Repass v. WORKERS'COMPENSATION DIV.

• Decision Date: 28 June 2002
• Docket Number: No. 27730, No. 28392.
• Citation: 212 W.Va. 86,569 S.E.2d 162
• Parties: William Wayne REPASS, Appellant, v. WORKERS' COMPENSATION DIVISION and USX Corporation/U.S. Steel Mining Company, Inc. Appellees. and Randall Z. Bower, Appellant, v. Workers' Compensation Division and Maple Meadow Mining Company, Appellees.
• Court: West Virginia Supreme Court

569 S.E.2d 162

212 W.Va. 86

William Wayne REPASS, Appellant, v. WORKERS' COMPENSATION DIVISION and USX Corporation/U.S. Steel Mining Company, Inc. Appellees. and Randall Z. Bower, Appellant, v. Workers' Compensation Division and Maple Meadow Mining Company, Appellees.

Nos. 27730, 28392.

Supreme Court of Appeals of West Virginia.

Submitted February 19, 2002.

Decided June 28, 2002.

Dissenting Opinion of Chief Justice Davis July 17, 2002.

S.F. Raymond Smith, Esq., Rundle & Rundle, Pineville, for Appellant Repass.

Don M. Stacy, Esq., Reginald D. Henry, Esq., Beckley, for Appellant Bower.

Darrell V. McGraw, Jr., Attorney General, Sandra Keech, Assistant Attorney General, Charleston, for Appellee Workers' Compensation Division.

Howard G. Salisbury, Esq., Kay, Casto & Chaney, PLLC, Charleston, for Appellee USX Corporation/U. S. Steel Mining Company.

John W. Woods, III, Esq., Tracy L. Webb, Esq., Bowles Rice McDavid Graff & Love, Charleston, for Appellee Maple Meadow Mining Company.

Timothy J. Huffman, Esq., John L. McClaugherty, Esq., Jackson & Kelly, Charleston, for Amicus Curiae West Virginia Chamber of Commerce.

Sue Anne Howard, Esq., Wheeling, for Amici Curiae West Virginia Trial Lawyers Association and West Virginia AFL-CIO.

William D. Turner, Esq., Crandall, Pyles, Haviland & Turner, LLP, Lewisburg, for Amicus Curiae West Virginia Trial Lawyers Association.

Thomas P. Maroney, Esquire, Charleston, for Amicus Curiae West Virginia AFL-CIO. McGRAW, Justice.

Two workers' compensation claimants who suffered back injuries disagreed with the initial disability ratings granted them by the Workers' Compensation Division and appealed. In each case, the Office of Judges found that examinations conducted under one examination model were unreliable, and granted the claimants higher disability ratings. The employer in each case appealed, and the Workers' Compensation Appeal Board found the questioned method of examination to be valid, and reinstated the original awards granted by the Workers' Compensation Division. The claimants appeal, arguing that the Office of Judges was correct in disregarding the questioned examination model because it is in conflict with our law. Because we concur with the logic of the Office of Judges, we reverse.

I.

BACKGROUND

Today we examine two cases, which we consolidated because they concern the same questions of law. Both cases concern the use of a particular diagnostic method, or "model," for the evaluation of injuries to the spine. One method, the Range of Motion Model, or ROM, measures, as the name implies, the patient's range of motion across several specific movements. The doctor then compares these ranges against presumed normal ranges for uninjured individuals. Doctors using the other method, the Diagnostic-Related Estimate Model, or DRE, examine a patient's injury or symptoms and then assign the patient to one of eight categories, or "pigeon holes," based on those particular symptoms.

Both models are found in the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition (1993). Rules promulgated by the Workers' Compensation Commissioner command doctors to conduct their examinations and prepare their reports in accordance with this publication when examining patients for permanent partial disability.¹ The two models often produce very different impairment ratings, with the DRE usually producing a lower percentage of impairment, and the ROM producing a higher percentage of impairment; each model has its supports and detractors. However, the fourth edition of the Guides demands that the DRE Model be used in most circumstances unless a doctor can show some special reason why that model should not be used.

Because of concerns about the DRE Model, discussed at greater length infra, the Workers' Compensation Office of Judges deemed DRE-based examinations "unreliable" in late 1997. However, the Workers' Compensation Appeal Board continued to accept DRE-based examinations. The two appellants in this case both received lower ratings under the DRE Model and higher ratings under the ROM Model. Each appealed a decision of the Workers' Compensation Division to the Office of Judges, where each prevailed. Then, each of them had that favorable decision reversed by the Workers' Compensation Appeal Board, and subsequently appealed that adverse decision to this Court. For the reasons set forth below, we find that examinations performed under the DRE are invalid and unreliable, and reverse the decisions of the Appeal Board.

A.

Repass v. WCD and U.S. Steel Mining Co., Inc.

