Plummer v. Workers Compensation Div., No. 28678.

• Court: Supreme Court of West Virginia
• Writing for the Court: McGRAW, Chief Justice
• Citation: 551 S.E.2d 46,209 W.Va. 710
• Parties: Betty J. PLUMMER, Appellant, v. WORKERS' COMPENSATION DIVISION and B.F. Goodrich Company, Appellees.
• Decision Date: 29 June 2001
• Docket Number: No. 28678.

551 S.E.2d 46
209 W.Va. 710

Betty J. PLUMMER, Appellant,
v.
WORKERS' COMPENSATION DIVISION and B.F. Goodrich Company, Appellees

No. 28678.

Supreme Court of Appeals of West Virginia.

Submitted June 5, 2001.

Decided June 29, 2001.

Dissenting Opinion of Justice Davis July 6, 2001.

551 S.E.2d 47

Colin M. Cline, Esq., Katz, Kantor & Perkins, Princeton, West Virginia, Attorney for Appellant

Gretchen E. Pyles, Esq., Jackson & Kelly, Charleston, West Virginia, Attorney for Appellee.

McGRAW, Chief Justice:

An employee claiming a workplace injury from exposure to toxic fumes appeals the denial of her workers' compensation claim. The Workers' Compensation Division (the "Division") found that the employee did not present sufficient evidence to demonstrate her injury was connected to her work. The Office of Judges (the "OOJ") affirmed, and refused to consider evidence submitted by the employee after the expiration of a "time frame" for evidence introduction. The Workers' Compensation Appeal Board (the "WCAB") affirmed the original decision, and the decision to exclude the offered evidence. In her appeal to this Court, the appellant argues that the OOJ should have considered her additional evidence, or ruled her claim compensable on the original evidence presented. We find that the OOJ and WCAB erred in not considering the additional evidence and reverse.

I.

BACKGROUND

Appellant Betty J. Plummer worked for 23 years at the B.F. Goodrich plant in Union, Monroe County, West Virginia. The plant made, at least at the time in question, deicing equipment for airplanes, which required the cutting, gluing and preparing of rubber parts. One of Ms. Plummer's jobs was to operate one of several laser cutting machines that put serial numbers onto the final product.

Hoods on these machines were intended to prevent the worker from being exposed to fumes produced by the laser cutting process. Ms. Plummer alleged that parts were sometimes too large to fit under the hood, so employees were told to use the machine with the hood up. Ms. Plummer complains that this exposed her to fumes from the laser cutting process, as well as increased concentrations of other plant fumes, which were drawn past her by the exhaust fan in the open hood.

On February 1, 1996, Ms. Plummer was overcome by fumes. She complained of numbness in her face and extremities, swelling and redness in her face, and difficulty

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breathing. A company nurse checked her condition, and asked her to perform a breathing test, but she was unable to generate sufficient airflow to get a reading on the test. She was sent back to work with a respirator for the rest of the day, and did not return to work after that time. Ms. Plummer visited her doctor the next day. Although her doctor found her condition to be consistent with both acute and chronic exposure to fumes, he apparently suggested benzine exposure as the cause. Ms. Plummer was also seen by a doctor on behalf of B.F. Goodrich on February 14, 1996. This doctor found that Ms. Plummer's complaints were most likely not work related, and were probably due to either allergies or depression

Limiting its analysis to her initial claim form and the report from the company's doctor, the Division denied her claim on July 24, 1996. Ms. Plummer appealed that decision to the OOJ within the time limit set by statute. After an unexplained period of inaction, the OOJ issued a so-called "time frame order" that established a period of time for the parties to present evidence in the dispute. B.F. Goodrich requested an extension of this time frame, and Ms. Plummer joined in that request. On March 24, 1998, the OOJ extended the time frame order for ninety days, setting it to expire on or about June 24, 1998.

Lawyers representing Ms. Plummer, meanwhile, had applied on her behalf for social security disability benefits for alleged chemical sensitivity that made it impossible for her to return to her former job. The Social Security Administration ruled in Ms. Plummer's favor on this claim. Also during this time, the firm representing Ms. Plummer experienced some personnel changes, leading to a change in the lawyer representing her. According to Ms. Plummer and her counsel, because of the social security proceeding and the change in representation, she was unable to present any additional evidence to the OOJ before the time frame order expired. On July 7, 1998, after the expiration of the time frame for presenting evidence, the OOJ entered an order that officially submitted the matter for decision. About three weeks later, on July 24, Ms. Plummer's counsel, hoping to introduce more evidence, made a motion to set aside the July 7 order that "submitted" the case, and asked for an extension of the time frame. Along with this motion, Ms. Plummer's counsel submitted additional evidence, including additional medical reports from specialists who had diagnosed her with problems relating to chemical exposure, along with information concerning the various chemicals that may have been in use at the plant.

