Rhodes v. WORKERS'COMPENSATION DIV., No. 27831.

CourtSupreme Court of West Virginia
Writing for the CourtDAVIS, Justice
Citation543 S.E.2d 289,209 W.Va. 8
PartiesRobert S. RHODES, Appellant, v. WORKERS' COMPENSATION DIVISION and Anchor Glass Container, Appellees.
Docket NumberNo. 27831.
Decision Date11 December 2000

543 S.E.2d 289
209 W.Va.
8

Robert S. RHODES, Appellant,
v.
WORKERS' COMPENSATION DIVISION and Anchor Glass Container, Appellees

No. 27831.

Supreme Court of Appeals of West Virginia.

Submitted October 4, 2000.

Decided December 11, 2000.

Concurring Opinion of Justice Scott January 24, 2001.

Dissenting Opinion of Justice Starcher January 16, 2001.


543 S.E.2d 290
Robert L. Stultz, Wilson & Bailey, Weston, for the Appellant

Nancy Tyler, Employment Programs Litigation Unit, Charleston, for the Appellee.

DAVIS, Justice:

In this appeal from a decision of the Workers' Compensation Appeal Board, a Workers' Compensation claimant argues that his claim for benefits for occupational pneumoconiosis was improperly denied. We find that when a

543 S.E.2d 291
party objects to the findings and conclusion of the Occupational Pneumoconiosis Board, made in connection with a Workers' Compensation claim for occupational pneumoconiosis benefits, and submits new medical evidence in connection with the objection, W. Va.Code § 23-4-8c(d) (1993) (Repl.Vol.1998) requires the objecting party to bear the burden of questioning the Occupational Pneumoconiosis Board regarding the new medical evidence at the hearing therein required. Because this procedure was not clearly established prior to this opinion, we reverse this case and remand for additional proceedings

I.

FACTUAL AND PROCEDURAL HISTORY

Robert S. Rhodes (hereinafter "Mr. Rhodes"), claimant below and appellant herein, was employed by Anchor Glass Container (hereinafter "Anchor") in Keyser, West Virginia, for approximately twenty-two years, ending in October 1995, when the plant closed.1 On April 29, 1998, Dr. Carl Liebig diagnosed Mr. Rhodes with occupational pneumoconiosis (hereinafter "OP"). Consequently, based upon Dr. Liebig's diagnosis and Mr. Rhodes' history of workplace dust exposure, Mr. Rhodes filed a Workers' Compensation claim for OP benefits. On July 30, 1998, the Workers' Compensation Division (hereinafter "the Division") issued a non-medical "Claim Decision" stating that Mr. Rhodes was entitled to the presumption that "any chronic respiratory disability resulted from [his] employment."2 Mr. Rhodes was then evaluated by the Occupational Pneumoconiosis Board (hereinafter "OP Board") on September 24, 1998. The OP Board's evaluation included a patient history, a physical examination, pulmonary function studies and an X-ray of the chest. In its report disclosing its findings, the OP Board noted that Mr. Rhodes had been exposed to a dust hazard for approximately twenty-two years as a glass plant worker. In addition, the Board stated:

Physical examination shows the claimant to be in fair general clinical condition. He is not in any respiratory distress at rest. Chest cage is well formed. There are harsh breath sounds. There are no rales. There is mild wheezing present bilaterally. Heart sounds are of good quality with no murmurs.
....
X-RAY INTERPRETATION: CHEST PA views of the chest are within normal limits in their appearance with NO EVIDENCE of occupational pneumoconiosis identified.

As a result of its evaluation, the OP Board made no diagnosis of OP.

Based upon the OP Board's failure to diagnose OP, the Division, by order dated December 3, 1998, notified Mr. Rhodes that no award of benefits was being granted. Thereafter, on January 28, 1999, Dr. Ray A. Harron interpreted the OP Board's X-ray on behalf of Mr. Rhodes. Dr. Harron indicated that the X-ray quality was grade one. His report also stated that the X-ray revealed parenchymal abnormalities consistent with pneumoconiosis, but no pleural abnormalities consistent with pneumoconiosis. Dr. Edward Aycoth also read the OP Board's X-ray on behalf of Mr. Rhodes and reported the film quality as grade one. Dr. Aycoth's report further stated:

The heart, mediastinum, bony thorax, costophrenic angles and hemidiaphragms are within normal limits.
543 S.E.2d 292
There are scattered rounded density opacities measuring up to 3 mm. in diameter throughout both lungs. The lungs are well aerated and free of active disease.
IMPRESSION:
Pneumoconiosis category 1/0, p/q.

