State ex rel. Blankenship v. Richardson, 23119

• Court: Supreme Court of West Virginia
• Citation: 474 S.E.2d 906,196 W.Va. 726
• Decision Date: 17 July 1996
• Docket Number: No. 23119,23119
• Parties: STATE of West Virginia ex rel. Vennie BLANKENSHIP, Gladys Hensley, Alvis E. Brewer, Carl R. Sigley, Charles McGlone, George R. Nolley, Leonard Mullins, Paul Casto, Dewey Maynard, Glen Adkins, Bacil Gilles, Charles Wolford, Forrest E. Jacobs, Donnie Null, Sr., William J. Ocheltree, Gerald Ullom, Robert Albaugh, Kathleen Lavender, Forrest L. Tennant, John F. Takach, Richard D. Walton and Michael Warden, Petitioners, v. Andrew N. RICHARDSON, Workers' Compensation Commissioner, Consolidation Coal Company, Cannelton Industries, and Island Creek Coal Company, Respondents.

Page 906

474 S.E.2d 906

196 W.Va. 726

STATE of West Virginia ex rel. Vennie BLANKENSHIP, Gladys

Hensley, Alvis E. Brewer, Carl R. Sigley, Charles McGlone,

George R. Nolley, Leonard Mullins, Paul Casto, Dewey

Maynard, Glen Adkins, Bacil Gilles, Charles Wolford, Forrest

E. Jacobs, Donnie Null, Sr., William J. Ocheltree, Gerald

Ullom, Robert Albaugh, Kathleen Lavender, Forrest L.

Tennant, John F. Takach, Richard D. Walton and Michael Warden, Petitioners, v. Andrew N. RICHARDSON, Workers' Compensation Commissioner,

Consolidation Coal Company, Cannelton Industries,

and Island Creek Coal Company, Respondents.

No. 23119.

Supreme Court of Appeals of West Virginia.

Submitted March 5, 1996.

Decided July 17, 1996.

Syllabus by the Court

1. " ' "In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. [ W.Va. Const. Art. V, § 1.] Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt." Syl. Pt. 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965).' Syl. Pt. 2, West Virginia Public Employees Retirement System v. Dodd, 183 W.Va. 544, 396 S.E.2d 725 (1990)." Syl. pt. 1, Lewis v. Canaan Valley Resorts, Inc., 185 W.Va. 684, 408 S.E.2d 634 (1991).

2. " 'Before this Court may properly issue a writ of mandamus three elements must coexist: (1) the existence of a clear right in the petitioner to the relief sought; (2) the existence of a legal duty on the part of the respondent to do the thing the petitioner seeks to compel; (3) the absence of another adequate remedy at law.' Syllabus Point 3, Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1981)." Syl. pt. 1, Meadows v. Lewis, 172 W.Va. 457, 307 S.E.2d 625 (1983).

3. " ' " 'Where economic rights are concerned, we look to see whether the classification is a rational one based on social, economic, historic or geographic factors, whether it bears a reasonable relationship to a proper governmental purpose, and whether all persons within the class are treated equally. Where such classification is rational and bears the requisite reasonable relationship, the statute does not violate Section 10 of Article III of the West Virginia Constitution, which is our equal protection clause.' Syllabus Point 7, [as modified,] Atchinson v. Erwin, W.Va. , 302 S.E.2d 78 (1983)." Syllabus Point 4, as modified, Hartsock-Flesher Candy Co. v. Wheeling Wholesale Grocery Co., 174 W.Va. 538, 328 S.E.2d 144 (1984).' Syl. Pt. 4, Gibson v. West Virginia Department of Highways, 185 W.Va. 214, 406 S.E.2d 440 (1991)." Syl. pt. 2, Lewis v. Canaan Valley Resorts, Inc., 185 W.Va. 684, 408 S.E.2d 634 (1991).

4. "A 'property interest' includes not only the traditional notions of real and personal property, but also extends to those benefits to which an individual may be deemed to have a legitimate claim of entitlement under existing rules or understandings." Syl. pt. 3, Waite v. Civil Service Commission, 161 W.Va. 154, 241 S.E.2d 164 (1977).

5. W.Va.Code, 23-4-6(n)(1) [1995], which provides that in order to be eligible to apply for an award of permanent total disability benefits, 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, does not violate W.Va. Const. Art. III, § 10, our equal protection clause.

6. Though a workers' compensation statute, or amendment thereto, may be construed to operate retroactively where mere procedure is involved, such a statute or amendment may not be so construed where, to do so, would impair a substantive right.

7. Where a workers' compensation claimant has been previously awarded permanent partial disability benefits that would have entitled the claimant to file for permanent total disability review, legislation that attempts to immediately preclude the claimant's substantive right to seek such review prior to the expiration of the ordinary ninety days provided in W.Va. Const. Art. VI, § 30, violates principles of fundamental fairness embodied in the due process provisions of W.Va. Const. Art. III, § 10.

