Davies v. West Va. Office of The Ins. Comm'r

• Decision Date: 01 April 2011
• Docket Number: No. 35550.,35550.
• Citation: 227 W.Va. 330,708 S.E.2d 524
• Court: West Virginia Supreme Court
• Parties: Timothy E. DAVIES, Appellantv.WEST VIRGINIA OFFICE OF the INSURANCE COMMISSIONER,andAlcan Rolled Products–Ravenswood, LLC, Appellees.

227 W.Va. 330

708 S.E.2d 524

Timothy E. DAVIES, Appellant

v.WEST VIRGINIA OFFICE OF the INSURANCE COMMISSIONER,andAlcan Rolled Products–Ravenswood, LLC, Appellees.

No. 35550.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 8, 2011.Decided April 1, 2011.

OPINION TEXT STARTS HEREWest CodenotesHeld InvalidW.Va. Code St. R., § 85-20-64.5

Syllabus by the Court

1. “When it appears from the proof upon which the [Workers' Compensation Board of Review] acted that its finding was plainly wrong[,] an order reflecting that finding will be reversed and set aside by this Court.” Syllabus point 5, Bragg v. State Workmen's Compensation Commissioner, 152 W.Va. 706, 166 S.E.2d 162 (1969).

2. “Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review.” Syllabus point 1, Appalachian Power Co. v. State Tax Department of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995).

3. W. Va.C.S.R. § 85–20–64.5 (2004) is invalid and cannot be applied to carpal tunnel syndrome impairment ratings assessed under Table 16 of the American Medical Association's, Guides to the Evaluation of Permanent Impairment, at 57 (4th ed.1993).

Edwin H. Pancake, Charleston, WV, for the Appellant.H. Toney Stroud, Steptoe & Johnson PLLC, Charleston, WV, for the Appellee, Alcan Rolled Products–Ravenswood, LLC.

DAVIS, Justice:

In this appeal from a decision of the Workers' Compensation Board of Review (hereinafter referred to as “the Board of Review”), Timothy E. Davies, claimant below and appellant (hereinafter referred to as “Mr. Davies”), appeals his award of 2% permanent partial disability (hereinafter referred to as “PPD”) for carpal tunnel syndrome. Mr. Davies contends that a proper application of the relevant Workers' Compensation rule, W. Va.C.S.R. § 85–20–64.5 (2004), results in his entitlement to a 6% PPD award. We find that W. Va.C.S.R. § 85–20–64.5 is invalid as it applies in this case. Therefore, we reverse the 2% PPD award granted by the Board of Review, and reinstate the 6% PPD award granted to Mr. Davies by the Workers' Compensation Office of Judges.

I.FACTUAL AND PROCEDURAL HISTORY

Mr. Davies, a millwright employed by Alcan Rolled Products—Ravenswood, LLC, the appellee (hereinafter referred to as “Alcan”), developed carpal tunnel syndrome in his right wrist in the course of and resulting from his employment. His subsequently-filed Workers' Compensation claim was ruled compensable on June 5, 2007. Mr. Davies underwent surgery on September 5, 2007. After a period of recuperation and physical therapy, he returned to work on November 19, 2007. The Claims Administrator for Alcan, who is self-insured, referred Mr. Davies to Dr. Paul Bachwitt for a PPD evaluation. Dr. Bachwitt examined Mr. Davies on January 3, 2008, and concluded that he had reached his maximum medical improvement. Applying the American Medical Association's Guides to the Evaluation of Permanent Impairment (4th ed.1993) ¹ (hereinafter referred to as “the AMA Guides Fourth”), Dr. Bachwitt determined that Mr. Davies suffered a 6% whole-person impairment as a result of his carpal tunnel syndrome. Dr. Bachwitt used Table 16 of the AMA Guides Fourth to calculate Mr. Davies' impairment rating.² However, Dr. Bachwitt then interpreted paragraph 64.5 of the Workers' Compensation rule titled “Ranges of partial disability awards for common injuries and diseases.” W. Va.C.S.R. § 85–20–64.5.³ This rule limits the PPD award that may be granted to a claimant for carpal tunnel syndrome impairment to 0%—6% for each affected hand. Dr. Bachwitt interpreted this rule, and concluded that it allowed awards of 1% to 2% for mild carpal tunnel syndrome, 3% to 4% for moderate carpal tunnel syndrome, and 5% to 6% for severe carpal tunnel syndrome. Because Mr. Davies' 6% whole person impairment under the AMA Guides Fourth was indicative of only mild carpal tunnel syndrome, Dr. Bachwitt recommended he be awarded 2% PPD pursuant to W. Va.C.S.R. § 85–20–64.5.

