Lyons v. Richardson

• Citation: 429 S.E.2d 44,189 W.Va. 157
• Decision Date: 16 March 1993
• Docket Number: No. 21454,21454
• Court: Supreme Court of West Virginia
• Parties: Danny LYONS, Terry Gibson, Arla Sue Betts, Thena Maynard, Laurence Mayes, Ronald L. Stewart, Bruce Perry, and Bill Fitzpatrick, Petitioners, v. Andrew N. RICHARDSON, Workers' Compensation Commissioner, and Robert J. Smith, Chief Administrative Law Judge, Respondents.

Page 44

429 S.E.2d 44

189 W.Va. 157

Danny LYONS, Terry Gibson, Arla Sue Betts, Thena Maynard Laurence Mayes, Ronald L. Stewart, Bruce Perry and Bill Fitzpatrick, Petitioners, v. Andrew N. RICHARDSON, Workers' Compensation Commissioner and Robert J. Smith, Chief Administrative Law Judge, Respondents.

No. 21454.

Supreme Court of Appeals of

West Virginia.

Submitted Feb. 2, 1993.

Decided March 16, 1993.

Syllabus by the Court

1. The Workers' Compensation Commissioner's role under the system contained in W.Va.Code, 23-5-1 (1990), is essentially one of fact gathering from the preliminary forms filed, the medical reports submitted by the parties, and independent physical examinations ordered by the Commissioner under W.Va.Code, 23-4-8 (1990). The Commissioner makes rulings with regard to the benefits sought by a claimant or to the employer's challenges to benefits. If a party objects to these rulings, the matter is referred to the Office of Judges for an evidentiary hearing and an ultimate ruling by an administrative law judge.

2. One of the primary purposes of W.Va.Code, 23-5-1j, is to enable the Workers' Compensation Commissioner, through counsel, to protect against second injury life awards or permanent total disability awards where the employer has not appeared or is willing to concede a second injury life award because the employer's share of liability for the award is very minor.

3. W.Va.Code, 23-5-1j(a), enables the Office of Judges to remand a claim for a second injury life award or a permanent total disability award to the Workers' Compensation Commissioner if such a claim is first asserted before the Office of Judges or if an administrative law judge, in reviewing the claim, finds the record incomplete on the issue of whether such an award should be given.

4. W.Va.Code, 23-5-1j, is not designed to require that every claim for a second injury life award or a permanent total disability award that comes from the Workers' Compensation Commissioner on an objection must automatically be remanded back to the Commissioner.

5. W.Va.Code, 23-5-1h, provides that an administrative law judge shall, within thirty days after final hearing, render a decision affirming, reversing or modifying the Workers' Compensation Commissioner's action, and that said decision shall contain findings of fact and conclusions of law and shall be mailed to all interested parties. This is a mandatory duty.

6. " ' "Mandamus is a proper remedy to compel tribunals and officers exercising discretionary and judicial powers to act, when they refuse so to do, in violation of their duty, but it is never employed to prescribe in what manner they shall act, or to correct errors they have made." Syl. pt. 1, State ex rel. Buxton v. O'Brien, 97 W.Va. 343, 125 S.E. 154 (1924).' Syl. pt. 2, State ex rel. Lambert v. Cortellessi, 182 W.Va. 142, 386 S.E.2d 640 (1989)." Syllabus, Ney v. West Virginia Workers' Compensation Fund, 186 W.Va. 180, 411 S.E.2d 699 (1991).

Charles W. Ellis, Huntington, for petitioners.

Robert M. Nunley, Asst. Atty. Gen., Charleston, for respondent Andrew N. Richardson, Workers' Compensation Com'r Samuel P. Cook, Sr. Asst. Atty. Gen., Charleston, for respondent Robert J. Smith, Chief Administrative Law Judge.

MILLER, Justice:

The petitioners in this case are eight claimants seeking second injury life awards (SILA) or permanent total disability (PTD) awards from the respondents, the Commissioner of the State Workers' Compensation Fund (Commissioner) and Chief Administrative Law Judge (Chief ALJ) of the State Workers' Compensation Office of Judges. The petitioners have brought this original proceeding in mandamus requesting that we compel the respondents to issue orders granting PTD status in each of their claims. The petitioners also ask that the respondents be ordered to pay their reasonable attorney's fees, costs, and expenses incurred in this proceeding.

I.

Each of the eight petitioners is a claimant seeking benefits from the State Workers' Compensation Fund. Each of the petitioners has, in the course of litigating various claims for benefits, made motions for PTD status before the Workers' Compensation Office of Judges. In each case, once a motion for PTD had been made, the Office of Judges ceased action on the prior litigation, holding that portion of the claim in abeyance, and remanded the claim to the Commissioner solely for a determination on the PTD motion.