Mr. Rhodes protested the Division's order granting no award of benefits for OP, and the case was submitted to the Workers' Compensation Office of Judges (hereinafter "OOJ") for review. In support of his protest, Mr. Rhodes submitted the reports of Drs. Harron and Aycoth. A hearing for the purpose of adducing the testimony of members of the OP Board was then held on August 11, 1999. The two page transcript from this hearing indicates that counsel for Mr. Rhodes was the only attorney making an appearance. No one appeared for the employer or on behalf of the Division. Counsel for Mr. Rhodes failed to question any member of the OP Board. In a total of four lines of transcript, the record simply notes the style of the case and the claim number, and states that "[t]he Claim will be submitted." Thereafter, by order dated October 8, 1999, the OOJ announced its decision affirming the Commission's order denying benefits to Mr. Rhodes. The order stated in part:

The record evidence supports the Division's Order granting the claimant no award for occupational pneumoconiosis. The Board examined the claimant on September 24, 1998, and found that the chest x-ray was within normal limits. This report is reliable and credible and supports the Division's Order. The claimant has failed to show that the findings of the Board are clearly wrong.
The claimant submitted the x-ray report of Dr. Edward Aycoth who reviewed the x-rays taken by the Board and opined that the claimant suffered from minimal pneumoconiosis. However, this report was not submitted to the Board for review and comment as required in the procedures for occupational pneumoconiosis cases. See 85 CSR [1,] § 20 et seq. At the final hearing scheduled for this matter on August 11, 1999, the claim was submitted on the existing record. Members of the Board were not requested to review the evidence submitted by the claimant and discuss the reliability and credibility of Dr. Aycoth's report. This procedure should not be circumvented. Accordingly, the Division's Order is affirmed.

Mr. Rhodes then appealed his case to the Workers' Compensation Appeal Board (hereinafter "WCAB"), seeking a statutory five percent permanent partial disability award for OP without impairment pursuant to W. Va.Code §§ 23-4-8c(b) (1993) (Repl.Vol. 1998)3 and 23-4-6a (1995) (Repl.Vol.1998).4 By order dated April 27, 2000, the WCAB affirmed the order of the OOJ, and incorporated the same, by reference, as its own findings of fact and conclusions of law. The WCAB also indicated that its decision was based upon its conclusion that "the Occupational Pneumoconiosis Board has specifically found that it `cannot make a diagnosis of occupational pneumoconiosis.' (Emphasis added.) We firmly believe that this finding is sufficient to rebut the non-conclusive presumption found in West Virginia Code § 23-4-8c(b), and justifies the Division's refusal of a 5% statutory award." Finally, the WCAB explained:

West Virginia Code § 23-4-6a mandates that "the office of judges shall affirm the decision of the Occupational Pneumoconiosis Board made following hearing unless the decision is clearly wrong in view of the reliable, probative and substantial evidence on the whole record." We find nothing in the evidence to show that the Occupational Pneumoconiosis Board was clearly wrong. To the contrary, we find that the record as a whole, even without the statutory mandate of West Virginia Code § 23-4-6a, overwhelmingly, on strong and reliable evidence,
543 S.E.2d 293
supports the conclusion that the claimant is not entitled to a presumptive 5% statutory award. Given the deference which we are required by statute, and decisions of the West Virginia Supreme Court of Appeals, to give to the findings of the Occupational Pneumoconiosis Board and the Administrative Law Judge, we would be committing gross error to find otherwise.

It is from this April 27, 2000, order of the WCAB that Mr. Rhodes now appeals.

II.

STANDARD OF REVIEW

This appeal primarily involves questions of law. We have previously explained that we review de novo questions of law decided by the WCAB.

As we said in Barnett v. State Workmen's Compensation Com'r., 153 W.Va. 796, 812, 172 S.E.2d 698, 707 (1970), "[w]hile the findings of fact of the [WCAB] 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." Conclusions of law are subject to de novo scrutiny. Syl. pt. 3, Adkins v. Gatson, 192 W.Va. 561, 453 S.E.2d 395 (1994); Syl. pt. 1, Randolph County Board of Education v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989). 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. Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995); Syl. pt. 1, University of West Virginia Bd. of Trustees on Behalf of West Virginia University v. Fox, 197 W.Va. 91, 475 S.E.2d 91 (1996).

Conley v. Workers' Comp. Div., 199 W.Va. 196, 199, 483 S.E.2d 542, 545 (1997). To the extent that our decision in this case requires us to consider factual findings made by the WCAB, we will not reverse absent a finding that the WCAB's decision is plainly wrong.

"`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.' Syl. pt. 2, Jordan v. State Workmen's Compensation Commissioner, 156 W.Va. 159, 191 S.E.2d 497 (1972), quoting, Syllabus, Dunlap v. State Workmen's Compensation Commissioner, 152 W.Va. 359, 163 S.E.2d 605 (1968)." Syllabus, Rushman v. Lewis, 173 W.Va. 149, 313 S.E.2d 426 (1984).

