Johnson v. West Va. Office of The Ins. Comm'r, No. 35382.

• Court: Supreme Court of West Virginia
• Writing for the Court: PER CURIAM:
• Citation: 226 W.Va. 650,704 S.E.2d 650
• Parties: Charles L. JOHNSON, dependent son of Louis E. Johnson, deceased, Appellantv.WEST VIRGINIA OFFICE OF the INSURANCE COMMISSIONER, and Foote Mineral Company, Appellees.
• Decision Date: 18 November 2010
• Docket Number: No. 35382.

226 W.Va. 650
704 S.E.2d 650

Charles L. JOHNSON, dependent son of Louis E. Johnson, deceased, Appellant
v.
WEST VIRGINIA OFFICE OF the INSURANCE COMMISSIONER, and Foote Mineral Company, Appellees.

No. 35382.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 12, 2010.Decided Nov. 18, 2010.

[704 S.E.2d 651 , 226 W.Va. 651]

Syllabus by the Court

1. “An order of the workers' compensation appeal board, approving an order of the state compensation commissioner, will be reversed by this Court on appeal, where the legal conclusions of the appeal board are erroneous.” Syl. pt. 4, Emmel v. State Compensation Director, 150 W.Va. 277, 145 S.E.2d 29 (1965).

2. “A claim for death benefits, provided for by Code, 23–4–10, is separate and distinct from an injured employee's claim for disability benefits.” Syl. pt. 1, Gibson v. State Compensation Commissioner, 127 W.Va. 97, 31 S.E.2d 555 (1944).

3. “The question of dependency under the Workmen's Compensation Law of West Virginia is not to be determined by ordinary legal or ethical conceptions, but by the classification of dependents made by that law itself.” Syl. pt. 1, Harding v. State Compensation Commissioner, 114 W.Va. 817, 174 S.E. 328 (1934).

Edwin H. Pancake, Esq., Maroney, Williams, Weaver & Pancake, Charleston, WV, for Appellant.Karin L. Weingart, Esq., Spilman, Thomas & Battle, Charleston, WV, for Foote Mineral Company.David L. Stuart, Esq., Workers' Compensation Litigation Division, Charleston, WV, for the Office of the Insurance Commissioner as Administrator of the Old Fund.

PER CURIAM:

This workers' compensation claim is before this Court upon the appeal of Charles L. Johnson from the September 17, 2008, order of the West Virginia Workers' Compensation Board of Review, which affirmed the administrative termination of his dependents' death benefits.

Upon review, this Court is of the opinion that Charles L. Johnson has a statutory right under the West Virginia Workers' Compensation Act to the continuation of his dependents' death benefits and that the termination of benefits constituted error. Accordingly, the order of the Workers' Compensation Board of Review dated September 17, 2008, in claim no. 840069749, Workers' Compensation Board of Review no. 2040452, is reversed, and this claim is remanded to the Board of Review for the entry of an order reinstating Charles L. Johnson's dependents' death benefits retroactive to the date the benefits were terminated.¹

I. Factual and Procedural Background

Louis E. Johnson, Charles' father, worked for Foote Mineral Company as a furnace operator for 31 years. There is voluminous evidence in the record demonstrating that Charles was the dependent invalid child of Louis E. Johnson. Charles suffers from schizophrenia, a chronic disabling disease. ²

[226 W.Va. 652 , 704 S.E.2d 652]

In 1989, Louis E. Johnson died of lung cancer. In 1990, Anna R. Johnson, the wife of Louis filed an application for workers' compensation “fatal dependents' death benefits.” She contended that her husband's death was materially contributed to by occupational pneumoconiosis, and, therefore, she was entitled to death benefits.

Whether by mistake or for reasons unexplained in the record, the word “none” was written on the 1990 application in reference to the identity of any surviving dependent children. As W.Va.Code, 23–4–10 [1978], provides in part:

[I]f death results from occupational pneumoconiosis or from any other occupational disease, the benefits shall be in the amounts and to the persons as follows: * * * [ (b)(1)] A dependent widow or widower until death or remarriage of such widow or widower, and any child or children dependent upon the decedent * * * or if an invalid child to continue as long as such child remains an invalid. All such persons shall be jointly entitled to the amount of benefits payable as a result of [the] employee's death.

In subsection (d) of that statute, the word “dependent” is defined to include an invalid child “who, at the time of the injury causing death, is dependent in whole or part for his or her support upon the earnings of the employee [.]” ³

Although an order was entered by the Workers' Compensation Commissioner on October 30, 1990, holding the claim compensable on a non-medical basis, the application for dependents' death benefits was subsequently rejected on the ground that Louis E. Johnson's death was not connected to his work-related occupational pneumoconiosis. On June 18, 2002, however, the Board of Review reversed and granted benefits on the basis that occupational pneumoconiosis materially contributed to Louis' death.⁴ The employer's appeal from the Board of Review was refused by this Court on February 11, 2003.

Anna R. Johnson died on April 14, 2000, prior to the granting of dependents' death benefits by the Board of Review. In her Will, Anna named her daughter, Lois J. Dudding, Executrix and directed her to hold various assets of the Estate for the use and benefit of Charles and to provide him with the necessities of life. Subsequently, by letter dated July 22, 2002, counsel informed the Workers' Compensation Commissioner that Anna R. Johnson died and that Charles L. Johnson: (1) was a dependent invalid son of Louis E. Johnson, (2) a substitute party under the 1990 application for dependents' death benefits and (3) entitled to payment of benefits, in care of Lois J. Dudding. Attachments to the letter included: (1) a copy of Anna's death certificate and Will, (2) a copy of Charles' birth certificate and (3) a copy of the medical reports of Dr. Salim stating that Charles suffers from a lifelong psychiatric disorder and requires supervision. See, n. 2, supra. A copy of the letter was sent notifying the employer.

On October 30, 2002, a Workers' Compensation pay order was issued directing the employer to pay Lois J. Dudding $277,060.06, representing the period December 14, 1989, (immediately after the death of Louis E.

[226 W.Va. 653 , 704 S.E.2d 653]

Johnson) through November 30, 2002.⁵ Thereafter, pay orders were issued on a monthly basis for the benefit of Charles. On July 22, 2003, Lois J. Dudding completed a Workers' Compensation form concerning the continuation of benefits on which she named Charles as a dependent of Louis E. Johnson. Later, on September 2, 2003, Dr. Spetie completed a Workers' Compensation medical verification form and stated that Charles is diagnosed with schizophrenia and is in need of supervision. See, n. 2, supra. Charles continued to receive his monthly benefits.

The employer, Foote Mineral Company, began self-administering its workers' compensation claims in July 2004. W.Va.Code, 23–2–9(b)(1) [2003] (Self-insured employers shall, effective July 1, 2004, administer their own claims.).⁶ Foote Mineral Company hired Acordia Employers Service as its third-party administrator to process the workers' compensation claims filed by Foote Mineral's employees.

On February 17, 2006, the employer's third-party administrator, Acordia Employers Service, issued a notification of termination of Charles' dependents' death benefits. The notification, sent to Charles in care of Lois J. Dudding, stated that, since there was no evidence that Charles was a dependent at the time of Louis E. Johnson's death and that the application filed by Anna R. Johnson in 1990 indicated that there were no dependent children, a termination of Charles' benefits would be pursued. Thereafter, on March 14, 2006, the employer's third-party administrator entered an order terminating Charles' dependents' death benefits.

A...