Hale v. West Virginia Office of the Ins. Comm'r
| Decision Date | 22 March 2012 |
| Docket Number | No. 101028.,101028. |
| Citation | 724 S.E.2d 752,228 W.Va. 781 |
| Court | West Virginia Supreme Court |
| Parties | John P. HALE, Petitioner v. WEST VIRGINIA OFFICE OF the INSURANCE COMMISSIONER and Rockspring Development, Inc., Respondents. |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. W.Va.C.S.R. § 85–20–12.5(a) [2005] is an invalid administrative rule because it is in direct conflict with W.Va.C.S.R. § 85–20–9.10(g) [2005] and W.Va.Code § 23–4–1(a)[2008], and because it requires the claims administrator to make a psychiatric treatment decision without having the benefit of an expert psychiatric report, as required by W.Va.C.S.R. § 85–20–12.4 [2005].
2. W.Va.C.S.R. § 85–20–12.4 [2005] sets forth the following three-step process that must be followed when a claimant is seeking to add a psychiatric disorder as a compensable injury in his/her workers' compensation claim: (1) the claimant's treating physician refers the claimant to a psychiatrist for an initial consultation; (2) following the initial psychiatric consultation, the psychiatrist is to make a detailed report consistent with the procedure described in W.Va.C.S.R. § 85–20–12.4 [2005]; and (3) the claims administrator, aided by the psychiatrist's report, is to determine whether the psychiatric condition should be added as a compensable injury in the claim.
John C. Blair, Esq., Blair Law Offices, PLLC, Logan, WV, Attorney on behalf of Petitioner.
Marion E. Ray, Esq., Bowles, Rice, McDavid, Graff & Love, LLP, Charleston, WV, Attorney on behalf of Respondent Rockspring Development, Inc.
The claimant/petitioner, John P. Hale (“Mr. Hale”), appeals a final order of the Workers' Compensation Board of Review (“BOR”) dated August 9, 2010. In that order, the BOR affirmed a decision of the Workers' Compensation Office of Judges (“OOJ”) denying Mr. Hale's request to add major depressive disorder as a compensable injury of his workers' compensation claim.
In this appeal we address whether a claimant must get prior authorization from the claims administrator before seeking an initial psychiatric consultation. For the reasons set forth below, we reverse the BOR's August 9, 2010, order and remand this matter for entry of an order directing that Mr. Hale receive a consultation with a psychiatrist who is to examine him and produce a report consistent with the procedure set forth in W.Va.C.S.R. § 85–20–12.4 [2005].
Mr. Hale, a roofbolter, injured his back on November 22, 2003, while lifting a 30 to 40 pound wooden pallet. Dr. Bonifacio Aranas treated him for this back injury, and the claim was held compensable for lumbosacral strain/sprain on December 31, 2003. Dr. Paul Bachwitt conducted an independent medical evaluation of Mr. Hale on June 9, 2004, and concluded that he had reached his maximum degree of medical improvement. Mr. Hale ultimately received a five percent permanent partial disability award for his back injury.
Following Dr. Bachwitt's examination, Mr. Hale sought psychiatric treatment at Marshall University Psychiatric Associates. William Downs, M.S.W.,1 saw Mr. Hale during this consultation and concluded that he
presented with prominent symptoms of major depressive disorder precipitated probably by an accident last year that had him off work from November through April ... He acknowledges a significant amount of anxiety which has been lifelong. It has certainly been exacerbated by his current dilemma.(Emphasis added).
After this consultation, Mr. Hale went to Richard Gardner, PA–C 2, who assessed him with “Major Depressive Disorder, Recurrent, Moderate Panic Disorder without Agoraphobia.” Mr. Gardner's July 21, 2004, clinical record states that Mr. Hale has had problems with depression “for the last seven or eight years,” but also notes that his depression has intensified due to his back pain from his work-related injury.
Due to Mr. Hale's ongoing depression, his treating physician, Dr. Aranas, submitted a Diagnosis Update form to the claims administrator requesting that depression be added as a compensable injury of Mr. Hale's claim. Dr. Aranas' request included his opinion that Mr. Hale's depression was directly related to the compensable back injury:
John Hale suffers from depression which I feel is a direct result of his workers comp injury. He cannot maintain his normal lifestyle due to his medical condition.
