Simpson v. Wv. Office of Ins. Com'R

• Citation: 678 S.E.2d 1
• Decision Date: 30 April 2009
• Docket Number: No. 34368.,34368.
• Parties: Thomas D. SIMPSON, Appellant, v. WEST VIRGINIA OFFICE OF the INSURANCE COMMISSIONER, and Independence Coal Company, Inc., Appellees.
• Court: Supreme Court of West Virginia

678 S.E.2d 1

Thomas D. SIMPSON, Appellant, v. WEST VIRGINIA OFFICE OF the INSURANCE COMMISSIONER, and Independence Coal Company, Inc., Appellees.

No. 34368.

Supreme Court of Appeals of West Virginia.

Submitted April 8, 2009.

Decided April 30, 2009.

Syllabus by the Court

1. "The constitutionality of a statute is a question of law which this Court reviews de novo." Syllabus point 1, State v. Rutherford, 223 W.Va. 1, 672 S.E.2d 137 (2008).

2. "A constitutional issue that was not properly preserved at the trial court level may, in the discretion of this Court, be addressed on appeal when the constitutional issue is the controlling issue in the resolution of the case." Syllabus point 2, Louk v. Cormier, 218 W.Va. 81, 622 S.E.2d 788 (2005).

3. "Article V, section 1 of the Constitution of West Virginia which prohibits any one department of our state government from exercising the powers of the others, is not merely a suggestion; it is part of the fundamental law of our State and, as such, it must be strictly construed and closely followed." Syllabus point 1, State ex rel. Barker v. Manchin, 167 W.Va. 155, 279 S.E.2d 622 (1981).

4. "The delegation by the legislature of broad discretionary powers to an administrative body, accompanied by fitting standards for their exercise, is not of itself unconstitutional." Syllabus point 1, State ex rel. West Virginia Housing Development Fund v. Copenhaver, 153 W.Va. 636, 171 S.E.2d 545 (1969).

5. "Legislative power may be constitutionally delegated to an administrative agency to promulgate rules and regulations necessary and proper for the enforcement of a statute. W. Va. Const. art. VI, s 1; art. V, s 1." Syl. pt. 3, State ex rel. Callaghan v. West Virginia Civil Service Commission, 166 W.Va. 117, 273 S.E.2d 72 (1980).

6. "It is fundamental law that the Legislature may delegate to an administrative agency the power to make rules and regulations to implement the statute under which the agency functions. In exercising that power, however, an administrative agency may not issue a regulation which is inconsistent with, or which alters or limits its statutory authority." Syllabus point 3, Rowe v. West Virginia Department of Corrections, 170 W.Va. 230, 292 S.E.2d 650 (1982).

7. "Any rules or regulations drafted by an agency must faithfully reflect the intention of the Legislature, as expressed in the controlling legislation. Where a statute contains clear and unambiguous language, an agency's rules or regulations must give that language the same clear and unambiguous force and effect that the language commands in the statute." Syllabus point 4, Maikotter v. University of West Virginia Board of Trustees/West Virginia University, 206 W.Va. 691, 527 S.E.2d 802 (1999).

8. "A rule promulgated by the Workers' Compensation Division that mandates the use of a nonlegislatively created guide for the examination of certain injuries is valid only to the extent that the mandated guide does not conflict with the specific dictates of the Legislature as expressed by statute. Those aspects of the mandated guide that are in conflict are invalid." Syllabus point 8, Repass v. Workers' Compensation Division, 212 W.Va. 86, 569 S.E.2d 162 (2002).

9. "The right to workmen's compensation benefits is wholly statutory." Syllabus point 2, in part, Dunlap v. State Compensation Director, 149 W.Va. 266, 140 S.E.2d 448 (1965).

10. W. Va.Code § 23-4-3b(b) (2005) (Repl. Vol. 2005), which directs the Workers' Compensation Board of Managers to "promulgate a rule establishing the process for the medical management of claims and awards of disability," is constitutional and does not violate the separation of powers.

11. "Procedures and rules properly promulgated by an administrative agency with authority to enforce a law will be upheld so long as they are reasonable and do not enlarge, amend or repeal substantive rights created by statute." Syllabus point 4, State ex rel. Callaghan v. West Virginia Civil Service Commission, 166 W.Va. 117, 273 S.E.2d 72 (1980).

12. "In reviewing a rule or regulation of an administrative agency, a West Virginia court must first decide whether the rule is interpretive or legislative. If it is interpretive, a reviewing court is to give it only the deference it commands. If it is a legislative rule, the court first must determine its validity. Assuming its validity, the two-pronged analysis from Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), should be applied." Syllabus point 2, Appalachian Power Co. v. State Tax Department of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995).