Grant Crandall, Crandall, Pyles & Haviland, Charleston, Robert M. Bastress, Jr., Morgantown, Jeffrey V. Mehalic, Segal & Davis, Charleston, Thomas P. Maroney, J. Robert Weaver, Edwin H. Pancake, Charleston, for Petitioners.

Thomas V. Flaherty, Michele Grinberg, Jeffrey M. Wakefield, Andrew B. Cooke, Flaherty, Sensabaugh & Bonasso, Charleston, for Andrew N. Richardson.

John L. McClaugherty, Hoyt E. Glazer, Jackson & Kelly, Charleston, for Consolidation Coal Company, Cannelton Industries, and Island Creek Coal Company, Intervenors, and Amicus Curiae for the West Virginia Business and Industry Council.

Teresa C. Postle, Peter B. Chambers, Charleston, Amicus Curiae for the West Virginia Trial Lawyers Association.

McHUGH, Chief Justice.

Petitioners herein, twenty-two West Virginia workers' compensation claimants, invoke this Court's original jurisdiction pursuant to W.Va. Const. Art. VIII, § 3 and W.Va.Code, 51-1-3 [1923] and seek a writ of mandamus against respondent Andrew N. Richardson, Commissioner of the Division of Workers' Compensation, Bureau of Employment Programs ¹ (hereinafter "Commissioner"). Petitioners challenge the constitutionality of certain provisions of Enrolled Senate Bill 250 (hereinafter "S.B. 250"), which amended the West Virginia Workers' Compensation Act.

The haste with which this comprehensive legislation was enacted is revealed by the sequence of legislative events. S.B. 250 was introduced on February 2, 1995 and received final legislative approval eight days later, on February 10, 1995. The provisions of S.B. 250 became effective on date of passage, the legislature having voted to override the ninety-day waiting period between passage and date of effect. See W.Va. Const. Art. VI, § 30 ("[N]o act of the legislature ... shall take effect until the expiration of ninety days after its passage, unless the legislature shall by a vote of two thirds of the members elected to each house ... otherwise direct." Id., in part.) See also Perry v. Barker, 169 W.Va. 531, 533 n. 1, 289 S.E.2d 423, 425 n. 1 (1982) (The purpose of the ninety day period "is to provide a sufficient period of time to give notice to the public of the contents of the new law, and to provide government officials sufficient time to perform the duties contemplated by the law.")

I.

Prior to the introduction and enactment of S.B. 250, the Workers' Compensation Fund (hereinafter "the Fund") was commonly perceived to be in dire financial straits. See generally Emily A. Spieler, Assessing Fairness in Workers' Compensation Reform: A Commentary on the 1995 West Virginia Workers' Compensation Legislation, 98 W.Va.L.Rev. 23 (1995). Despite the general consensus that the fiscal integrity of the Fund was clearly threatened, there remains considerable debate as to what actually propelled the Fund to its precarious position.

Petitioners maintain that two primary developments in West Virginia contributed most significantly to the Fund's financial fragility. Petitioners first point to the decline in employment in certain industries, such as coal mining, which traditionally have high injury rates and high wages. Quoting Emily A. Spieler, Social Welfare Policy in the Context of Economic Restructuring: Lessons from the West Virginia Workers' Compensation Programme, 30 Urban Studies 351, 357- 58 (1993), petitioners maintain that " '[d]isplaced workers from these industries filed large numbers of claims for disabilities arising from their prior work. During critical years, the premium rates charged to those industries were far too low, resulting in inadequate revenue to the fund. With the decline in payroll in those industries, it is now impossible to fund the cost of those prior injuries with premiums collected from the same industry[.]' " Id.

The second development, according to petitioners, was that of " 'political manipulation of the [workers' compensation] programme, particularly an unjustifiable, and probably illegal, decision by the former Governor of West Virginia [Arch Moore] to reduce employers' premium rates below sound financial levels. Effective 1 July 1985, these rates were reduced by 30 percent for every industry, against the advice of the consulting actuarial expert[.]' " Id. ² As a result, petitioners argue, the Fund began losing money " 'on a cash basis, as well as an accrual basis; that is, the revenue collected each year not only failed to fund the future costs of injuries which occurred in that year, but actually was less than the money that was paid out in that year.' " Id. Finally, petitioners maintain that the Fund's past failure to aggressively collect workers' compensation premiums from employers who were in default also contributed to the Fund's financial crisis.

The Commissioner, on the other hand, maintains that the Fund's imminent insolvency is rooted primarily in the legislative and judicial liberalization of permanent total disability (PTD) eligibility, resulting in awards of PTD benefits to West Virginia claimants in numbers far higher than the national average. ³ Liberally conferring these awards, argues the Commissioner, also served as an incentive for claimants with slight medical impairments to apply for...