State ex rel. McKenzie v. Smith, No. 29645.

• Court: Supreme Court of West Virginia
• Writing for the Court: STARCHER, Justice.
• Citation: 569 S.E.2d 809,212 W.Va. 288
• Parties: STATE of West Virginia ex rel. Michael M. McKENZIE, Petitioner, v. Robert J. SMITH, Commissioner, Bureau of Employment Programs, Workers' Compensation Division, and Simonton Building Products, Inc., Respondents.
• Docket Number: No. 29645.
• Decision Date: 28 June 2002

569 S.E.2d 809
212 W.Va. 288

STATE of West Virginia ex rel. Michael M. McKENZIE, Petitioner,
v.
Robert J. SMITH, Commissioner, Bureau of Employment Programs, Workers' Compensation Division, and Simonton Building Products, Inc., Respondents

No. 29645.

Supreme Court of Appeals of West Virginia.

Submitted January 22, 2002.

Decided June 28, 2002.

Dissenting Opinion of Justice Maynard July 9, 2002.

Dissenting Opinion of Chief Justice Davis July 17, 2002.

569 S.E.2d 812

Robert F. Cohen, Jr., Esq., Cohen, Abate & Cohen, L.C., Morgantown, for the Petitioner

James M. Robinson, Esq., Robinson & Rice, L.C., Huntington, Amicus Curiae.

Grant Crandall, Esq., United Mineworkers of America, Fairfax, for Amicus Curiae United Mineworkers of America.

Thomas P. Maroney, Esq., West Virginia State Labor Federation, AFL-CIO, Charleston,

569 S.E.2d 813

for Amicus Curiae West Virginia State Labor Federation, AFL-CIO

Richard M. Crynock, Esq., Bureau of Employment Programs, Charleston, for Respondent Robert J. Smith.

Ancil G. Ramey, Esq., Misty L. Heitz, Esq., Steptoe & Johnson, PLLC, Charleston, for Respondent Simonton Building Products, Inc.

Timothy E. Huffman, Esq., Jackson & Kelly, Charleston, for Amicus Curiae West Virginia Business and Industry Council.

569 S.E.2d 810

569 S.E.2d 811

STARCHER, Justice.

The instant case is a petition seeking a writ of mandamus directed to Robert J. Smith, the Commissioner of the West Virginia Workers' Compensation Division ("Commissioner"). The Commissioner is charged with disbursing the Workers' Compensation Fund to workers who receive injuries in the course of and resulting from their employment. W.Va.Code, 23-4-1 [1989].

The petitioner seeks a writ of mandamus to compel the Commissioner to abide by certain provisions of the Workers' Compensation Act regarding rehabilitation services, and to prevent the Commissioner's further reliance upon regulations and internal policies and procedures which mandate that injured workers seeking rehabilitation be referred to their employer's "preferred provider for rehabilitation services."

As set forth below, we find that the Commissioner's and Workers' Compensation Division's system of using an employer's preferred provider for rehabilitation services to be contrary to the provisions of the Act. We therefore grant the requested writ of mandamus.

I.

Facts & Background

The instant case revolves around the petitioner's repeated attempts, beginning in March 1999, to obtain vocational rehabilitation services from the West Virginia Workers' Compensation Division ("the Division"). More importantly, the case is focused on the legality of the Division's regulations, policies and procedures mandating the referral of the petitioner to the "employer's preferred provider for rehabilitation services." We begin, however, by discussing the petitioner's on-the-job injury and subsequent treatment.

The petitioner, Michael M. McKenzie, was employed as a packer for the respondent, Simonton Building Products ("Simonton"), at its facility in Pennsboro, West Virginia. The petitioner's job required that he lift and carry windows up to 68 inches wide and weighing 150 pounds.

On October 2, 1998, the petitioner strained his back at work. The petitioner continued to work, but when the pain in his back worsened, he consulted with a chiropractor. Afterward, on November 4, 1998, he filed a claim for workers' compensation benefits with the Division.

An MRI of the petitioner's back revealed that the petitioner had a ruptured disk in his lower back involving a nerve root. The chiropractor advised the petitioner to cease work, which he did. The Division, in an order dated November 26, 1998, ruled the petitioner's claim compensable and awarded the petitioner temporary total disability benefits from December 1, 1998 through March 23, 1999.

