Holdren v. Workers' Compensation Com'r

• Citation: 382 S.E.2d 531,181 W.Va. 337
• Decision Date: 08 June 1989
• Docket Number: No. 18615,18615
• Parties: Kermit HOLDREN v. WORKERS' COMPENSATION COMMISSIONER and Cannelton Industries, Inc.
• Court: Supreme Court of West Virginia

Page 531

382 S.E.2d 531

181 W.Va. 337

Kermit HOLDREN v. WORKERS' COMPENSATION COMMISSIONER and Cannelton Industries, Inc.

No. 18615.

Supreme Court of Appeals of West Virginia.

June 8, 1989.

Dissenting Opinion Aug. 2, 1989.

Syllabus by the Court

There are two possible dates which trigger the running of W.Va. Code § 23-4-15 (1988), of which the last occurring will be used. One of these dates is the date of last exposure. The second possible date is the earlier of either the date the claimant was advised of the occupational disease by a physician or the date the claimant should reasonably have known of the existence of the occupational disease.

Thomas G. Truman, Meadows, Crews & Truman, Chesapeake, for Holdren.

Jeff C. Woods, Jackson & Kelly, Charleston, for Cannelton ind.

BROTHERTON, Chief Justice:

This proceeding involves an appeal by the claimant, Kermit Holdren, from the April 15, 1988, order of the Workers' Compensation Appeal Board, which affirmed the August 12, 1987, final order of the Workers' Compensation Commissioner rejecting the claimant's application for occupational noise-induced hearing loss benefits as untimely filed.

The claimant last worked for Cannelton Industries on July 29, 1982. He did not file his claim for hearing loss benefits until September 6, 1985, when an audiogram and report was completed by Dr. Carl Rosenberg. On December 3, 1985, the Commissioner rejected the claimant's application for benefits, stating that the application had not been filed within three years from and after the date he was last exposed to industrial noise or three years from and after the date he should reasonably have known that his hearing loss was due to industrial noise exposure. The Commissioner also noted that no affidavit had been filed showing good cause for the late filing pursuant to Bailey v. State Workers' Compensation Commissioner, 170 W.Va. 771, 296 S.E.2d 901 (1982).

The claimant protested that ruling and filed an affidavit, stating that he was unaware of both the three-year statute of limitations and that he could file an application for hearing loss benefits. He also stated in the affidavit that he was unaware of the fact that he suffered from a hearing loss consistent with prolonged exposure to industrial noise until he was informed by Dr. Rosenberg at the New River Breathing Center.

The claimant testified at a discovery hearing held on March 5, 1986. Contrary to his affidavit, the claimant testified that:

Q. Mr. Holdren, as I understand it, you first noticed problems with your hearing about ten years ago, back while you were still working?

A. Yeah.

Q. Did you, were you exposed to any noise while you were working at Cannelton?

A. Oh, yes.

Q. Did you suspect that the problem with your hearing was due to the noise of the machinery at work?

A. Yes. I figured it contributed to it a lot.

The claim was then submitted for a decision. On August 12, 1987, the Commissioner affirmed the rejection order. The claimant appealed.

By order dated April 15, 1988, the Workers' Compensation Appeal Board affirmed the Commissioner's final rejection order. Specifically, the Appeal Board found that it was apparent from the claimant's testimony that the claimant believed, as early as 1976 and as late as 1981, that his employment in the colliery industry and exposure to noise in his employment had contributed to his hearing loss. The Appeal Board then noted that:

The claimant seems to urge on appeal, despite the date on which he knew or should have known that he had an occupationally related hearing loss, that he has filed a timely application for benefits because he filed within three years from and after the date he was advised by a physician that he had a compensable hearing loss. Under the claimant's interpretation, a claimant could not file an untimely application for benefits. ... Given the fact that the claimant's application was not filed until September of 1985, the application simply was not timely filed within the meaning of W.Va. Code § 23-4-15.

This proceeding is the claimant's appeal from the Appeal Board's ruling.

On appeal, the parties ask this Court to determine what constitutes timely filing of an application for an occupational disease under W.Va.Code § 23-4-15 (1988). ¹ For the reasons stated below, we hold that the claimant failed to file a timely application for benefits, but find that the late filing was excused under our decision in Bailey v. State Workmen's Compensation Commissioner, 170 W.Va. 771, 296 S.E.2d 901 (1982).

