Justice v. W. Va. Office Ins. Comm'n

Decision Date14 November 2012
Docket NumberNo. 11–0113.,11–0113.
Citation736 S.E.2d 80,230 W.Va. 80
CourtWest Virginia Supreme Court
PartiesRoy JUSTICE, Petitioner v. WEST VIRGINIA OFFICE INSURANCE COMMISSION and Lowe's Home Centers, Inc., Respondent.

OPINION TEXT STARTS HERE

Syllabus by the Court

1. “Where a particular construction of a statute would result in an absurdity, some other reasonable construction, which will not produce such absurdity will be made.” Syl. Pt. 2, Newhart v. Pennybacker, 120 W.Va. 774, 200 S.E. 350 (1938).

2. Notwithstanding statutory language that suggests otherwise, an order issued by the West Virginia Workers' Compensation Board of Review which modifies or vacates a previous award of permanent total disability is not subject to challenge based on the involvement of a self-insured former employer in the reevaluation process given that the participation of the self-insured former employer is clearly anticipated and authorized by the provisions of West Virginia Code § 23–4–16(d) (2010).

Otis R. Mann, Jr., Law Office of Otis R. Mann, Jr., Charleston, WV, for Petitioner.

H. Toney Stroud, Steptoe and Johnson, PLLC, Charleston, WV, for Respondent, Lowe's Home Centers, Inc.

McHUGH, Justice:

Petitioner Roy Justice appeals from the December 22, 2010, order of the West Virginia Workers' Compensation Board of Review (Board of Review) through which Petitioner's permanent total disability (“PTD”) award previously granted on December 7, 1994, was suspended and vacated. Mr. Justice challenges the Board of Review's determination, upon a reopening of his PTD claim, that he is capable of gainful employment. Mr. Justice argues that his former employer, Respondent Lowe's Home Centers, Inc., (“Lowe's”), violated the statute which authorizes the claim reopening. Citing language in West Virginia Code § 23–4–16(d)(2) (2010), which directs that a claimant's former employer “shall not be a party to the reevaluation,” Petitioner argues that Lowe's involvement in the reevaluation process renders the order vacating his PTD award invalid and requires the reinstatement of the prior PTD award. After having carefully considered the statutory language at issue in conjunction with the statutory scheme, we conclude that the Board of Review did not commit error in vacating Petitioner's PTD award.

I. Factual and Procedural Background

During the process of loading a riding lawnmower with the assistance of three or four co-workers, Mr. Justice was injured while working at Lowe's on February 22, 1990. While initially diagnosed with lumbar strain, an MRI revealed herniated discs associated with degenerative changes. As a result of his compensable injury, Petitioner was granted a 5% permanent partial disability (“PPD”) award. Maintaining that he was unable to return to work, Mr. Justice filed a claim seeking a PTD award. By order enteredon December 7, 1994, Petitioner was granted a PTD award with an onset date of February 22, 1990. While the issue of Petitioner's entitlement to PTD was litigated, 1 the award was upheld under the now discarded liberality rule. 2

In February 2006, the PTD claim was reopened by Lowe's for the purpose of considering whether Petitioner continued to be eligible for PTD benefits. 3SeeW.Va.Code § 23–4–16(d); 85 C.S.R. § 5–5. Lowe's, through its claims administrator, Specialty Risk Services, referred Petitioner to various examiners who reached a conclusion that Mr. Justice could perform a sedentary level of work. By letter dated August 16, 2007, Mr. Justice was advised that he had 120 days in which to submit evidence to support the continuation of his PTD benefits.

Petitioner submitted the report of Gloria Alderson, a PTD rehabilitation specialist, dated November 20, 2007. According to her report, Mr. Justice remained totally and permanently disabled. Mr. Justice submitted a second vocational report, dated August 21, 2009, that was prepared by Elizabeth Davis. In addition to noting that Petitioner was limited to performing sedentary physical tasks,4 Ms. Davis observed that one of “several barriers to competitive employment” was Mr. Justice's “view of himself as totally disabled.”

