Nelson v. Merritt

• Decision Date: 09 December 1985
• Docket Number: No. 16742,16742
• Citation: 176 W.Va. 485,345 S.E.2d 785
• Parties: Byrd NELSON, et al. v. Mary Martha MERRITT, Commissioner, Workers' Compensation Commission.
• Court: West Virginia Supreme Court

Page 785

345 S.E.2d 785

176 W.Va. 485

Byrd NELSON, et al. v. Mary Martha MERRITT, Commissioner, Workers' Compensation Commission.

No. 16742.

Supreme Court of Appeals of West Virginia.

Dec. 9, 1985.

Dissenting Opinion June 12, 1986.

Syllabus by the Court

1. Where a Workers' Compensation claim is in litigation, both the employer and the claimant are entitled to a reasonable number of medical examinations.

2. "Long delay in processing claims for [Workers'] Compensation is not consistent with the declared policy of the Legislature to determine the rights of claimants as speedily and expeditiously as possible. W.Va. Code, 23-5-3a." Syl. pt. 1, Workman v. Workmen's Compensation Comm'r, 160 W.Va. 656, 236 S.E.2d 236 (1977).

3. "W.Va. Code, 23-4-8, when liberally construed to achieve the objectives of the workers' compensation law, requires claimants and employers to promptly exchange all medical reports and submit them directly to the Commissioner without waiting for an evidentiary hearing. Upon receipt, medical reports will become a part of the record in the case, subject to the right of an opposing party to object to their admissibility and to cross-examine the medical experts. Admissibility objections and requests for cross-examination must also be promptly submitted to the Commissioner to avoid needless evidentiary hearings." Syl. pt. 5, Brogan v. Workers' Compensation Comm'r, 174 W.Va. 517, 327 S.E.2d 694 (1984).

4. Where a workers' compensation claim is in litigation, both the claimant and the employer are entitled to a reasonable number of medical examinations, and syl. pt. 1 of Brogan v. Workers' Compensation Comm'r, 174 W.Va. 517, 327 S.E.2d 694 (1984), is modified accordingly.

Amos C. Wilson, Logan, for appellant.

Robert L. Stultz, Charleston, for appellee.

BROTHERTON, Justice:

In this mandamus proceeding, involving six consolidated workers' compensation claims, the Court is asked to review and modify, clarify, or reverse its decision in Brogan v. Workers' Compensation Comm'r, 174 W.Va. 517, 327 S.E.2d 694 (1984), as to the Court's interpretation of W.Va. Code § 23-4-8 (1985).

Each petitioner in the case presently under consideration claims to be aggrieved by the Brogan decision because the decision has prevented him from submitting evidence necessary to develop his case fully. ¹ Several petitioners additionally complain of long administrative delays and are distressed about the Brogan requirements relating to the exchange of medical reports. ²

This Court is asked, among other things, to:

1. Modify the Brogan decision so as to permit a claimant to select more than one physician to examine and evaluate him for each medical examination conducted by a physician neutrally selected by the Commissioner; and

2. Reverse syl. pt. 5 of the Brogan decision setting out procedural requirements for exchange of medical reports, notice of objections to medical reports, and requests for examination of the medical expert, prior to an evidentiary hearing.

While we feel that the Brogan requirements relating to the exchange of medical reports, notice of objections to medical reports, and requests for examination of the medical expert prior to an evidentiary hearing was a correct decision and one necessary for the speedy and expeditious administration of justice, we are no longer convinced that the "one doctor rule" in Brogan, as it is being applied, is legally correct.

The Brogan decision grew out of a ruling of the Workers' Compensation Appeal Board, affirming a ruling of the Workers' Compensation Commissioner, reducing the claimant's permanent partial disability award from 20% to 15%. Mr. Brogan, the claimant, was upset over the number of medical evaluations he was required to undergo in order to resolve his claim and asked this Court to limit the number of evaluations required of a claimant. This Court, persuaded by Mr. Brogan's arguments, adopted the rule set forth in syl. pt. 1 of the Brogan decision (see note 1, supra) and held that W.Va. Code § 23-4-8 (1985) limited the claimant and the employer to one additional medical evaluation after the Commissioner had referred the claimant out for an independent evaluation.

The petitioners now claim that this holding was incorrect and that the Commissioner's memoranda of procedural requirements dated February 8, 1985, and May 6, 1985, designed to implement the Brogan decision compound the problem. After carefully considering the parties' briefs and the law relating to the question, it is apparent that our decision in Brogan requires clarification.

