Reed v. Exel Logistics, Inc.

Decision Date06 June 2018
Docket NumberNo. 17-0864,17-0864
Citation815 S.E.2d 511
CourtWest Virginia Supreme Court
Parties Edward REED, Petitioner v. EXEL LOGISTICS, INC., Respondent

M. Jane Glauser, Esq., Schrader Byrd & Companion, PLLC, Wheeling, West Virginia, Counsel for the Petitioner

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

Justice Ketchum :

In this appeal from the Workers’ Compensation Board of Review, an employer paid temporary total disability benefits to a claimant for almost two-and-a-half years while the claimant was undergoing medical and physical rehabilitation. Months later, the employer discovered it had paid the claimant benefits for an extra 156 days beyond the date the employer was statutorily required to pay. The employer then declared those 156 days an "overpayment" and sought to recover the benefits from the claimant.

The Board of Review concluded that, under our workers’ compensation laws, the employer could reclaim those benefits. However, this Court finds the Board of Review has misread those laws. Under the relevant workers’ compensation law, W.Va. Code § 23-4-1c(h) [2009], an employer is required to (1) give the claimant notice and clearly move to modify or terminate temporary total disability benefits on a specific date; (2) be initially unsuccessful in the modification or termination; and then (3) receive a successful ruling on the modification or termination in an adversarial proceeding. Only then may the employer recover the benefits overpaid between the date of the motion and date of the successful ruling. As set forth below, because the employer never sought to modify or terminate the benefits until 156 days after the statutory deadline, and wholly failed to follow the process set out in W.Va. Code § 23-4-1c(h), we reverse the Board of Review.


The claimant in this workers’ compensation case is Edward Reed, who worked as a shuttle driver for his employer, Exel Logistics, Inc. On June 27, 2013, the claimant stepped on the frame of a truck and slipped. He heard a "snap" in his left foot as he fell. A doctor diagnosed the claimant with a left ankle fracture

,1 and he underwent several surgeries to repair and stabilize the injury. The record indicates that, despite the surgeries, the claimant continued to have instability in the ankle.

The claimant promptly submitted a claim for workers’ compensation benefits, and his employer’s workers’ compensation insurer promptly found the claim compensable. More importantly, the claims examiner for the insurer promptly began paying the claimant temporary total disability benefits of $67.37 a day.

The claimant continued to visit doctors and physical therapists over the next two-and-a-half years. Then, on November 25, 2015, the claimant’s doctor prepared a "Physician’s Report of Work Ability" wherein he declared that the claimant had reached his maximum degree of medical improvement ("MMI"). The doctor also opined that the claimant was a candidate for vocational rehabilitation services focused on returning the claimant to work.

In response to the doctor’s report of MMI, the claims examiner halted the claimant’s temporary total disability benefits, effective November 24, 2015. Additionally, the claims examiner entered orders refusing to approve further physical therapy or vocational evaluations.

A physician examined the claimant for any permanent impairment caused by his work-related injury. Based upon that examination, the claims examiner granted a 4% permanent partial disability award to the claimant, equal to $7,553.44.

However, West Virginia law limits the payment of temporary total disability benefits to a claimant to a maximum period of "one hundred four weeks." W.Va. Code 23-4-6(c) [2005]. In an order dated June 22, 2016, relying upon this statute, the claims examiner for the first time decided that the payment of temporary total disability benefits to the claimant should have terminated two years after his injury, that is, by June 27, 2015. The insurer’s claims examiner retroactively declared that the insurer had improperly paid the claimant benefits for 156 days beyond the 104-week statutory cap, until November 24, 2015.

The claims examiner calculated that the insurer had overpaid the claimant $10,509.72. Using this overpayment figure, the claims examiner refused to pay the claimant his permanent partial disability award and instead declared that the claimant had a remaining overpayment—to be credited against any future award—of $2,956.28.

The claimant protested the claims examiner’s overpayment order to the Office of Judges. On March 6, 2017, the Office of Judges entered an order reversing the claims examiner and finding that the claims examiner had failed to timely seek to terminate the claimant’s benefits in June 2015, or to otherwise comply with workers’ compensation laws pertaining to the modification or overpayment of temporary total disability benefits. The Office of Judges therefore concluded that the claims examiner was legally prohibited from declaring an overpayment of the 156 days of benefits paid after that date. However, in an order dated August 30, 2017, the Workers’ Compensation Board of Review reversed the Office of Judges and reinstated the claims examiner’s decisions regarding an overpayment.