(Emphasis added).
The claims administrator denied the request to add depression to Mr. Hale's claim for the following reasons: (1) the psychiatric symptoms did not arise within six months of the compensable injury 3; (2) the initial psychiatric consultation and treatment were not authorized by the employer; and (3) the evidence submitted indicated that Mr. Hale's depression was a pre-existing condition.
The OOJ affirmed the claims administrator's decision by order entered on February 1, 2010.4 The BOR affirmed the OOJ's decision on August 9, 2010. Mr. Hale subsequently appealed the BOR's decision to this Court.
Mr. Hale contends that the BOR erred in affirming the OOJ's order denying his request to add depression as a compensable injury of his workers' compensation claim. Our review of workers' compensation appeals is guided by the criteria set forth in W.Va.Code § 23–5–15 [2005]:
(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[.]
(c) If the decision of the board represents an affirmation of a prior ruling by both the commission and 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 provision, is clearly the result of erroneous conclusions of law, or is based upon the board's material misstatement or mischaracterization of particular components of the evidentiary record. 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 based upon the board's material misstatement or mischaracterization of particular components of the evidentiary record.
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.” Syllabus Point 1, Appalachian Power Co. v. State Tax Dep't of W.Va., 195 W.Va. 573, 466 S.E.2d 424 (1995). With these standards in mind, we turn to the issues raised in this appeal.
The main issue we address in this appeal is whether a claimant must get prior authorization from a claims administrator before seeking an initial psychiatric consultation. Before specifically addressing this issue, we note this Court has held that, “[i]n order for a claim to be held compensable under the Workmen's Compensation Act, three elements must coexist: (1) a personal injury (2) received in the course of employment and (3) resulting from that employment.” Syllabus Point 1, Barnett v. State Workmen's Comp. Comm'r, 153 W.Va. 796, 172 S.E.2d 698 (1970). “A claimant in a workmen's compensation case must bear the burden of proving his claim but in doing so it is not necessary to prove to the exclusion of all else the causal connection between the injury and employment.” Syllabus Point 2, Sowder v. State Workmen's Comp. Comm'r, 155 W.Va. 889, 189 S.E.2d 674 (1972). This Court has also stated that “a psychiatric disability arising out of a compensable physical injury may also be compensable.” Harper v. State Workmen's Comp. Comm'r, 160 W.Va. 364, 366, 234 S.E.2d 779, 781 (1977).
The claims administrator denied Mr. Hale's request to add depression to his claim, in part, because “Rule 20 indicates that the initial (psychiatric) evaluation and subsequent treatment must be authorized by the employer.” In making this determination, the claims administrator relied on W.Va.C.S.R. § 85–20–12.5, which provides, in relevant part:
12.5 Treatment guidelines. Treatment of mental conditions to injured workers is to be goal directed, time limited, intensive, and limited to conditions caused or aggravated by the industrial condition.
a. Initial evaluation and subsequent treatment must be authorized by Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable[.]
While this regulation states that a claimant must get prior authorization before seeking an initial psychiatric consultation, W.Va.C.S.R. § 85–20–9.10(g) expressly exempts a claimant from getting prior authorization for an initial psychiatric consultation:
9.10 The following services require prior review and authorization before services are rendered and reimbursement made:
g. Psychiatric treatment (does not include the initial psychiatric consultation)[.]
This issue requires us to interpret two conflicting regulations contained in Rule 20. To be valid, a regulation promulgated by an administrative agency must carry out the legislative intent of its governing statutes. In Syllabus Point 3 of Rowe v. W.Va. Dep't of Corr., 170 W.Va. 230, 292 S.E.2d 650 (1982), this Court held:
It is fundamental law that the Legislature may delegate to an administrative agency the power to make rules and regulations to implement the statute under which the agency functions. In exercising that power, however, an administrative agency may not issue a regulation which is inconsistent with,...
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