13. A legislative rule is valid if (1) it is submitted to the legislative rule-making review committee for approval, as required by W. Va.Code § 29A-3-9, et seq., or (2) the Legislature expressly exempts it from such legislative rule-making review and approval pursuant to W. Va.Code § 29A-1-3(d) (1990) (Repl. Vol. 2002).

14. "Judicial review of an agency's legislative rule and the construction of a statute that it administers involves two separate but interrelated questions, only the second of which furnishes an occasion for deference. In deciding whether an administrative agency's position should be sustained, a reviewing court applies the standards set out by the United States Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The court first must ask whether the Legislature has directly spoken to the precise question at issue. If the intention of the Legislature is clear, that is the end of the matter, and the agency's position only can be upheld if it conforms to the Legislature's intent. No deference is due the agency's interpretation at this stage." Syllabus point 3, Appalachian Power Co. v. State Tax Department of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995).

15. "`"Rules and Regulations of ... [an agency] must faithfully reflect the intention of the legislature; when there is clear and unambiguous language in a statute, that language must be given the same clear and unambiguous force and effect in the [agency's] Rules and Regulations that it has in the statute." Syl. pt. 4, Ranger Fuel Corp. v. West Virginia Human Rights Commission, 180 W.Va. 260, 376 S.E.2d 154 (1988).' Syl. pt. 2, in part, Chico Dairy Company v. Human Rights Commission, 181 W.Va. 238, 382 S.E.2d 75 (1989)." Syllabus point 5, Appalachian Power Co. v. State Tax Department of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995).

16. W. Va.C.S.R. Table § 85-20-C (2004) is valid and is a proper exercise of the rule-making authority delegated to the Workers' Compensation Board of Managers by the Legislature in W. Va.Code § 23-4-3b(b) (2005) (Repl. Vol. 2005).

Gregory S. Prudich, Sanders, Austin, Flanigan & Aboulhosn, Princeton, WV, for Appellant.

Daniel G. Murdock, Associate Counsel, Offices of the Insurance Commissioner, Charleston, WV, for Appellee, West Virginia Office of the Insurance Commissioner.

Sean Harter, Charleston, WV, for Appellee, Independence Coal Company, Inc.

DAVIS, Justice:

The appellant herein, Thomas D. Simpson [hereinafter "Mr. Simpson"], appeals from an order entered January 23, 2007, by the Workers' Compensation Board of Review [hereinafter "the Board"]. By that order, the Board affirmed prior orders entered by the Workers' Compensation Commission [hereinafter "Commission"], which awarded Mr. Simpson a 13% permanent partial disability award [hereinafter "PPD"], and the Workers' Compensation Office of Judges [hereinafter "OOJ"], which upheld that award. Mr. Simpson argued below that he was entitled to a higher impairment rating and should have been awarded an additional percentage of PPD benefits. On appeal to this Court, Mr. Simpson contends that the Board erred by upholding his award of benefits calculated in accordance with W. Va. C.S.R. Table § 85-20-C (2004)¹ because, he claims, this Rule is unconstitutional because it violates the separation of powers doctrine. Upon a review of the parties' arguments, the record submitted for appellate consideration, and the pertinent authorities, we affirm the Board's order finding Mr. Simpson to be entitled to a 13% PPD award.

I. FACTUAL AND PROCEDURAL HISTORY

Before recounting the factual history of Mr. Simpson's work-related injury, a review of the relevant procedural history will assist in understanding the context of Mr. Simpson's arguments on appeal to this Court.

A. Procedural History

The procedural history of this case begins in 2002 with this Court's prior decision in Repass v. Workers' Compensation Division, 212 W.Va. 86, 569 S.E.2d 162 (2002). In Repass, this Court rejected the use of the Diagnosis-Related Estimate Model for the evaluation of spine injury claims as invalid and unreliable. Specifically, we held, in Syllabus point 9 of Repass, that,

[b]ecause the Diagnosis-Related Estimate Model for the examination of spine injury claims, as set forth in The American Medical Association's, Guides to the Evaluation of Permanent Impairment, Fourth Edition (1993), cannot be reconciled with several specific workers compensation statutes promulgated by the West Virginia Legislature, any medical examination conducted in accordance with that model is invalid and unreliable.

212 W.Va. 86, 569 S.E.2d 162.

In response to this Court's decision in Repass, the Legislature amended W. Va. Code § 23-4-3b in 2003 to add subsection (b). See W. Va.Code § 23-4-3b(b) (2003) (Spec. Supp. Aug. 2003). W. Va.Code § 23-4-3b(b) (2005)² (Repl. Vol. 2005) directs:

In addition to the requirements of subsection (a) of this section, on or before the thirty-first day of December, two thousand three, the board of managers shall promulgate a rule establishing the process for the medical management of claims and awards of disability which includes, but is not limited to, reasonable and standardized guidelines and...