I.

In interpreting § 23-4-8, the Brogan decision confined its inquiry to the first paragraph of that section, dealing with the initial determination of the proper award for a claimant's injury, to-wit, temporary total disability payment, or claims not in litigation. See Brogan, supra, 174 W.Va. at 520-21, 327 S.E.2d at 698. In such cases, the Commissioner refers the claimant to a single physician for an examination and, if the claimant or the employer so desired, he, too, might require the claimant to be examined and evaluated a single time. The Brogan decision was correct to the extent that it applied the one-doctor rule to claims not in litigation.

Brogan was incorrect, however, in its application of the first paragraph of § 23-4-8 to claims in litigation. ³ The second paragraph of § 23-4-8 deals with the evaluation procedure of Compensation claims in litigation:

Where the claimant is required to undergo a medical examination or examinations by a physician or physicians selected by the employer, as aforesaid or in connection with any claim which is in litigation, the employer shall reimburse the claimant for loss of wages, and reasonable traveling and other expenses in connection with such examination or examinations, not to exceed the expenses paid when a claimant is examined by a physician or physicians selected by the commissioner. (emphasis added)

It is clear from reading the second paragraph of W.Va. Code § 23-4-8 that by use of the plural "examinations" and "physicians" the legislature intended that the employer be entitled to more than one medical examination by more than one physician as selected by the employer. ⁴ In interpreting a statute, each word of the statute should be given some effect, and if undefined will be given its common, ordinary, accepted meaning. See, e.g., Wooddell v. Dailey, 160 W.Va. 65, 68, 230 S.E.2d 466, 469 (1976). The phrase "examination or examinations" unambiguously allows for one or more examinations. If the legislature had intended for the claimant to be examined only once, they would not have used the plural nouns "examinations" and "physicians." It is implied, of course, that if the employer is entitled to more than one medical examination that the claimant is also entitled to more than one medical examination.

The right of the claimant and the employer to have a number of medical examinations is further strengthened when W.Va. Code § 23-4-7a (1985) (which deals with monitoring of temporary total disability claims and a procedural requirement for review and evaluation, if any, for permanent partial disability) is read in pari materia with § 23-4-8. CODE⁵ § 23-4-7a(e), in support of § 23-4-8, provides that "[t]he provisions of this section are in addition to and are in no way in derogation of the power and authority vested in the Commissioner by other provisions of this chapter or vested in the employer to have a claimant examined by a physician or physicians of its selection ..." Again, the use of the plural "physicians" indicates multiple examinations are contemplated. We, therefore, hold that where a Workers' Compensation claim is in litigation, both the employer and the claimant are entitled to a reasonable number of medical examinations, ⁶ and we modify Brogan accordingly.

II.

While the petitioners seek a reinterpretation or reversal of Brogan as to the number of medical examinations the claimant and employer may request, and a reversal of syl. pt. 5 in Brogan, the underlying relief sought by the claimants is a semblance of order in the procedures which allow for endless continuances without just cause shown, denying the claimant his right to a speedy and expeditious determination of his claim pursuant to the policy as set forth in W.Va. Code § 23-5-3a (1985), ⁷ and syl. pt. 1 of Workman v. Workmen's Compensation Comm'r, 160 W.Va. 656, 236 S.E.2d 236 (1977).

Brogan attempted to grant the claimant some relief in syl. pt. 5 by stressing that W.Va. Code § 23-4-8 requires the exchange of medical reports, the admission of the medical reports, and reply by the parties as to their objection to the reports or their desire to cross-examine the medical experts. This is really the heart of Brogan and apparently the Commissioner has ignored it in her procedural rules because it would appear that numerous continuances were granted in the six cases herein, without any just cause being shown. This Court, in Scites v. Huffman, 174 W.Va. 191, 324 S.E.2d 152, 156 (1984), restated what had already been said in Brogan by holding that long delays in processing claims were not consistent with the intent of the legislature in the enactment of compensation legislation, nor does it benefit the claimant. The Court in Scites restated the sections of the Workers' Compensation Act which deal with mandatory procedural requirements and mandatory processing requirements, with the hope that the Commissioner would bring some order out of the morass that would expedite the claimant's claim and require the lawyers, who seem to be in control of procedural guidelines for the Commission, to have all of their medical examinations completed within a specified period of time, and if the medical expert was to testify, the direct and cross-examination would all be completed in one day and continuances would not be granted for additional examinations once the period had passed when examinations...