State ex rel. Davis v. Vieweg

• Decision Date: 28 January 2000
• Docket Number: No. 26845.,26845.
• Citation: 529 S.E.2d 103,206 W.Va. 83
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Robert DAVIS, Petitioner, v. William F. VIEWEG, Commissioner, Bureau of Employment Programs, Workers' Compensation Division and Wal-Mart Stores, Inc., Respondents.

529 S.E.2d 103

206 W.Va. 83

STATE of West Virginia ex rel. Robert DAVIS, Petitioner, v. William F. VIEWEG, Commissioner, Bureau of Employment Programs, Workers' Compensation Division and Wal-Mart Stores, Inc., Respondents.

No. 26845.

Supreme Court of Appeals of West Virginia.

Submitted January 11, 2000.

Decided January 28, 2000.

Kelly Elswick Hall, Howley & Venezia, Charleston, West Virginia, Attorney for Petitioner.

Frederick G. Staker, III, Assistant Attorney General, Employment Programs, Litigation Unit, Charleston, West Virginia, Attorney for Respondent Commissioner Vieweg.

Wendy D. Young, Carter & Young, Charleston, for Respondent Wal-Mart.

DAVIS, Justice:

Robert Davis sought a writ of mandamus to compel William Vieweg, Commissioner of the Workers' Compensation Division (hereinafter referred to as "Commissioner"), to issue protestable order rulings on three matters concerning Mr. Davis' Workers' Compensation claim.¹ Specifically, Mr. Davis sought to have the Commissioner rule upon his requests: first, to find his right ankle fracture compensable; second, for payment of medications; and finally, for pain management treatment. Because the Commissioner entered the requested rulings, the issue is technically moot and the writ dismissed. However, because this issue is of great public interest and capable of repetition, we file this opinion addressing the issue and awarding reasonable attorney's fees and costs to Mr. Davis.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mr. Davis filed a claim for Workers' Compensation benefits based upon injuries received on May 12, 1998 to his upper and lower back. By order dated June 8, 1998, the claim was ruled compensable and temporary total disabilities benefits were granted.

Three requests concerning Mr. Davis' Workers' Compensation claim were submitted to the Commissioner by either Mr. Davis or on his behalf. Mr. Davis' first request sought to add an ankle injury to the compensable injury. This request arose from a fractured right ankle that Mr. Davis sustained in a fall on July 12, 1998. The circumstances of Mr. Davis' fall are not specified in the record. However, Mr. Davis' treating physician, Heather Milioti, D.C., in a report dated July 13, 1998, opined that Mr. Davis' back injuries caused his fall and the resultant ankle fracture. By request submitted December 23, 1998, Mr. Davis sought to add his ankle injury as part of his compensable injury claim. Mr. Davis' second request, submitted September 3, 1998, sought payment for certain of his medications.² Finally, on January 22, 1999, J.K. Lilly, M.D ., Mr. Davis' physician, requested pain management treatment for Mr. Davis.³ Mr. Davis maintains that during 1999, he contacted the Commissioner several times seeking responses to his requests.

After waiting without a response for more than 10 months on his first and third requests and 14 months on his second request, on November 9, 1999, Mr. Davis sought a writ of mandamus from this Court to compel the Commissioner to rule. On November 18, 1999, we issued a rule to show cause returnable January 11, 2000. Attached to the Commissioner's response, filed on January 7, 2000, were the Commissioner's December 15, 1999 rulings on Mr. Davis' requests.⁴

The Commissioner conceded that the orders were entered on December 15, 1999, which is approximately 36 days after Mr. Davis' petition was filed with this Court. Because of the issuance of the protestable orders, the Commissioner seeks to have this case dismissed as moot. The Commissioner's response also noted that he "is willing to discuss ... payment of a reasonable attorney's fee, and reasonable costs" arising from this proceeding.

II. STANDARD OF REVIEW

As an initial matter, we review the standard for issuing a writ of mandamus. This Court has held that "[s]ince mandamus is an `extraordinary' remedy, it should be invoked sparingly." State ex rel. Billings v. City of Point Pleasant, 194 W.Va. 301, 303, 460 S.E.2d 436, 438 (1995) (footnote omitted). We further note that "[t]he traditional use of mandamus has been to confine an administrative agency or an inferior court to a lawful exercise of its prescribed jurisdiction or `to compel it to exercise its authority when it is its duty to do so.'" State ex rel. Frazier v.. Meadows, 193 W.Va. 20, 31, 454 S.E.2d 65, 76 (1994), quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185, 1190 (1943).

The traditional test for granting mandamus relief is stated in syllabus point 2 of State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969):

A writ of mandamus will not issue unless three elements coexist—(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.

