Pnakovich v. SWCC, s. 14522

• Citation: 163 W.Va. 583,259 S.E.2d 127
• Decision Date: 16 October 1979
• Docket Number: Nos. 14522,14538,14535 and 14589,14537,s. 14522
• Court: Supreme Court of West Virginia
• Parties: Albert L. PNAKOVICH v. SWCC and Island Creek Coal Co. Howard BRADLEY v. SWCC and Westmoreland Coal Co. Allen G. PHILLIPS v. SWCC and Carbon Fuel Co. Charles W. BRAGG v. SWCC and Consolidation Coal Co. et al., Consolidation Coal Co. Donald Eugene GILLENWATER v. SWCC and Consolidation Coal Co.

Page 127

259 S.E.2d 127

163 W.Va. 583

Albert L. PNAKOVICH v. SWCC and Island Creek Coal Co.

Howard BRADLEY v. SWCC and Westmoreland Coal Co.

Allen G. PHILLIPS v. SWCC and Carbon Fuel Co.

Charles W. BRAGG v. SWCC and Consolidation Coal Co. et al., Consolidation Coal Co.

Donald Eugene GILLENWATER v. SWCC and Consolidation Coal Co.

Nos. 14522, 14537, 14538, 14535 and 14589.

Supreme Court of Appeals of West Virginia.

Oct. 16, 1979.

Syllabus by the Court

W.Va.Code, 23-4-6a (1978), which provides that a claimant who has occupational pneumoconiosis with no measurable impairment may receive twenty weeks of benefits, is a procedural modification applicable to all claims pending before the Commissioner or the Appeal Board on the date the statute became effective, 1 July 1978.

George G. Burnette, Jr., Charleston, for Pnakovich.

Timothy R. Ruckman, Callaghan & Callaghan, Richwood, for Island Creek Coal.

Rodney A. Skeens, Beckley, for Bradley.

Edward G. Atkins, Charleston, for Phillips.

George G. Burnette, Jr., Charleston, for Bragg.

Furbee, Amos, Webb & Critchfield, Billy Atkins, Morgantown, for Consolidation Coal.

John P. Anderson, Princeton, for Gillenwater.

Jackson, Kelly, Holt & O'Farrell, John L. McClaughery and J. Randolph Query, Charleston, for Westmoreland, Carbon Fuel and Consolidation Coal.

NEELY, Justice:

These five cases present substantially the same question and for the purpose of appeal are consolidated for decision. The question presented is whether a claimant qualifies for a twenty week award for occupational pneumoconiosis without measurable pulmonary impairment under W.Va.Code, 23-4-6a (1978) when the date of injury (date of last exposure) predated the effective date of the amended statute. In the three cases where the Commissioner's final order denying benefits was entered before the effective date of the statute, the Workmen's Compensation Appeal Board did not apply the amendment on the theory that the claim was fully adjudicated before the effective date of the amendment. Conversely, the Appeal Board found that the two appellees who were denied their awards after the effective date were eligible for awards. We find that in all claims where the final order of the Commissioner or the Appeal Board, if an appeal was taken, was entered after the effective date of the amendment, recovery may be had under the new statute. Thus we affirm the two cases regarding the appellee-claimants and reverse the three cases of the appellant-claimants.

All five of the claimants in these cases were found by the Commissioner's final orders to suffer from occupational pneumoconiosis with no ascertainable impairment. The dates of the Commissioner's final orders were as follows: Allen Phillips, 12 December 1977; Albert Pnakovich, 12 May 1978; Howard Bailey, 13 June 1978; Donald Gillenwater, 14 August 1978; and, Charles Bragg, 31 August 1978. Interestingly, there was no correlation between the date of filing and the date of decision by the Commissioner. While Allen Phillips was denied an award seven years after he applied, Charles Bragg was granted an award by the Appeal Board five years after he had applied.

I

The narrow legal question these cases present is whether the amendment, W.Va.Code, 23-4-6a (1978), ¹ which schedules benefits payable for a diagnosis of occupational pneumoconiosis without measurable impairment, is a procedural change which should be applied retroactively or a substantive change which can be applied only prospectively. At the outset, it is important to remember that calling a statutory change "procedural" or "substantive" does not improve our understanding of whether a statute should or should not be applied retroactively. The whole business of designating things as "substantive" or "procedural" must be approached cautiously because there is no clear or consistent line of cases which provides guidance for distinguishing a matter of substance from a matter of procedure. It appears from the cases we have read that once a court decides the issue of retroactivity it justifies its result by calling the change "substantive" or "procedural." ²