William R. Repass suffered an injury to his lower back on June 29, 1992 while working for his employer, U.S. Steel Mining Company. Mr. Repass filed a claim, and some time later the West Virginia Workers' Compensation Division (the "Division") referred Mr. Repass to a Dr. Landis for an evaluation to determine his degree of permanent partial disability, if any. During an examination based upon the DRE Model conducted on October 30, 1996, Dr. Landis found evidence of a healed fracture of one of Mr. Repass' lumbar vertebrae, and a full range of motion of the lumbar spine. Dr. Landis concluded that Mr. Repass had reached maximum medical improvement, and that he suffered a 5 percent impairment as result of the June 29, 1992 injury. Upon receipt of Dr. Landis' evaluation, the Division awarded Mr. Repass an award for a 5 percent permanent partial disability.

Mr. Repass protested the Division's award and submitted an evaluation report conducted by a Dr. Carlson on August 1, 1997. Dr. Carlson examined Mr. Repass using the ROM Model and concluded that Mr. Repass suffered a 9 percent impairment, specifically, 5 percent for the fracture and 4 percent for limitation of flexion in his back. Thereafter, Mr. Repass' employer, U.S. Steel Mining Company, had yet another doctor examine Mr. Repass. Dr. Paul Bachwitt examined Mr. Repass on October 14, 1997, and his report referenced both the DRE and ROM methods, but apparently the doctor claimed that the ROM findings were not credible and that the ROM method should not be used. Under the DRE method, Dr. Bachwitt, in agreement with the report of Dr. Landis, found that Mr. Repass should be granted a 5 percent award.

The Workers' Compensation Office of Judges considered Mr. Repass' appeal and on March 11, 1998, issued a decision reversing the Division's prior award of 5 percent, and granting Mr. Repass a 9 percent award based on Dr. Carlson's findings. In reaching this conclusion, the administrative law judge referenced an earlier opinion of the Office of Judges, known as the Cottrell decision of August 1997,² in which the chief administrative law judge had determined that examinations conducted using the DRE were unreliable. U.S. Steel Mining Company appealed, and on September 30, 1998, the Workers' Compensation Appeal Board reversed and reinstated the initial 5 percent award for permanent partial disability granted by the Division. Mr. Repass now challenges the Appeal Board's final decision.

B.

Bower v. WCD and Maple Meadow Mining Company

Mr. Randall Z. Bower suffered two separate injuries to his back, one on October 3, 1994, and one about two years later on July 16, 1996. Also, while Mr. Bower was in the midst of his examinations for these injuries, the Office of Judges released the Cottrell decision and accompanying policy memorandum, which necessitated even more examinations. Accordingly, Mr. Bower's examination history is quite complicated, and the briefs actually contain a chart that sets forth the doctors who examined him and their corresponding findings.

No fewer than eight doctors examined Mr. Bower between January 1996 and December 1998, using either the DRE Model, the ROM Model, or both, and giving him impairment ratings from 4 percent to 16 percent. By April 22, 1997, the Division had made awards for a total of 5 percent permanent partial disability. After the issuance of Cottrell and a flurry of additional examinations, the Office of Judges reversed the Division and granted Mr. Bower a disability rating of 16 percent. The Office of Judges apparently disregarded any examination based upon the DRE and applied the liberality rule, basing the award upon the highest impairment rating found under the ROM Model. The employer appealed, and on June 29, 2000, the Appeal Board reversed and reinstated the earlier award by the Division of a 5 percent permanent partial disability. Mr. Bower now asks this Court to reverse the Appeal Board's June 29, 2000 decision.

II.

STANDARD OF REVIEW

If considering a question of fact, "[i]n most cases we show substantial deference to the factual findings of the Workers' Compensation Appeal Board." Plummer v. Workers' Compensation Division, 209 W.Va. 710, 712, 551 S.E.2d 46, 48 (2001). However, when considering a question of law, as we are in the instant matter, our standard differs: "[w]hile the findings of fact of the appeal board are conclusive unless they are manifestly against the weight of the evidence, the legal conclusions of the appeal board, based upon such findings, are subject to review by the courts." Barnett v. State Workmen's Compensation Com'r., 153 W.Va. 796, 812, 172 S.E.2d 698, 707 (1970) (quoting Emmel v. State Compensation Director, 150 W.Va. 277, 145 S.E.2d 29 (1965)). We must also bear in mind that: "When the Workers' Compensation Appeal Board reviews a ruling from the Workers' Compensation Office of Judges it must do so under the standard of review set out in W. Va.Code § 23-5-12(b) (1995), and failure to do so will be reversible error." Syl. pt. 6, Conley v. Workers' Compensation Div., 199 W.Va. 196, 483 S.E.2d 542 (1997). That Code section provides that the Appeal Board may only reverse the Office of Judges when the judge's findings are in violation of statute, in excess of the judge's statutory authority, made upon unlawful procedure, or affected by some error of law. The Appeal...