State ex rel. ACF Industries v. Vieweg

• Decision Date: 05 February 1999
• Docket Number: No. 25142.,25142.
• Citation: 514 S.E.2d 176,204 W.Va. 525
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. ACF INDUSTRIES, INC.; Wheeling-Pittsburgh Steel Corporation; Elkay Mining Company; and Consolidation Coal Company, Petitioners, v. William F. VIEWEG, Commissioner, Workers' Compensation Division, Bureau of Employment Programs; Danny J. Stover; and Melanie McGhee, Respondents.

514 S.E.2d 176

204 W.Va. 525

STATE of West Virginia ex rel. ACF INDUSTRIES, INC.; Wheeling-Pittsburgh Steel Corporation; Elkay Mining Company; and Consolidation Coal Company, Petitioners, v.William F. VIEWEG, Commissioner, Workers' Compensation Division, Bureau of Employment Programs; Danny J. Stover; and Melanie McGhee, Respondents.

No. 25142.

Supreme Court of Appeals of West Virginia.

Submitted September 8, 1998.

Decided February 5, 1999.

John L. McClaugherty, Timothy E. Huffman, Jackson & Kelly, Charleston, West Virginia, Attorneys for the Petitioners.

Darrell V. McGraw, Jr., Attorney General, Garrett L. Jacobs, Assistant Attorney General, Donald L. Hall, Senior Counsel, Workers' Compensation Division, Bureau of Employment Programs, Charleston, West Virginia, Attorneys for RespondentCommissioner Vieweg.

Don M. Stacy, Beckley, West Virginia, Attorney for Respondent Stover.

Sue Anne Howard, Wheeling, West Virginia, Attorney for Respondent McGhee.

Sarah E. Smith, Phyllis M. Potterfield, Tracy L. Webb, Bowles Rice McDavid Graff & Love, PLLC, Charleston, West Virginia, Attorney for Amicus Curiae, West Virginia Manufacturers Association.

W. Stuart Calwell, Jr., Calwell & McCormick, Charleston, West Virginia, Attorney for Amici Curiae, Affiliated Construction Trades Foundation and West Virginia Building and Construction Trades Council, AFCIO.

Thomas P. Maroney, Thomas P. Maroney, L.C., Charleston, West Virginia, Attorney for Amicus Curiae, West Virginia AFL-CIO.

Henry C. Bowen, Spilman Thomas & Battle, PLLC, Charleston, West Virginia, Attorney for Amicus Curiae, West Virginia Self-Insurers Association.DAVIS, Justice:

In this original jurisdiction proceeding, the petitioners herein, ACF Industries, Inc., Wheeling-Pittsburgh Steel Corporation, Elkay Mining Company, and Consolidation Coal Company[hereinafter "the petitioners" or "the petitioning employers"], seek a writ of mandamus to compel the respondent herein, William F. Vieweg, Commissioner of the Workers' Compensation Division of the Bureau of Employment Programs[hereinafter "the Commissioner"], to apply the 1995amendments to the West Virginia workers' compensation statutes to various workers' compensation claims filed by their employees who were injured in the course of and as a result of their employment before the pertinent statutory amendments became effective.Specifically, the petitioning employers request this Court to require the Commissioner to apply those statutory amendments which govern the eligibility criteria for and benefit amounts of permanent total disability [hereinafter "PTD"] awards, described in W. Va. Code § 23-4-6(b, d, n(1))(1995)(Repl.Vol. 1998), to their employees' claims for PTD benefits that were filed after the amendments' effective date.Based upon the applicable authorities and the deference we accord a governmental officer's interpretations of the laws he/she is charged with administering, we conclude that mandamus relief is not appropriate in this instance.Accordingly, we deny the writ of mandamus.

I.FACTUAL AND PROCEDURAL HISTORY

The salient facts of this case have their origins in the amendments to the West Virginia workers' compensation statutes introduced and enacted by the Legislature of this State in 1995.To better understand the impact of these legislative alterations in the law, however, it is first necessary to understand the context within which such amendments arose.Prior to 1995, an employee injured in the course of and as a result of his/her employment who was rendered permanently and totally disabled by his/her occupational injury, occupational disease, or a combination thereof could obtain a PTD award by demonstrating that he/she had "[a] disability which renders the injured employee unable to engage in substantial gainful activity requiring skills or abilities comparable to those of any gainful activity in which he or she has previously engaged with some regularity and over a substantial period of time ...."W. Va.Code § 23-4-6(n)(1994)(Repl.Vol.1994).¹See alsoW. Va.Code § 23-4-6(n)(1993)(Cum.Supp.1993)(same);W. Va.Code § 23-4-6(n)(1990)(Cum.Supp.1991)(same);W. Va.Code § 23-4-6(n)(1986)(Cum.Supp.1990)(same);W. Va.Code § 23-4-6(n)(1978)(Repl.Vol.1985)(same).Upon being granted a PTD award, the employee received workers' compensation disability benefits "during the remainder of [his/her] life,"W. Va.Code § 23-4-6(d)(1994)(Repl. Vol.1994), "computed on the basis of seventy percent of the average weekly wage earnings, wherever earned, of the injured employee, at the date of injury, not to exceed the [stated] percentage of the average weekly wage in West Virginia,"W. Va.Code § 23-4-6(b)(1994)(Repl.Vol.1994).See alsoW. Va.Code § 23-4-6(b, d)(1993)(Cum.Supp. 1993)(same);W. Va.Code § 23-4-6(b, d)(1990)(Cum.Supp.1991)(same);W. Va.Code § 23-4-6(b, d)(1986)(Cum.Supp.1990)(same);W. Va.Code § 23-4-6(b, d)(1978)(Repl.Vol.1985)(same).

