Rhodes v. WORKERS'COMPENSATION DIV.
Decision Date | 11 December 2000 |
Docket Number | No. 27831.,27831. |
Citation | 543 S.E.2d 289,209 W.Va. 8 |
Parties | Robert S. RHODES, Appellant, v. WORKERS' COMPENSATION DIVISION and Anchor Glass Container, Appellees. |
Court | West Virginia Supreme Court |
Robert L. Stultz, Wilson & Bailey, Weston, for the Appellant.
Nancy Tyler, Employment Programs Litigation Unit, Charleston, for the Appellee.
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 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.
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:
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:
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:
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 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, 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.
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.
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