Lovas v. Consolidation Coal Co., No. 33670.

CourtSupreme Court of West Virginia
Writing for the CourtAlbright
Citation662 S.E.2d 645
PartiesJohn J. LOVAS, Claimant Below, Appellant, v. CONSOLIDATION COAL COMPANY, Self-Insured Employer Below, Appellee.
Docket NumberNo. 33670.
Decision Date23 May 2008
662 S.E.2d 645
John J. LOVAS, Claimant Below, Appellant,
v.
CONSOLIDATION COAL COMPANY, Self-Insured Employer Below, Appellee.
No. 33670.
Supreme Court of Appeals of West Virginia.
Submitted April 2, 2008.
Decided May 23, 2008.

[662 S.E.2d 646]

Syllabus by the Court

1. "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." Syl.Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

2. "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 Dept., 195 W.Va. 573, 466 S.E.2d 424 (1995).

3. "`"Rules and Regulations of ... [an agency] must faithfully reflect the intention of the legislature; when there is clear and unambiguous language in a statute, that language must be given the same clear and unambiguous force and effect in the ... [agency's] Rules and Regulations that it has in the statute." Syl. pt. 4, Ranger Fuel Corp. v. West Virginia Human Rights Commission, 180 W.Va. 260, 376 S.E.2d 154 (1988).' Syl. pt. 2, in part, Chico Dairy Company v. Human Rights Commission, 181 W.Va. 238, 382 S.E.2d 75 (1989)." Syl. Pt. 5, Appalachian Power Co. v. State Tax Dept., 195 W.Va. 573, 466 S.E.2d 424 (1995).

4. "Any rules or regulations drafted by an agency must faithfully reflect the intention of the Legislature, as expressed in the controlling legislation. Where a statute contains clear and unambiguous language, an agency's rules or regulations must give that language the same clear and unambiguous force and effect that the language commands in the statute." Syl. Pt. 4, Maikotter v. University of W. Va. Bd. of Trustees, 206 W.Va. 691, 527 S.E.2d 802 (1999).

5. "It is fundamental law that the Legislature may delegate to an administrative agency the power to make rules and regulations

[662 S.E.2d 647]

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, or which alters or limits its statutory authority." Syl. Pt. 3, Rowe v. W. Va. Dept. of Corrections, 170 W.Va. 230, 292 S.E.2d 650 (1982).

6. "The judiciary is the final authority on issues of statutory construction, and we are obliged to reject administrative constructions that are contrary to the clear language of a statute." Syl. Pt. 5, CNG Transmission Corp. v. Craig, 211 W.Va. 170, 564 S.E.2d 167 (2002).

7. West Virginia 85 CSR § 1-13.1 (2007) is void because it does not reflect the intention of the legislature as expressed in West Virginia Code § 23-4-16(a)(4) (2005) (Repl.Vol.2005), especially as the rule has been administered since promulgation. The administrative closure accomplished through the regulation inaccurately connotes that the claim has been closed notwithstanding the contrary language of West Virginia Code § 23-4-16(a)(4).

M. Jane Glauser, Schrader, Byrd & Companion, PLLC, Wheeling, WV, for Claimant-Appellant.

Edward M. George, Phillips, Gardill, Kaiser & Altmeyer, PLLC, Wheeling, WV, for the Employer-Appellee.

Rebecca A. Roush, Richard M. Crynock, Charleston, WV, for Amicus Curiae, West Virginia Offices of the Insurance Commissioner.

ALBRIGHT, Justice.


This is an appeal by John Lovas (hereinafter "Appellant") from a final order of the Workers' Compensation Board of Review (hereinafter "BOR"), certified on April 11, 2007, which affirmed an administrative closure of the Appellant's claim. The Appellant contends that the BOR and the Administrative Law Judge erred by approving the administrative closure. Subsequent to this Court's review of the record, briefs, arguments of counsel, and applicable precedent, this Court reverses the order of the BOR and remands this matter with instructions.

I. Factual and Procedural History

The Appellant sustained a back injury on August 13, 1999, while employed as a mechanic by a self-insured employer. The claim was ruled compensable by order dated September 30, 1999. On November 22, 2002, the Appellant was granted a nineteen percent permanent partial disability award. The record reflects that the final medical treatment in this claim was paid on January 21, 2002.

By order dated February 22, 2006, the Claims Administrator closed the Appellant's claim on an administrative basis, pursuant to a regulation, West Virginia 85 CSR § 1-13.1 (2007).1 This administrative closure was premised upon the fact that in excess of six months had elapsed since the Appellant's last authorized medical treatment. West Virginia 85 CSR § 1-13.1 provides as follows:

Medical benefits in all no lost time claims and claims for temporary total disability benefits shall cease and the claim administratively closed six (6) months after the last date of service in the claim. A protestable order shall be issued by the Insurance Commissioner or private carrier upon said administrative closure. Nothing in this provision shall be deemed to abridge an injured worker's right to attempt to reopen the claim at a later date under applicable law.

Upon the Appellant's protest of that closure order, the Administrative Law Judge affirmed the Claims Administrator for the self-insured employer, despite the Appellant's argument that the regulation under which his claim was administratively closed directly conflicted with West Virginia Code § 23-4-16(a)(4) (2005) (Repl.Vol.2005) regarding closure of inactive claims. West Virginia Code § 23-4-16(a)(4) provides as follows:

662 S.E.2d 648

With the exception of the items set forth in subsection (d), section three [§ 23-4-3] of this article, in any claim in which medical or any type of rehabilitation service has not been rendered or durable medical goods or other supplies have not been received for a period of five years, no request for additional medical or any type of rehabilitation benefits shall be granted nor shall any medical or any type of rehabilitation benefits or any type of goods or supplies be paid for by the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, if they were provided without a prior request. For the exclusive purposes of this subdivision, medical services and rehabilitation services shall not include any encounter in which significant treatment was not performed.