It is generally accepted that the purpose of time limitations in filing workers' compensation claims is to provide notice and to enable the employer to protect himself by prompt investigation and treatment of the injury. ² In the treatise, Workmen's Compensation Law, Professor Arthur Larson remarks that the purpose of the notice and claim period was "the same as that of any limitations statute: to protect the employer against claims too old to be successfully investigated and defended." ³ Id. at § 78.10. In fact, Larson reports that a statute of limitations proceeds on the general theory that a claimant forfeits his rights "when he inexcusably delays assertion of them...." Id. at § 78.42(b). ⁴

In order to file a timely claim for occupational disease benefits, W.Va.Code § 23-4-15 sets out three possible dates by which a claimant must file his application for benefits. ⁵ In part, W.Va.Code § 23-4-15 (1988) provides:

[t]o entitle any employee to compensation for occupational disease other than occupational pneumoconiosis under the provisions hereof, the application therefor must be made ... and filed in the office of the commissioner within three years from and after the day on which the employee was last exposed to the particular occupational hazard involved or within three years from and after the employee's occupational disease was made known to him by a physician or which he should reasonably have known, whichever shall last occur....

The appellant contends that W.Va.Code § 23-4-15 is clear and unambiguous, and thus our analysis is not subject to statutory construction through an inquiry into legislative intent. Syl. pt. 1, Tanner v. Workers' Compensation Commissioner, --- W.Va. ----, 345 S.E.2d 29 (1986). To the contrary, a cursory review of the statute makes it obvious that W.Va.Code § 23-4-15 is anything but unambiguous. As illustration, we point to the disparate interpretations afforded the statute by the parties to this action. Consequently, we turn to the principles of statutory construction for aid in interpreting W.Va.Code § 23-4-15.

In syllabus point 1 of Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975), this Court held that "[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." After noting that W.Va.Code § 23-4-3(a) (1931) was not clear on its face, this Court quoted Spencer v. Yerace, 155 W.Va. 54, 180 S.E.2d 868, 872 (1971), as stating that:

In the construction of statutes, it is the legislative intent manifested in the statute that is important and such intent must be determined primarily from the language of the statute.... In ascertaining the legislative intent, effect must be given to each part of the statute and to the statute as a whole so as to accomplish the general purpose of the legislation.

159 W.Va. at 115,219 S.E.2d at 365. Sincewe find that W.Va.Code § 23-4-15 is, on its face, ambiguous, we must examine the language of the statute to determine the legislative intent.

From an examination of the entire statute, we can only conclude that the legislative intent was to limit the time period in which a claimant can file a claim for benefits. ⁶ Our interpretation is reinforced by a careful review of W.Va.Code § 23-4-15, which provides, in pertinent part, that a claim will be filed:

[w]ithin three years from and after the day on which the employee was last exposed to the particular occupational hazard involved or within three years from and after the employee's occupational disease is made known to him by a physician or which he should reasonably have known, whichever shall last occur.... (emphasis added.)

It is crucial to note that of the three relevant phrases, only two are prefaced by the words "within three years." By contrast, the third and final phrase is not modified by any language providing a time frame, but rather is set out independent of the first two phrases. This simple but important distinction in the language of the statute leads us to believe that the legislature intended that the second and third phrases be considered as two parts of a single element, thus creating only two possible dates in the ultimate formula for triggering the statute--the date of last exposure and either the date of the physician's diagnosis or the date the claimant should reasonably have known of the occupational disease. ⁷

We disagree with the appellant's contention that W.Va.Code § 23-4-15 should be interpreted as containing three separate dates after which the three-year filing period would begin to run. ⁸ Under the appellant's approach, a claimant could delay filing a claim years past the date of last exposure or the date he knew of the existence of an occupational disease simply by delaying his visit to a physician until he was ready to file a claim. Such an interpretation would erode the purpose of the filing statute until the elements of notice and fair play inherent in the timeliness issue are nonexistent. We cannot believe the legislature intended such a result.

Nor does the language of W.Va.Code § 23-4-15 suggest, as the claimant urges, that the latest occurring date between the second and third phrases must necessarily apply. Such a conclusion would create the same result as if the three phrases discussed above were three equal possibilities. Surely if the legislature had intended the third phrase to be independently...