Upon remand of the claims by the Office of Judges, the Commissioner denied each of the petitioners' PTD motions without elaboration on the facts of the claim. Thereafter, each petitioner protested the Commissioner's denial of PTD status to the Office of Judges. These protests occurred between April and August of 1992. The Office of Judges had not rendered final appealable orders in any of the PTD claims as of September 17, 1992, the date of the petitioners' initiation of mandamus proceedings in this Court.

The petitioners initiated this extraordinary proceeding because of their belief that they have been "subjected to the same unduly burdensome and inefficient Workers' Compensation litigation process which has prevailed in West Virginia for so many years." The petitioners also assert that they have a right to PTD awards on the merits of their claims, and that mandamus is an appropriate proceeding to determine the merits of their PTD claims. The petitioners encourage us to "closely review the procedural handling of these work-related injury claims by the Workers' Compensation Fund (Commissioner and Office of Judges) and to decline to accept the inefficient handling of such claims[.]"

On November 4, 1992, we issued a rule to show cause against the respondents. This rule was not issued to examine the merits of the petitioners' PTD claims, but rather to determine whether the respondents were performing their legal duties as required by W.Va.Code, 23-5-1, et seq. We note that in 1990 the West Virginia legislature amended W.Va.Code, 23-5-1, et seq., and fundamentally altered the workers' compensation protest and hearing procedures. Because we have had no prior occasion to examine the new procedures, we formulated a series of ten questions to be answered by the parties to this action, and also solicited other interested counsel to offer briefs amicus curiae in response to those questions.

II.

It is commonly accepted that the protest and hearing procedures utilized by the State Workers' Compensation Fund prior to the 1990 amendments to W.Va.Code, 23-5-1, et seq., created a litigatory nightmare. Protested claims were known to flounder for years in a sea of delays, continuances, and sheer inefficiency. ¹ We are informed that a major problem of the earlier system was that the hearing examiners who conducted evidentiary hearings were not full-time employees.

Another critical problem was that some employers who had ceased doing business or who had gone into bankruptcy were not represented in the claims process. Consequently, where the claimant was seeking a substantial award, such as PTD or SILA, there would be an inadequate defense raised against these awards. Moreover, in SILA claims, because the employer, under the second-injury statute, W.Va.Code, 23-3-1, is charged only with the amount of disability created by the last injury, the employer would often acquiesce in the SILA where the last injury constituted a small percentage of the claimant's overall disability. This would result in the Second Injury Fund bearing the major portion of the SILA. ²

For the foregoing reasons, the legislature in 1990 made significant changes to the workers' compensation procedural system. ³ These changes became effective on July 1, 1991. ⁴ The 1990 amendments created the positions of full-time administrative law judges (ALJ). The ALJs are supervised by a Chief Administrative Law Judge (Chief ALJ). W.Va.Code, 23-5-1g. Moreover, the handling of evidentiary hearings, formerly controlled by the Commissioner, is now controlled by an ALJ in accordance with the time standards set forth in W.Va.Code, 23-5-1h.

Thus, the Commissioner's role under the new system contained in W.Va.Code, 23-5-1 (1990), is essentially one of fact gathering from the preliminary forms filed, the medical reports submitted by the parties, and independent physical examinations ordered by the Commissioner under W.Va.Code, 23-4-8 (1990). ⁵ The Commissioner makes rulings with regard to the benefits sought by a claimant or to the employer's challenges to benefits. If a party objects to these rulings, the matter is referred to the Office of Judges for an evidentiary hearing and an ultimate ruling by an ALJ.

Perhaps the most novel change to the compensation litigation scheme involves claims for a SILA or PTD award, that are now controlled by W.Va.Code, 23-5-1j. This section comes into play after a party has objected to the initial decision of the Commissioner in a claim where a SILA or PTD award is sought. Under W.Va.Code, 23-5-1 (1990), once the Commissioner has ruled, and either party objects, the objection is filed with the Office of Judges and is processed there. ⁶ The ALJ is then authorized under W.Va.Code, 23-5-1j(a) ⁷ to remand the matter to the Commissioner, who then has 120 days to develop additional information ⁸ and determine whether to grant such an award.

Furthermore, W.Va.Code, 23-5-1j(b), provides, that the protested decision must remain in effect during the remand proceedings before the Commissioner, and all action on the protest before the Office of Judges must be held in abeyance until the Commissioner renders a decision on the SILA or PTD motion within the 120-day period. If any party objects to the Commissioner's decision on the SILA or PTD motion upon remand, then pursuant to W.Va.Code, 23-5-1j(b), that objection must be made to the Office of Judges and must be "made part of the proceedings on the first objection." ⁹

Having in mind the purpose of W.Va.Code, 23-5-1j (1990), we cannot...