In affirming the administrative closure in this case, the Administrative Law Judge reasoned as follows:

After due deliberation, the adjudicator finds as follows. First 85 CSR 1 § 14.1 is not contrary to the provisions of W.Va. Code § 23-4-16(a)(4). The regulation deals only with administrative closure of the claim. W.Va.Code § 23-4-16 and its various subsections bar a claim from being reopened after the applicable time provisions have expired.

Further, the Administrative Law Judge found that "there is no adverse effect foreseen to the claimant since the claimant may still reopen his claim for additional treatment and the number of reopening requests for additional treatment is not limited by statute." The Administrative Law Judge continued:

The only potential adverse effect upon the claimant is that the claimant would have to submit a reopening request to the administrator before additional treatment may be approved. However, additional treatment could not be approved, even under the system in place before the Rule was adopted, without the filing of a request for approval and some showing that the claimant required that he or she did not require before. The pre-Rule system required a de facto "reopening" of the claim in order to obtain additional treatment. Therefore, the reopening request requirement imposed by the Rule is, in actuality, no more restrictive of the claimant that the pre-Rule system.

By order certified April 11, 2006, the Board of Review affirmed the Administrative Law Judge's decision. This Court accepted the Appellant's appeal on October 24, 2007. The Appellant maintains that a significant conflict exists between the regulation and the...

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4 practice notes
  • Williby v. West Virginia Office Ins. Com'R, No. 34455.
    • United States
    • Supreme Court of West Virginia
    • 2 Noviembre 2009
    ...and conclusions, there is insufficient support to sustain the decision. In Lovas v. Consolidation Coal Company, 222 W.Va. 91, 95, 662 S.E.2d 645, 649 (2008), this Court In Barnett v. State Workmen's Compensation Commissioner, 153 W.Va. 796, 172 S.E.2d 698 (1970), this Court explained that &......
  • Johnson v. West Va. Office of The Ins. Comm'r, No. 35382.
    • United States
    • Supreme Court of West Virginia
    • 18 Noviembre 2010
    ...Court on appeal, where the legal conclusions of the appeal board are erroneous.” Lovas v. Consolidation Coal Company, 222 W.Va. 91, 95, 662 S.E.2d 645, 649 (2008) (Conclusions of law of the Workers' Compensation Board of Review “are subjected to de novo inspection.”); Dodson v. Workers' Com......
  • Reed v. Exel Logistics, Inc., No. 17-0864
    • United States
    • Supreme Court of West Virginia
    • 6 Junio 2018
    ...§ 23-4-15 we review the Board’s resolution of the question de novo . See , e.g. , Lovas v. Consolidation Coal Company , 222 W.Va. 91, 95, 662 S.E.2d 645, 649 (2008) (Conclusions of law of the Workers’ Compensation Board of Review "are subjected to de novo inspection."); Dodson v. ......
  • Wade v. Ohio Valley Med. Ctr., Inc., No. 13-0212
    • United States
    • Supreme Court of West Virginia
    • 27 Junio 2014
    ...that the claims administrator intended to close the claim for further treatment. In Lovas v. Consolidation Coal Company, 222 W.Va. 91, 662 S.E.2d 645 (2008) this Court stated that a claim remains open for medical benefits on an unlimited basis until it satisfies the statutory requirement fo......
4 cases
  • Williby v. West Virginia Office Ins. Com'R, No. 34455.
    • United States
    • Supreme Court of West Virginia
    • 2 Noviembre 2009
    ...and conclusions, there is insufficient support to sustain the decision. In Lovas v. Consolidation Coal Company, 222 W.Va. 91, 95, 662 S.E.2d 645, 649 (2008), this Court In Barnett v. State Workmen's Compensation Commissioner, 153 W.Va. 796, 172 S.E.2d 698 (1970), this Court explained that &......
  • Johnson v. West Va. Office of The Ins. Comm'r, No. 35382.
    • United States
    • Supreme Court of West Virginia
    • 18 Noviembre 2010
    ...Court on appeal, where the legal conclusions of the appeal board are erroneous.” Lovas v. Consolidation Coal Company, 222 W.Va. 91, 95, 662 S.E.2d 645, 649 (2008) (Conclusions of law of the Workers' Compensation Board of Review “are subjected to de novo inspection.”); Dodson v. Workers' Com......
  • Reed v. Exel Logistics, Inc., No. 17-0864
    • United States
    • Supreme Court of West Virginia
    • 6 Junio 2018
    ...§ 23-4-15 we review the Board’s resolution of the question de novo . See , e.g. , Lovas v. Consolidation Coal Company , 222 W.Va. 91, 95, 662 S.E.2d 645, 649 (2008) (Conclusions of law of the Workers’ Compensation Board of Review "are subjected to de novo inspection."); Dodson v. ......
  • Wade v. Ohio Valley Med. Ctr., Inc., No. 13-0212
    • United States
    • Supreme Court of West Virginia
    • 27 Junio 2014
    ...that the claims administrator intended to close the claim for further treatment. In Lovas v. Consolidation Coal Company, 222 W.Va. 91, 662 S.E.2d 645 (2008) this Court stated that a claim remains open for medical benefits on an unlimited basis until it satisfies the statutory requirement fo......

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