On February 10, 1995, the West Virginia Legislature passed and enacted Committee Substitute for Senate Bill 250, which comprehensively revised numerous aspects of West Virginia workers' compensation law.²The purported goal of these sweeping reforms envisioned ameliorating the workers' compensation fund's fiscal crisis and restoring its financial integrity.SeeState ex rel. Blankenship v. Richardson,196 W.Va. 726, 729-31, 474 S.E.2d 906, 909-11(1996).Among the changes effectuated by the 1995legislation were substantial revisions to the criteria for determining a disabled employee's eligibility for PTD benefits and the method for calculating the monetary amount of such an award.³Specifically, the 1995amendments created a distinct minimum threshold level of medical impairment required to be present before an employee could request an award of PTD benefits."

Other than for those injuries specified in subdivision (m) of this section, in order to be eligible to apply for an award of permanent total disability benefits for all injuries incurred and all diseases, including occupational pneumoconiosis, with a date of last exposure on and after the second day of February, one thousand nine hundred ninety-five, and for all requests for such an award pending before the division on and after the second day of February, one thousand nine hundred ninety-five, a claimant must have been awarded the sum of fifty percent in prior permanent partial disability awards or have suffered an occupational injury or disease which results in a finding that the claimant has suffered a medical impairment of fifty percent.Upon filing such an application, the claim will be reevaluated by the examining board pursuant to subdivision (j) of this section to determine if he or she has suffered a whole body medical impairment of fifty percent or more resulting from, either a single, occupational injury or occupational disease or a combination of occupational injuries and occupational diseases....If the claimant has not suffered whole body medical impairment of at least fifty percent, then the request shall be denied.Upon a finding that the claimant does have a fifty percent whole body medical impairment, then the review of the application shall continue as provided for in the following paragraph of this subdivision....For the purposes of determining whether the claimant should be awarded permanent total disability benefits under the second injury provisions of subsection (d), section one [§ 23-3-1d [sic]], article three of this chapter, only a combination of occupational injuries and occupational diseases, including occupational pneumoconiosis, shall be considered.

W. Va.Code § 23-4-6(n)(1)(1995)(Repl.Vol. 1998)(emphasis added).⁴Cf.W. Va.Code § 23-4-6(n)(1994)(Repl.Vol.1994).In addition to establishing a much more detailed and medically exact method by which to determine an injured employee's eligibility to be considered for a PTD award, the 1995amendments relegated the prior standard for PTD determination to but one consideration among divers criteria.SeeW. Va.Code § 23-4-6(n)(2)(1995)(Repl.Vol.1998)("A disability which renders the injured employee unable to engage in substantial gainful activity requiring skills or abilities comparable to those of any gainful activity in which he or she has previously engaged with some regularity and over a substantial period of time shall be considered in determining the issue of total disability."(emphasis added)).

In addition to establishing a distinct threshold for the application and receipt of PTD benefits, the 1995amendments also altered the amount of compensation to be paid to a claimant who had been granted an award of PTD benefits.Contrary to the previous standard awarding a permanently and totally disabled individual lifetime benefits equal to seventy percent of his/her average weekly wages, the 1995amendments reduced the amount of a PTD award to sixty-six and two-thirds percent of the injured employee's average weekly wages and restricted the period during which he/she could receive such benefits, ending the period of PTD eligibility upon the employee's receipt of federal Social Security retirement benefits.

For all awards of permanent total disability benefits that are made on or after the second day of February, one thousand nine hundred ninety-five, including those claims in which a request for an award was pending before the division or which were in litigation but not yet submitted for a decision, then benefits shall be payable until the claimant attains the age necessary to receive federal old age retirement benefits under the provisions of the Social Security Act, 42 U.S.C. 401 and 402, in effect on the effective date of this section.Such a claimant shall be paid benefits so as not to exceed a maximum benefit of sixty-six and two-thirds percent of the claimant's average weekly wage earnings, wherever earned, at the time of the date of injury not to exceed [the stated]

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