Pioneer Pipe, Inc. v. Swain, 15–0397

• Court: Supreme Court of West Virginia
• Citation: 791 S.E.2d 168,237 W.Va. 689
• Decision Date: 19 September 2016
• Docket Number: No. 15–0397,15–0397
• Parties: Pioneer Pipe, Inc., Petitioner v. Stephen Swain, Brayman Construction, and J & J General Maintenance, Inc., Respondents

237 W.Va. 689
791 S.E.2d 168

Pioneer Pipe, Inc., Petitioner
v.
Stephen Swain, Brayman Construction, and J & J General Maintenance, Inc., Respondents

No. 15–0397

Supreme Court of Appeals of West Virginia.

Submitted: September 7, 2016
Filed: September 19, 2016

James W. Heslep, Esq, Steptoe & Johnson PLLC, Bridgeport, West Virginia, Counsel for Petitioner, Pioneer Pipe.

Jeffrey B. Brannon, Esq., Cipriani & Werner, P.C., Charleston, West Virginia, Counsel for Respondent, J & J General Maintenance.

Lawrence B. Lowry, Esq, Barrett, Chafin, Lowry & Amos, Huntington, West Virginia, Counsel for Respondent Stephen Swain.

Lisa Warner Hunter, Esq., Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Charleston, West Virginia, Counsel for Respondent, Brayman Construction.

Chief Justice Ketchum :

The parties in this workers' compensation case debate a simple question: should the word “may” in a statute actually be construed to mean “shall?” We find that the general rule is that a statute that uses the word “may” is inherently permissive in nature and signifies that the Legislature meant to make the referenced act discretionary, rather than mandatory.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Respondent Stephen Swain worked out of a union hall for thirty-three years as a heavy-equipment operator employed by different construction companies. Mr. Swain testified that he was routinely exposed to unusual or excessively loud noise in the course of his employment, not only from the machines he operated but also from the other equipment being used around him.

Mr. Swain last worked, and was last exposed to the hazards of occupational noise, on March 21, 2013. Mr. Swain's employer on his date of last exposure is the petitioner in this appeal, Pioneer Pipe, Inc. Pioneer Pipe employed Mr. Swain for a total of forty hours.

On May 1, 2013, an otolaryngologist diagnosed Mr. Swain with bilateral sensorineural hearing loss directly attributable to industrial noise exposure in the course of and resulting from his employment. Mr. Swain thereafter filed claims for workers' compensation benefits for his occupational hearing loss.

An administrative law judge with the Workers' Compensation Office of Judges later identified Pioneer Pipe and two other employers¹ as being potentially “chargeable” for Mr. Swain's claim.

West Virginia's workers' compensation system has been administered by the Insurance Commissioner since 2006.² West Virginia's workers' compensation statutes provide that when a claimant files a hearing loss

791 S.E.2d 170

claim, the “Insurance Commissioner may allocate to and divide any charges resulting from the claim among the employers with whom the claimant sustained exposure to hazardous noise for as much as sixty days during the three years immediately preceding the date of last exposure.”³ However, the Insurance Commissioner issued a policy statement saying that, because “claims allocation is a discretionary practice” and “does not exist in most other states,” the Insurance Commissioner “will no longer be allocating workers' compensation claims” to different employers in occupational hearing loss claims.⁴

In an order dated November 6, 2014, an administrative law judge noted the Insurance Commissioner's discretionary policy not to allocate and divide any charges for hearing loss claims. Under this policy, “the chargeable employer will be the last employer with whom the claimant was exposed to hazardous noise in the course of and resulting from employment.” The administrative law judge found that Mr. Swain worked for Pioneer Pipe on March 21, 2013, his date of last exposure to the hazards of occupational noise; accordingly, Pioneer Pipe was ruled to be the sole chargeable employer responsible for paying Mr. Swain's hearing loss claim. Pioneer Pipe appealed the order, but the Workers' Compensation Board of Review affirmed it in an order dated April 3, 2015.

Pioneer Pipe now appeals the determination finding it to be the sole chargeable employer in this workers' compensation claim.

II.