Yet in spite of Ms. Plummer's explanation, on September 14, 1998, an Administrative Law Judge working in the OOJ denied Ms. Plummer's motion to extend the time frame and affirmed the prior denial of her claim by the Division. In that decision, the ALJ noted that she had not considered the additional evidence because Ms. Plummer offered it after the case had been "submitted" for a final decision. Ms. Plummer appealed to the WCAB, which eventually found against her and again affirmed the denial of her claim on April 30, 1999. It is from this order that she appeals to this Court.

Beneath this blizzard of dates, orders, and hearings, Ms. Plummer makes two basic arguments. First, she argues that the OOJ erred by finding that no good cause existed for extending the time frame order and thereby refusing to consider her additional evidence; second, she asserts that even without considering the excluded material, the OOJ had enough evidence to find in favor of Ms. Plummer. Because we find that the OOJ erred by failing to find "good cause" to extend the time frame order to permit the introduction of additional evidence, we reverse.

II.

STANDARD OF REVIEW

In most cases we show substantial deference to the factual findings of the Workers' Compensation Appeal Board: "This Court will not reverse a finding of fact made by the Workmen's Compensation Appeal Board unless it appears from the proof upon which the appeal board acted that the finding is plainly wrong." Syllabus, Rushman v. Lewis, 173 W.Va. 149, 313 S.E.2d 426 (1984)

551 S.E.2d 49

(citation omitted). However, our review of its legal conclusions is not so limited: "We are not required to, and do not, judge [the Appeal Board's] legal conclusions by a `clearly wrong' standard." Conley v. Workers' Comp. Div., 199 W.Va. 196, 199, 483 S.E.2d 542, 545 (1997) (alteration in original) (internal citations omitted) (quoting West Virginia Judicial Inquiry Comm'n. v. Dostert, 165 W.Va. 233, 235 n. 3, 271 S.E.2d 427, 429 n. 3 (1980))

III.

DISCUSSION

Several assignments of error are made by Ms. Plummer. She argues that both the OOJ and the WCAB erred in not allowing the consideration or examination of her additional evidence because she failed to offer that evidence before the expiration of the time frame order. She also argues that the OOJ should have ruled in her favor based on the evidence already in the record, and that the OOJ and WCAB applied the wrong "evidentiary burden" in examining her claim. At the outset of our discussion, we reiterate why our Legislature first enacted our Workers' Compensation Act:

The paramount reason for such legislation was, of course, that under the common law tort system workers injured in industrial accidents recovered compensatory damages in a rather small percentage of cases.

The common law tort system with its defenses of contributory negligence, assumption of risk and the fellow servant rule was considered inimical to the public welfare and was replaced by a new and revolutionary system wherein "fault" became immaterial—essentially a no-fault system.

The Workmen's Compensation Act was designed to remove negligently caused industrial accidents from the common law tort system.

Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 699-700, 246 S.E.2d 907, 910-11 (1978) (emphasis in original).

Consistent with this historical perspective,¹ we have long acknowledged that the Workers' Compensation Act is remedial legislation that has as its primary purpose helping injured workers: "The Workmen's Compensation Law is remedial in its nature, and must be given a liberal construction to accomplish the purpose intended." Syl. pt. 3, McVey v. Chesapeake & Potomac Telephone Co., 103 W.Va. 519, 138 S.E. 97 (1927) (citation omitted).

Over the years since the enactment of our Workers' Compensation Act, a great number of cases have espoused this principal of liberality:

"Compensation Acts, being highly remedial in character, though in derogation of the common law, should be liberally and

551 S.E.2d 50

broadly construed to effect their beneficient [sic] purpose." Sole v. Kindelberger, 91 W.Va. 603, 114 S.E. 151, 153 (1922). We consistently apply a liberality rule in workmen's compensation cases. Zackery v. State Workmen's Compensation Commission, 162 W.Va. 932, 253 S.E.2d 532 (1979); Johnson v. State Workmen's Compensation Commissioner, 155 W.Va. 624, 186 S.E.2d 771 (1972); Morris v. State Compensation Commissioner, 135 W.Va. 425, 64 S.E.2d 496 (1951); McVey v. Chesapeake & Potomac Telephone Co., 103 W.Va. 519, 138 S.E. 97 (1927).

Lee-Norse Co. v. Rutledge, 170 W.Va. 162, 166, 291 S.E.2d 477, 481 (1982).

Often repeated in our jurisprudence is this notion of liberality and the idea that the law exists to aid workers in their recovery and not to thwart them. Consistent with this view, the Legislature established that:

The commissioner shall not be bound by the usual

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