Our Court has recently expanded its case law definitions of "procedural change" to avoid manifestly unjust results which would have followed from the requirement that substantive statutes be applied prospectively in all but a few limited circumstances. As recently as 1971 we held that amendments to the Workmen's Compensation Act could be given only prospective effect, Loveless v. State Workmen's Compensation Comm'r, 155 W.Va. 264, 184 S.E.2d 127 (1971); however, we have now retreated from this rule to such an extent that the validity of the rule itself is called into considerable question. In a series of recent Workmen's Compensation cases this Court has performed the traditional judicial function of sacrificing legal rules upon the altar of equity. Thus in Eggleton v. State Workmen's Compensation Comm'r, W.Va., 214 S.E.2d 864 (1975), we held that amendments enacted in 1970 and 1971, which expanded the time in which a claim could be reopened, applied to an employee who had been injured before the amendment's effective date. Similarly, in Lester v. State Workmen's Compensation Comm'r, W.Va., 242 S.E.2d 443 (1978), we held that an amendment which expanded the statute of limitations for filing an occupational pneumoconiosis claim applied to a claimant whose last exposure was before the amendment's effective date. In both of these cases and Per curiam opinions following their reasoning we characterized the statutes as procedural and held that they did not create any new substantive rights. The employers involved, however, found procedural changes as expensive as substantive ones.

II

Recognizing that the words "substantive" and "procedural" are not talismanic, ³ we conclude that the change in the law under consideration in these cases falls more on the procedural side than on the substantive side. These cases lie in the borderland where procedure and substance merge imperceptibly. "The precise meaning to be given 'substance' and to 'procedure' ought . . . to be determined in the light of (the) underlying purpose to be fair to the individuals concerned." Cook, Logical and Legal Bases of Conflicts of Laws, 343 (1942). In determining the central question concerning retroactivity we should look to the purpose of the statute. The heart of the procedural/substantive nomenclature is both the nature of the change and its purpose. The Legislature's action reveals the peculiar nature of workmen's compensation law, particularly in the field of pulmonary disabilities, where disabilities often are not manifest until years after the last exposure to the causes of the disease. The Legislature insured that an employee suffering from occupational pneumoconiosis without measurable pulmonary impairment will not be barred from additional benefits by giving him an award which can then be reopened if his disability increases to a measurable level. Under W.Va.Code, 23-4-16 (1974), the claimant who received no award could apply for a reopening only within three years of the date of injury but under this amendment the claimant is eligible for a reopening under the standard procedure applicable after an award has been granted, namely, not more than two reopenings within five years after the Commissioner's final payment on the original award, W.Va.Code, 23-4-16 (1974). Significantly, all of the claimants in these actions would have been barred from reopening their claims because more than three years had elapsed since the date of last exposure. Thus W.Va.Code, 23-4-6a (1978) may be perceived as a procedural change which granted the claimants the opportunity to reopen their claims for a five year period after the Commissioner's final order.

In addition to expanding the statute of limitations applicable to an employee suffering from occupational pneumoconiosis without measurable impairment, this statutory amendment under consideration, W.Va.Code, 23-4-6a (1978), codified the Legislature's recognition that the alteration and damage to lung tissue by reaction to the presence of minute particles of dust is a disability even though there may not be, as has been argued elsewhere by employers, a satisfactory method to evaluate the extent of such damage below 15%.

Prior to the enactment of W.Va.Code, 23-4-6a (1978), a man with diagnosable occupational pneumoconiosis had a compensable disease but often due to the inability of the tests to measure disabilities on ventilatory and blood gas studies he received no award notwithstanding the possibility that he had an actual impairment which could not be measured. This was a defect in medical testing rather than a defect in the law. Now the rate has been increased from zero to approximately 5% To take into account the probable defect in the medical tests. At first glance that appears to be the creation of a new right, but it is only an increase in benefits for an existing right. Under W.Va.Code, 23-4-14 (1976) the Legislature has directed that if there are any changes in the compensation, "the claimant shall receive such increased or decreased benefits beginning as of the effective date of said increase or decrease." Certainly in the cases at bar if the claimants could have produced a new test which proved that they had an impairment of less than 15% But more than zero they would have been entitled to recover. Even though there may not be a satisfactory test, the claimants always had the cause of action even at the date of injury; as soon as they could have conceived of a way of proving their case they could have recovered.

III

The cornerstone of our decision today rests on the knowledge that we have not impaired any reliance interest of any party by applying this statute retroactively. In Lester, supra, we retreated from the early theory that the Workmen's Compensation Act is based on contract since the coverage is now mandatory, ...