The petitioner was released to return to a limited work schedule on March 10, 1999. The petitioner's chiropractor gave the petitioner a note which limited the petitioner to working four hours a day with no lifting, twisting or bending for two weeks, and then eight hours a day with no lifting, twisting or bending for three months, at which time he would be re-evaluated. The petitioner took the note to the safety manager at Simonton, but was told that there was no job available which required only four hours a day. The petitioner then sought employment with other companies, and obtained a job on July 7, 1999 installing telephone and computer wiring. However, the petitioner stopped working on July 30, 1999 because of severe back pain.

In August 1999, the Division issued an authorization for the petitioner to have back surgery, and a lumbar laminectomy and diskectomy was performed on the petitioner in

569 S.E.2d 814

September. Additionally, the petitioner received temporary total disability benefits from September 1, 1999 through April 5, 2000. The petitioner was examined by a doctor in February 2000, and based upon the doctor's report, the Division granted the petitioner a 15% permanent partial disability on June 26, 2000.

The petitioner contends that during his recovery from his October 2, 1998 injury, he requested on three occasions that the Division authorize that he receive rehabilitation services.

A.

Petitioner's First Attempt to Receive Rehabilitation Services

In March 1999, after being released to return to work but being informed by Simonton's safety manager that no work was available within the petitioner's medical limitations, the petitioner contacted his claims representative at the Division. The petitioner discussed with the claims representative the possibility of vocational rehabilitation, and on March 16, 1999, the Division entered an order referring the claimant to Quality Rehabilitation Services, Inc. ("QRS"). The record suggests that QRS had been designated as Simonton's "preferred provider for rehabilitation services" by the Division, and was the exclusive provider for rehabilitation services for Simonton employees.

Several days later, an employee of QRS spoke with respondent Simonton, and was told by Simonton that the petitioner was not eligible for vocational rehabilitation services. Simonton stated that the petitioner was a "seasonal" employee—that is, his job lasted only so long as the company was working on a particular project. Apparently, all "seasonal" employees were laid off from Simonton in December 1998, approximately one month after the petitioner stopped working due to his injury, and the seasonal employees were told there would be no position after the project was completed.

The record indicates that Simonton related to the QRS employee its concern that the petitioner was receiving any workers' compensation benefits as a "seasonal" employee, and stated that the petitioner "is not eligible for vocational rehabilitation services due to the position being a seasonal position[.]" In response, the QRS employee agreed to contact the Division on Simonton's behalf "to correct eligibility matters."

The record reflects that on March 23, 1999, QRS contacted the petitioner's claims representative at the Division, and informed the claims representative that the petitioner "was hired as a seasonal employee and would not be eligible for vocational rehabilitation services due to this fact." The claims representative agreed that "if Mr. McKenzie was a seasonal employee then Mr. McKenzie would not be eligible for vocational rehabilitation services." That same day, the petitioner was contacted by the claims representative and told that he was not eligible for vocational rehabilitation benefits.

Subsequently, the petitioner hired an attorney. The petitioner's attorney contacted the claims representative's supervisor at the Division, and the supervisor acknowledged that the Division was wrong in denying vocational rehabilitation services to the petitioner because he was a seasonal employee.¹ However, no action was taken because the petitioner was planning to have back surgery.

Following the petitioner's back surgery in September 1999, a letter by the petitioner's surgeon was sent to the Division recommending "some vocational retraining ... through

569 S.E.2d 815

workman's compensation." The record suggests that the letter was received by the petitioner's claims representative; it is not clear what action, if any, the Division took in response to the letter.

B.

Petitioner's Second Attempt to Receive Rehabilitation Services

On November 10, 1999, a letter was sent to the petitioner's claims representative by an administrator for Simonton. The letter stated that the Simonton administrator had "received correspondence from ... WC that stated the claimant is indeed eligible for rehabilitation services." The Simonton letter then asked the Division claims representative to refer the petitioner to Recourse, Inc., "the employer's preferred provider for rehabilitation" because Simonton "had all their claims transferred from QRS to Recourse months ago."

In an order dated January 28, 2000, the Division referred the petitioner to Recourse, Inc. ("Recourse") for rehabilitation services.

A rehabilitation counselor for Recourse subsequently interviewed the petitioner, and the petitioner clearly expressed both a desire to return to work and a desire for vocational rehabilitation services.

The rehabilitation counselor informed the petitioner, in several meetings, that his rehabilitation would proceed according to a seven-step "rehabilitation hierarchy." This hierarchy is mandated through regulations implemented by the Division.² The regulation simply begins by stating that if the Workers' Compensation Commissioner determines that an injured worker cannot complete a lower-numbered step in the hierarchy, then the next higher-numbered step must be used. The first four steps of the rehabilitation hierarchy require returning the injured worker to work with the same employer, at the same or different positions and with varying...