The claimant, Mr. Reed, now appeals the Board of Review’s overpayment decision.


This case comes to this Court from an order of the Board of Review which reversed the decision of the Office of Judges. Our review is, therefore, guided by W.Va. Code § 23-5-15(d) [2005], which provides in part:

(d) If the decision of the board effectively represents a reversal of a prior ruling of either the commission or the office of judges that was entered on the same issue in the same claim, the decision of the board may be reversed or modified by the supreme court of appeals only if the decision is in clear violation of constitutional or statutory provisions, [or] is clearly the result of erroneous conclusions of law, ...

Moreover, the Board of Review’s decision involved the interpretation of workers’ compensation statutes pertaining whether an "overpayment" of temporary total disability benefits has occurred. In Syllabus Point 1 of Appalachian Power Company v. State Tax Department , 195 W.Va. 573, 466 S.E.2d 424 (1995), this Court explained that "[i]nterpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review." Hence, when a question on appeal from the Board of Review raises a question of law, under W.Va. Code § 23-4-15 we review the Board’s resolution of the question de novo . See , e.g. , Lovas v. Consolidation Coal Company , 222 W.Va. 91, 95, 662 S.E.2d 645, 649 (2008) (Conclusions of law of the Workers’ Compensation Board of Review "are subjected to de novo inspection."); Dodson v. Workers’ Compensation Division , 210 W.Va. 636, 641, 558 S.E.2d 635, 640 (2001) (This Court applies a de novo standard of review to questions of law arising in the context of Workers’ Compensation Appeal Board decisions.); Rhodes v. Workers’ Compensation Division , 209 W.Va. 8, 12, 543 S.E.2d 289, 293 (2000) (This Court reviews de novo questions of law decided by the Workers’ Compensation Appeal Board.); Syllabus Point 4, Emmel v. State Compensation Director , 150 W.Va. 277, 145 S.E.2d 29 (1965) ("An order of the workmens’ compensation appeal board, approving an order of the state compensation commissioner, will be reversed by this Court on appeal, where the legal conclusions of the appeal board are erroneous.").


The parties’ arguments require this Court to examine several workers’ compensation statutes. Before we set forth those statutes, we roughly define the parties’ arguments. The employer argues that West Virginia’s workers’ compensation law is clear: a claimant is limited to a maximum of 104 weeks of temporary total disability benefits for a single injury. There are no exceptions to this statutory maximum limit. Hence, any benefits paid to the claimant in excess of this limit should automatically be considered an overpayment. The employer therefore asserts that the claims examiner in this case was statutorily entitled to declare an overpayment of temporary total disability benefits, and was entitled to recover that overpayment from future benefit awards to the claimant.

The claimant, however, argues that West Virginia’s workers’ compensation statutes expressly limit a claims examiner’s ability to declare an overpayment of temporary total disability benefits. Under the law, a claimant who is totally but temporarily disabled by a work injury is presumptively entitled to temporary total disability benefits. The employer must pay the claimant these benefits. An overpayment exists only where the claims examiner (or other representative of the employer) tries to modify or terminate those benefits but, due to litigation, is required to continue paying until the employer’s representative receives a favorable ruling in the adversarial process. The claimant asserts that only then may the claims examiner recover an "overpayment," and then only the amounts paid between the date of the attempted modification or termination and the ruling that the claimant was not entitled to the temporary total disability benefits.

The claimant argues that, in this case, the claims examiner never objected to or sought to modify or terminate the claimant’s overall receipt of temporary total disability benefits. The claims examiner also did nothing to order the termination of the benefits at the end of 104 weeks. Instead, despite having a duty to monitor the claim, the claims examiner negligently authorized and paid an extra 156 days of benefits beyond the statutory maximum limit and then, months later, arbitrarily declared those benefits an overpayment. The claimant contends he is blameless for the claims...

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    ...the legislative intent will not be interpreted by the courts but will be given full force and effect." Syl. Pt. 3, Reed v. Exel Logistics, Inc., 240 W. Va. 700, 815 S.E.2d 511 (2018) (citation omitted). "It is a general rule that valuations for taxation purposes fixed by an assessing office......

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