Syl. pt. 1, Conley. We have also explained that

[T]he plainly wrong standard of
...

To continue reading

Request your trial
6 practice notes
  • Fenton Art v. W.Va. Office of Ins. Com'R, No. 33673.
    • United States
    • Supreme Court of West Virginia
    • June 26, 2008
    ...Transportation Systems, Inc. v. Vieweg, 207 W.Va. 90, 529 S.E.2d 110 (2000)." Syllabus point 1, Rhodes v. Workers' Compensation Division, 209 W.Va. 8, 543 S.E.2d 289 5. "`Statutes which relate to the same subject matter should be read and applied together so that the Legislature's intention......
  • Lambert v. WORKERS'COMPENSATION DIV., No. 30041-30043.
    • United States
    • Supreme Court of West Virginia
    • April 26, 2002
    ...S.E.2d 605 (1968).' Syllabus, Rushman v. Lewis, 173 W.Va. 149, 313 S.E.2d 426 (1984)." Syl. pt. 1, Conley. Rhodes v. Workers' Comp. Div., 209 W.Va. 8, 12, 543 S.E.2d 289, 293 (2000). We have also explained [T]he plainly wrong standard of review is a deferential one, which presumes an admini......
  • Charter Communications v. COMMUNITY ANTENNA, No. 30021.
    • United States
    • Supreme Court of West Virginia
    • February 22, 2002
    ...point 2, Expedited Transportation Systems, Inc. v. Vieweg, 207 W.Va. 90, 529 S.E.2d 110 (2000). Syl. pt. 1, Rhodes v. Workers' Comp. Div., 209 W.Va. 8, 543 S.E.2d 289 The Legislature has expressly stated its intent with respect to the Act: The Legislature finds and declares as follows: (a) ......
  • Longwell v. BOE OF COUNTY OF MARSHALL, No. 30987.
    • United States
    • Supreme Court of West Virginia
    • May 6, 2003
    ...point 2, Expedited Transportation Systems, Inc. v. Vieweg, 207 W.Va. 90, 529 S.E.2d 110 (2000). Syl. pt. 1, Rhodes v. Workers' Comp. Div., 209 W.Va. 8, 543 S.E.2d 289 (2000). In accordance with the foregoing analysis, we hold that when a county board of education is in need of legal service......
  • Request a trial to view additional results
6 cases
  • Fenton Art v. W.Va. Office of Ins. Com'R, No. 33673.
    • United States
    • Supreme Court of West Virginia
    • June 26, 2008
    ...Transportation Systems, Inc. v. Vieweg, 207 W.Va. 90, 529 S.E.2d 110 (2000)." Syllabus point 1, Rhodes v. Workers' Compensation Division, 209 W.Va. 8, 543 S.E.2d 289 5. "`Statutes which relate to the same subject matter should be read and applied together so that the Legislature's intention......
  • Lambert v. WORKERS'COMPENSATION DIV., No. 30041-30043.
    • United States
    • Supreme Court of West Virginia
    • April 26, 2002
    ...S.E.2d 605 (1968).' Syllabus, Rushman v. Lewis, 173 W.Va. 149, 313 S.E.2d 426 (1984)." Syl. pt. 1, Conley. Rhodes v. Workers' Comp. Div., 209 W.Va. 8, 12, 543 S.E.2d 289, 293 (2000). We have also explained [T]he plainly wrong standard of review is a deferential one, which presumes an admini......
  • Charter Communications v. COMMUNITY ANTENNA, No. 30021.
    • United States
    • Supreme Court of West Virginia
    • February 22, 2002
    ...point 2, Expedited Transportation Systems, Inc. v. Vieweg, 207 W.Va. 90, 529 S.E.2d 110 (2000). Syl. pt. 1, Rhodes v. Workers' Comp. Div., 209 W.Va. 8, 543 S.E.2d 289 The Legislature has expressly stated its intent with respect to the Act: The Legislature finds and declares as follows: (a) ......
  • Longwell v. BOE OF COUNTY OF MARSHALL, No. 30987.
    • United States
    • Supreme Court of West Virginia
    • May 6, 2003
    ...point 2, Expedited Transportation Systems, Inc. v. Vieweg, 207 W.Va. 90, 529 S.E.2d 110 (2000). Syl. pt. 1, Rhodes v. Workers' Comp. Div., 209 W.Va. 8, 543 S.E.2d 289 (2000). In accordance with the foregoing analysis, we hold that when a county board of education is in need of legal service......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT