Ney v. West Virginia Workers' Compensation Fund

• Decision Date: 21 November 1991
• Docket Number: No. 20027,20027
• Court: West Virginia Supreme Court
• Parties: Anthony M. NEY, Petitioner Below, Appellee, v. WEST VIRGINIA WORKERS' COMPENSATION FUND, Respondent Below, Appellant.

Page 699

411 S.E.2d 699

186 W.Va. 180

Anthony M. NEY, Petitioner Below, Appellee, v. WEST VIRGINIA WORKERS' COMPENSATION FUND, Respondent Below, Appellant.

No. 20027

Supreme Court of Appeals of West Virginia.

Submitted Sept. 25, 1991.

Decided Nov. 21, 1991.

Syllabus by the Court

" '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).

C. Terry Owen, Sr. Asst. Atty. Gen., Charleston, for appellant.

Terry M. Jordan, McIntyre, Haviland & Jordan, Charleston, for appellee.

PER CURIAM:

The primary issue in the case now before us concerns whether the Circuit Court of Kanawha County erred in issuing a writ of mandamus compelling the West Virginia Workers' Compensation Fund to change the onset date of the permanent total disability (PTD) award granted by the Workers' Compensation Commissioner to the appellee, Anthony N. Ney, from December 27, 1989, to September 27, 1978. We conclude that, although mandamus will lie to compel the Commissioner to act if he or she unreasonably neglects or refuses to do so, it does not lie to prescribe in what manner the Commissioner should act in the exercise of his or her discretion, or to correct any errors the Commissioner may have made. The circuit court is therefore reversed.

I

The facts which are relevant to the issue before us consist primarily of the procedural history. ¹ Mr. Ney injured his left knee at work on September 27, 1978. He filed an application for benefits and the Commissioner subsequently held that the claim was compensable. Thereafter, on February 16, 1983, based on the medical report of A.A. Abplanalp, M.D., the Commissioner granted the claimant a 40% permanent partial disability (PPD) award.

Mr. Ney protested the Commissioner's decision and submitted additional medical evidence indicating that his disability was greater than 40%. The Commissioner, in subsequent orders, increased the claimant's PPD award based upon that medical evidence. Then, by letter dated December 27, 1989, the claimant made a motion for a second injury life award and submitted the medical reports of R.A. Crawford, M.D., and Frances H. Hughes, Jr., M.D., in support of that motion. By order dated April 3, 1990, the Commissioner granted the claimant a PTD award and found that the onset date of that PTD was December 27, 1989, the date the appellee filed a motion for a second injury life award and submitted medical reports stating that he was permanently and totally disabled.

The appellee appealed that decision to the Workers' Compensation Appeal Board and also petitioned this Court for a writ of mandamus to compel the Workers' Compensation Fund to recalculate his PTD award with an onset date of September 27, 1978, rather than December 27, 1989. We refused that petition. The appellee then petitioned the Circuit Court of Kanawha County for a writ of mandamus to compel the Workers' Compensation Fund to change the onset date of his PTD award from December 27, 1989, to September 27, 1978. Following a hearing on that petition, the circuit court entered an order on August 27, 1990, granting the writ of mandamus. This matter is now before this Court on appeal of that decision by the Workers' Compensation Fund.

II

The sole issue before us is whether the circuit court erred in granting a writ of mandamus compelling the Workers' Compensation Fund to recalculate the onset date of the appellee's PTD award as of September 27, 1978, rather than September 27, 1989.

We have traditionally held that three factors must co-exist before a writ of mandamus shall issue. As we pointed out in syllabus point 2 of Williams v. Robinson, 180 W.Va. 290, 376 S.E.2d 304 (1988):

' "A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a clear legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).' Syl. pt. 1, Rogers v. Hechler, 176 W.Va. 713, 348 S.E.2d 299 (1986).

Moreover, mandamus may be employed to compel the exercise of discretion, but it may never be used to control its exercise as we pointed out in syllabus point 2 of State ex rel. Lambert v. Cortellessi, 182 W.Va. 142, 386 S.E.2d 640 (1989):

'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). ²

Applying the foregoing principles to this case, we find that the circuit court erred in granting the writ of mandamus. This Court has specifically recognized that the Workers' Compensation Commissioner has reasonable discretion in selecting the beginning date for the award and payment of PTD benefits where there are multiple reports from various experts which establish that a claimant has reached PTD status. ³ Syl. pt. 2, Young...