and run over her. The second incident occurred in 1990, when she cut her wrist. Additionally, the appellant was hospitalized on four separate occasions at the psychiatric unit of Somerset Hospital--Cumberland, Maryland, during the period covering March 1991 to March 1993. 4

On August 27, 1991, a few months after her second discharge from the psychiatric unit at Somerset Hospital, the appellant filed a claim for workers' compensation benefits due to alleged compensable psychiatric impairment. On December 4, 1991, the Commissioner of the Workers' Compensation Fund issued a terse, one sentence denial of the claim as follows: "The disability complained of was not due to an injury received in the course of and resulting from employment."

Appellant protested the Commissioner's denial to the OOJ. By an order dated August 30, 1995, the OOJ reversed the Commissioner's denial of compensability and held: "The claimant has satisfied her evidentiary burden of demonstrating a mental or emotional injury in the course of and resulting from her employment as a result of a continuous and intentional harassment and humiliation." The appellee appealed the decision of the OOJ to the Appeal Board.

By order dated May 31, 1996, the Appeal Board reversed the decision of the OOJ on two grounds: (1) "The Board finds the claimant's psychiatric condition allegedly due to harassment from co-employees is not an injury received in the course of or as a result of her employment," and (2) "The Board finds this claim to be a mental-mental claim which is non-compensable." The appellant filed this appeal citing, as grounds for reversal, only the second reason found by the Appeal Board for its decision. We address both grounds used by the Appeal Board.

B. STANDARD OF REVIEW

We pointed out in the single syllabus of Rushman v. Lewis, 173 W.Va. 149, 313 S.E.2d 426 (1984) that: " 'This Court will not reverse a finding of fact made by the Workmen's Compensation Appeal Board unless it appears from the proof upon which the appeal board acted that the finding is plainly wrong.' Syl. pt. 2, Jordan v. State Workmen's Compensation Commissioner, 156 W.Va. 159, 191 S.E.2d 497 (1972), quoting, Syllabus, Dunlap v. State Workmen's Compensation Commissioner, 152 W.Va. 359, 163 S.E.2d 605 (1968)." We have associated the plainly wrong standard with the review of evidentiary findings. We held in syllabus point 3 of Ruby v. Insurance Com'n of West Virginia, 197 W.Va. 27, 475 S.E.2d 27 (1996) that " '[e]videntiary findings made at an administrative hearing should not be reversed unless they are clearly wrong.' Syllabus Point 1, Francis O. Day Co. v. Director, Division of Environmental Protection, 191 W.Va. 134, 443 S.E.2d 602 (1994)." Moreover, the plainly wrong standard of review is a deferential one, which presumes an administrative tribunal's actions are valid as long as the decision is supported by substantial evidence. Syl. pt 3, In re: Queen, 196 W.Va. 442, 473 S.E.2d 483 (1996); Frymier-Halloran v. Paige, 193 W.Va. 687, 695, 458 S.E.2d 780, 788 (1995).

It was noted by this Court in West Virginia Judicial Inquiry Commission v. Dostert, 165 W.Va. 233, 235, n. 3, 271 S.E.2d 427, 428, n. 3 (1980) that "we are not required to, and do not, judge [the Appeal Board's] legal conclusions by a 'clearly wrong' standard." 5 (Citation omitted.) As we said in Barnett v. State Workmen's Compensation Com'r., 153 W.Va. 796, 812, 172 S.E.2d 698, 707 (1970), "[w]hile the findings of fact of the appeal board are conclusive unless they are manifestly against the weight of the evidence, the legal conclusions of the appeal board, based upon such findings, are subject to review by the courts." Conclusions of law are subject to de novo scrutiny. Syl. pt. 3, Adkins v. Gatson, 192 W.Va. 561, 453 S.E.2d 395 (1994); Syl. pt. 1, Randolph County Board of Education v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989). Where the issue on an appeal is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review. Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995); Syl. pt. 1, University of West Virginia Bd. of Trustees on Behalf of West Virginia University v. Fox, 197 W.Va. 91, 475 S.E.2d 91 (1996).

C. RETROACTIVE APPLICATION OF W.VA. CODE § 23-4-1f

Appellant argues that the Appeal Board committed error in applying W.Va.Code § 23-4-1f to...

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