See Syl. pt. 1, State ex rel. Aaron v. King, 199 W.Va. 533, 485 S.E.2d 702 (1997). "Once these prerequisites are met, this Court's decision whether to issue the writ is largely one of discretion." Billings, 194 W.Va. at 304, 460 S.E.2d at 439 (footnote omitted). With this standard in mind, we now address the merits of Mr. Davis' petition.

III. DISCUSSION

A. Mootness Issue

Because the protestable orders sought by Mr. Davis were issued, the Commissioner urges the dismissal of the petition as moot. In syllabus point 1 of State ex rel. Durkin v. Neely, 166 W.Va. 553, 276 S.E.2d 311 (1981), this Court restated the general doctrine with regard to mootness by stating:

Moot questions or abstract propositions, the decision of which would avail nothing in the determination of controverted rights of persons or of property are not properly cognizable by a court.

See Syl. pt. 1, State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908). However, in syllabus point 1 of State ex rel. M.C.H. v. Kinder, 173 W.Va. 387, 317 S.E.2d 150 (1984), we outlined a well-established exception to the mootness doctrine in cases similar to the present case:

A case is not rendered moot even though a party to the litigation has had a change in status such that he no longer has a legally cognizable interest in the litigation or the issues have lost their adversarial vitality, if such issues are capable of repetition and yet will evade review.

(Emphasis added.) In syllabus point 1 of Israel by Israel v. West Virginia Secondary Schools Activities Com'n, 182 W.Va. 454, 388 S.E.2d 480 (1989),

we expanded the test for determining whether to address a moot issue:

Three factors to be considered in deciding whether to address technically moot issues are as follows: first, the court will determine whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief; second, while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public; and third, issues which may be repeatedly presented to the trial court, yet escape review at the appellate level because of their fleeting and determinate nature, may appropriately be decided.

Although Mr. Davis no longer has a legally cognizable interest in the litigation, the specific issue, namely unreasonable delay by the Workers' Compensation Commissioner in addressing his requests, is of great public interest to the workers in this State and is capable of repetition. If this Court simply dismissed this action as moot, future injured workers may be subject to unnecessary delays in the processing of claims. We are particularly concerned that the delay in responding to Mr. Davis' three requests represents a pattern or practice of long unnecessary delays by the Commissioner in addressing claimants' requests. See Cathe A. v. Doddridge County Bd. of Educ., 200 W.Va. 521, 490 S.E.2d 340 (1997) (invoking exception to mootness doctrine); West Virginia Educ. Ass'n v. Consolidated Public Retirement Bd., 194 W.Va. 501, 460 S.E.2d 747 (1995) (same); McGraw v. Caperton, 191 W.Va. 528, 446 S.E.2d 921 (1994) (same); Hairston v. Lipscomb, 178 W.Va. 343, 359 S.E.2d 571 (1987) (same); Calhoun County Assessor v. Consolidated Gas Supply Corp., 178 W.Va. 230, 358 S.E.2d 791 (1987) (same); State ex rel. M.L.N. v. Greiner, 178 W.Va. 479, 360 S.E.2d 554 (1987) (same); Christie v. W. Va. Health Care Cost Review Authority, 176 W.Va. 420, 345 S.E.2d 22 (1986) (same); White v. Linkinoggor, 176 W.Va. 410, 344 S.E.2d 633 (1986) (same); State ex rel. Ayers v. Cline, 176 W.Va. 123, 342 S.E.2d 89 (1985) (same); State ex rel. J.D.W. v. Harris, 173 W.Va. 690, 319 S.E.2d 815 (1984) (same); Marshall v. Casey, 174 W.Va. 204, 324 S.E.2d 346 (1984) (same); State ex rel. McGraw v. Willis, 174 W.Va. 118, 323 S.E.2d 600 (1984) (same); Rissler v. Giardina, 169 W.Va. 558, 289 S.E.2d 180 (1982) (same); State ex rel. White v. Narick, 170 W.Va. 195, 292 S.E.2d 54 (1982) (same); State ex rel. Barker v. Manchin, 167 W.Va. 155, 279 S.E.2d 622 (1981) (same); State ex rel. K.W. v. Werner, 161 W.Va. 192, 242 S.E.2d 907 (1978) (same).

Although, we agree with the Commissioner that the issue with regard to Mr. Davis is moot, because of the possibility that similar unnecessary delays in responding to legitimate claimant requests may occur in the future, we now address the merits of this case under the Kinder-Israel, exception to the mootness doctrine.

B. The Duty of the Commissioner to Timely Respond to Requests by a Workers' Compensation Claimant

The issue in this case concerns the Commissioner's failure to respond in a timely manner to requests to find an alleged sequela compensable and for medical benefits. Mr. Davis made specific requests to the Commissioner, and for more than 10 months, the Commissioner failed to respond. On December 15, 1999, the Commissioner entered the requested orders, but his orders were entered only after this Court entered a rule to show cause in mandamus. Even then, these orders...