STANDARD OF REVIEW

Pioneer Pipe asks this Court to interpret West Virginia's workers' compensation statutes, and to find that the interpretations of the statutes by the Insurance Commissioner, by the Office of Judges, and by the Board of Review are wrong. “Where the issue on an appeal is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.”⁵

III.

ANALYSIS

Pioneer Pipe's argument focuses on W.Va. Code § 23–4–6b(g) [2009], which sets forth standards for awarding benefits in an occupational hearing loss claim. The statute also provides a means for apportioning and separating responsibility for paying a hearing loss claim. The statute provides, in pertinent part and with emphasis added:

The Insurance Commissioner may allocate to and divide any charges resulting from the claim among the employers with whom the claimant sustained exposure to hazardous noise for as much as sixty days during the period of three years immediately preceding the date of last exposure. The allocation is based upon the time of exposure with each employer. In determining the allocation, the Insurance Commissioner shall consider all the time of employment by each employer during which the claimant was exposed and not just the time within the three-year period under the same allocation as is applied in occupational pneumoconiosis cases.⁶

As previously noted, the Insurance Commissioner has interpreted this statutory language as being discretionary, not mandatory. The Insurance Commissioner has, in light of

791 S.E.2d 171

this discretionary language, chosen not to allocate and divide charges for hearing loss claims. Rather, the Insurance Commissioner's policy is that the sole chargeable employer is the one that employed the claimant on his or her date of last exposure to hazardous noise.

Pioneer Pipe contends that the language of W.Va. Code § 23–4–6b(g) imposes a mandatory duty upon the Insurance Commissioner to allocate and divide the charges for a hearing loss claim, if the claimant was injured while in the employ of multiple employers. Furthermore, Pioneer Pipe interprets this statute to mean that, for an employer to be chargeable with a hearing loss claim, the claimant must have worked for the employer for at least sixty days in the three years preceding the date of last exposure. Because Mr. Swain only worked for Pioneer Pipe a total of forty hours in the days preceding March 21, 2013, Pioneer Pipe argues it cannot be charged with his hearing loss claim.

We reject Pioneer Pipe's argument. W.Va. Code § 23–4–6b(g) plainly says that the “Insurance Commissioner may allocate and divide any charges” for a hearing loss claim between employers. Under the statute, if the Insurance Commissioner chooses to separate and assign the charge for the claim to different employers, then the charge can be assigned only to a limited class of employers (those who exposed the claimant to hazardous noise for at least sixty days in the three years preceding the date of last exposure). However, the Insurance Commissioner has elected not to allocate charges for hearing loss claims. “An elementary principle of statutory construction is that the word ‘may’ is inherently permissive in nature and connotes discretion.”⁷ “The word ‘may’ generally should be read as conferring both permission and power[.]”⁸ The Legislature's choice of the word “may” usually “renders the referenced act discretionary, rather than mandatory, in nature.”⁹

In a policy statement interpreting W.Va. Code § 23–4–6b(g),¹⁰ the Insurance Commissioner determined that “claims allocation is a discretionary practice” and that while allocation of responsibility had happened in the past, no further allocation of claims would occur. The Insurance Commissioner stated that “the benefit of allocating claims would be outweighed by the problems which would be created by attempting to allocate claims in West Virginia's privatized workers' compensation [insurance] market.”¹¹ The Insurance Commissioner's decision to no longer allocate claims “was further based on the fact that the practice of claims allocation does not exist in most other states, and therefore continuing claims allocation in West Virginia would be counter-productive to

791 S.E.2d 172

encouraging a competitive [workers's compensation insurance] market[.]” In other words, the Insurance Commissioner exercised his discretion not to allocate and divide charges for claims among employers with whom the claimant was exposed to hazardous noise for as much as sixty days during the three years prior to the date of last exposure.

The respondents in this case point out that the Insurance Commissioner has adopted regulations establishing the minimum contents of a workers' compensation insurance policy.¹² Under these regulations, each workers' compensation policy sold to a West Virginia employer must provide coverage for “any bodily injury with a date of injury within the policy period[.]”¹³ Importantly, the regulations require a policy have coverage “for any occupational disease”—such as noise-induced hearing loss—“with a date of last exposure within the...