By order dated December 16, 2007, Petitioner's PTD award was vacated and his benefits were immediately suspended by the claims administrator. In explanation of the decision, the order indicated that the report Petitioner submitted from Ms. Alderson was deemed unreliable based on her failure to consider the results of the functional capacity evaluation. That evaluation, performed by physical therapist Brenda Marcum on November 14, 2006, demonstrated full upper extremity range of motion and strength and the capability of lifting 13–23 pounds as well as the ability to perform both sedentary work and some light physical demand level of work.5 Additional evidence for the decision was Dr. Paul Bachwitt's examination on January 13, 2006, which led him to conclude that the initial injury should have taken four months at most to heal. A second orthopedic evaluation performed by Dr. Prasadarao Mukkamala resulted in the opinion that Petitioner had reached maximum medical improvement and that home exercise was the only further treatment required. Dr. Mukkamala recommended a whole person impairment of 5% and found there was no further indication of either Lortab or intramuscular injections.

A psychiatric examination performed by Dr. Charles Weise on June 21, 2006, indicated a 5% Dysthmic Disorder resulting in a 5% impairment.6 Two separate vocational rehabilitation assessments were performed, the first of which on March 2, 2006, by Sean Snyder. It was Mr. Snyder's conclusion that Mr. Justice was employable and that he would benefit from vocational rehabilitation services.7 On May 1, 2007, Lori Hudak performeda vocational rehabilitation assessment and found that Petitioner has the skills necessary to transition into the workforce but she acknowledged that his lack of desire to return to work might pose an impediment. An occupational medicine specialist, Dr. Marsha Bailey, concluded after her examination of Mr. Justice on July 31, 2008, that there were no real signs of true radiculopathy. Stating that his perception of his disability far outweighed his actual impairment, Dr. Bailey concluded that Mr. Justice could return to work at the sedentary work level.

Petitioner protested the decision of the claims administrator and a hearing was held on March 25, 2010, before the Office of Judges. In its corrected decision of May 3, 2010, the Office of Judges upheld the ruling of the claims administrator. By order dated December 22, 2010, the Board of Review affirmed the ruling of the Office of Judges. Petitioner seeks relief from that ruling through this appeal.

II. Standard of Review

As we previously recognized in Dodson v. Workers' Compensation Division, 210 W.Va. 636, 558 S.E.2d 635 (2001), we apply a de novo standard of review to questions of law arising in the context of decisions issued by the Workers' Compensation Appeal Board. Id. at 641, 558 S.E.2d at 640. With the cessation of the Workers' Compensation Commission (“Commission”), the appeals to this judicial body are now taken from the Board of Review. SeeW.Va.Code § 23–5–15 (2010). As we recognized in Fenton Art Glass Co. v. West Virginia Office of Insurance Commissioner, 222 W.Va. 420, 664 S.E.2d 761 (2008), this Court may only reverse or modify the Board of Review, where the Board's decision is an affirmation of prior rulings reached by both the Office of Judges and the original factfinder, “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.” Id. at 427, 664 S.E.2d at 768 (quoting W.Va.Code § 23–5–15(c)). With these standards in mind, we proceed to determine whether the Board of Review committed error in affirming the decision of the Office of Judges.

III. Discussion

The parties concur that West Virginia Code § 23–4–16 establishes continuing authority over PTD awards. As the Legislature made clear, whether it is the Commission, the successor to the Commission, a private carrier, or a self-insured employer—the applicable entity “has continuing power and jurisdiction over claims in which permanent total disability awards have been made after the eighth day of April, one thousand nine hundred ninety-three.” W.Va.Code 23–4–16(d). Because Petitioner's PTD award was made on December 7, 1993, there is no question as to the applicability of this statutory provision. See id.

Pursuant to this continuing authority, any of the four statutorily-identified entities “shall continuously monitor permanent total disability awards and may, from time to time, after due notice to the claimant, reopen a claim for reevaluation of the continuing nature of the disability and possible modification of the award.” W.Va.Code § 23–4–16(d)(1). In compliance with this authority, Respondent Lowe's reopened Mr. Justice's PTD claim. And as a result of that reopening and the reevaluation that occurred, Petitioner was determined to no longer be permanently and totally disabled.

Seeking to set aside the decision which vacated his PTD award, Petitioner looks to the statutory...

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