Accordingly, by order entered January 21, 2008, Alcan's claims administrator granted Mr. Davies a 2% PPD award for his carpal tunnel syndrome. Mr. Davies appealed the award. The Workers' Compensation Office of Judges (hereinafter referred to as “the OOJ”) reversed. The OOJ found that W. Va.C.S.R. § 85–20–64.5 contained no language to support the interpretation given it by Dr. Bachwitt. By order entered dated January 29, 2009, the OOJ granted Mr. Davies a 6% PPD award based upon Dr. Bachwitt's conclusion, prior to his application of W. Va.C.S.R. § 85–20–64.5, that Mr. Davies had sustained a 6% whole-person impairment under Table 16 of the AMA Guides Fourth.⁴ Alcan then appealed. By order dated September 2, 2009, the Board of Review reversed the OOJ and reinstated the claims administrator's award of 2% PPD. It is from this order that Mr. Davies now appeals.

II.STANDARD OF REVIEW

The general standard for this Court's review of decisions made by the Board of Review is set out in W. Va.Code § 23–5–15(b) and (d) (2005) (Repl.Vol.2010), which state:

(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[.]

....

(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.

This statutorily-designated standard for our review is in accord with this Court's prior holding that, “[w]hen it appears from the proof upon which the [Workers' Compensation Board of Review] acted that its finding was plainly wrong[,] an order reflecting that finding will be reversed and set aside by this Court.” Syl. pt. 5, Bragg v. State Workmen's Comp. Comm'r, 152 W.Va. 706, 166 S.E.2d 162 (1969).

Finally, to the extent that our resolution of this matter requires us to interpret provisions contained in the West Virginia Code of State Rules, our review is 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 West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995). See also Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) (“Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.”). With the forgoing standards in mind, we will address the issue raised in this appeal.

III.DISCUSSION

Mr. Davies argues that the Board of Review erred in reversing the OOJ's decision that granted him a 6% PPD award. According to Mr. Davies, the OOJ correctly concluded that Dr. Bachwitt improperly interpreted W. Va.C.S.R. § 85–20–64.5. Alcan, on the other hand, contends that the Board of Review was correct in reversing the OOJ and granting Mr. Davies a 2% PPD award based upon Dr. Bachwitt's calculations.

To resolve the issue raised in this appeal, we must consider the proper application of W. Va.C.S.R. §§ 85–20–64.1 and 64.5, which state:

64.1 Pursuant to W. Va.Code § 23–4–3b(b), the Commission or Insurance Commissioner, whichever is applicable, hereby adopts the following ranges of permanent partial disability for common injuries and diseases. Permanent partial disability assessments shall be determined based upon the range of motion models contained in the Guides Fourth. Once an impairment level has been determined by range of motion assessment, that level will be compared with the ranges set forth below. Permanent partial disability assessments in excess of the range provided in the appropriate category as identified by the rating physician shall be reduced to the [sic] within the ranges set forth below:

....

64.5. Carpal Tunnel Syndrome Impairment: An injured worker who can otherwise show entitlement to a permanent partial disability award for carpal tunnel syndrome shall be eligible to receive a permanent partial disability award of 0%–6% in each affected hand.

Upon our review of the foregoing sections, and for the reasons more fully set out in our discussion below, we find them to be ambiguous as they pertain to carpal tunnel syndrome. This ambiguity is demonstrated by the different applications of the rule advocated in these proceedings,⁵ and by the observations of the OOJ.⁶

Because the rule is ambiguous, we may endeavor to construe it to give effect to the intent of the Legislature in authorizing the same: “ ‘[a]ny rules or regulations drafted by an agency must faithfully reflect the intention of the Legislature, as expressed in the controlling legislation....’ ” Syl. pt. 7, in part, Simpson v. West Virginia Office of Ins. Comm'r, 223 W.Va. 495, 678 S.E.2d 1 (2009) (quoting Syl. pt. 4, Maikotter v. University of West Virginia Bd. of Trs./West Virginia Univ., 206 W.Va. 691, 527 S.E.2d...