Thacker v. WORKERS'COMPENSATION DIV.

• Decision Date: 02 December 1999
• Docket Number: No. 26197.,26197.
• Citation: 207 W.Va. 241,531 S.E.2d 66
• Court: West Virginia Supreme Court
• Parties: George W. THACKER, Appellant, v. WORKERS' COMPENSATION DIVISION and Steel of West Virginia, Inc., Appellees.

531 S.E.2d 66

207 W.Va. 241

George W. THACKER, Appellant, v. WORKERS' COMPENSATION DIVISION and Steel of West Virginia, Inc., Appellees.

No. 26197.

Supreme Court of Appeals of West Virginia.

Submitted November 3, 1999.

Decided December 2, 1999.

Concurring Opinion of Chief Justice Starcher March 1, 2000.

Robert M. Williams, Esq., Thomas P. Maroney, L.C., Charleston, West Virginia, Attorney for the Appellant.

Douglas G. Lee, Esq., Ancil G. Ramey, Esq., H. Toney Stroud, Esq., Steptoe & Johnson, Charleston, West Virginia, Attorneys for the Appellee Steel of West Virginia, Inc.

PER CURIAM:

This appeal from the Workers' Compensation Appeal Board ("Appeal Board") concerns the application of Javins v. Workers' Compensation Comm'r, 173 W.Va. 747, 320 S.E.2d 119 (1984), our seminal case on the interpretation of evidence in a workers' compensation occupational pneumoconiosis claim. In this case—as in many identical workers' compensation cases—both the Workers' Compensation Office of Judges ("Office of Judges") and the Appeal Board ignored the evidentiary rules for workers' compensation claims set forth in the West Virginia Code, and ignored the plain terms of our interpretation of those rules in Javins.

The Appeal Board in this case affirmed an order of the Office of Judges that reduced a claimant's workers' compensation permanent partial disability award from 15% to 5%, disregarding reliable evidence that the claimant had a 15% impairment to his breathing capacity. Because of the Appeal Board's and the Office of Judges' failure to apply the well-established evidentiary rules set forth below, we reverse the Appeal Board's decision.

I.

Beginning in 1965, the appellant, George W. Thacker, was employed by appellee Steel of West Virginia, Inc. at its facility in Huntington, West Virginia. In the course of Mr. Thacker's employment as a machine operator he was routinely exposed to substantial amounts of dust. As a result of this exposure to dust the appellant developed occupational pneumoconiosis, "a disease of the lungs caused by the inhalation of minute particles of dust over a period of time due to causes and conditions arising out of and in the course of the employment." W.Va.Code, 23-4-1 [1995].

In late 1991, while the appellant was still working for the appellee, he filed a claim seeking workers' compensation benefits for his occupational pneumoconiosis. On September 21, 1992, the West Virginia Workers' Compensation Division ("Division") ruled that the appellant met the statutory requirements to be eligible for workers' compensation benefits. The Division referred the appellant to the Occupational Pneumoconiosis Board ("OP Board") for medical testing to determine whether, and if so to what extent, the appellant had a lung injury caused by the inhalation of dust.

The OP Board examined the appellant on February 16, 1993. By the examination of x-ray films, the OP Board diagnosed the appellant with occupational pneumoconiosis. Pulmonary function testing was also performed by the OP Board, and based upon these test results the OP Board concluded that the appellant had sustained a 15% impairment as a result of his lung injury.¹ Based upon the OP Board's conclusions, the Division entered an order on March 8, 1993 granting the appellant a 15% permanent partial disability award.

The appellee-employer protested the Division's order to the Office of Judges, compelling the appellant to submit to a second pulmonary function test on October 11, 1995. At a hearing held on August 20, 1997 before an administrative law judge, the OP Board reviewed the employer's pulmonary function test results as well as the Board's pulmonary function test results. The OP Board did not specifically find that its own earlier test results, which formed the basis for the appellant's initial 15% permanent partial disability award, were unreliable. Instead, the chairman of the OP Board, Dr. James H. Walker, testified that he thought the employer's pulmonary function test was "the best study" and that the employer's test was "the most reliable and accurate study to show any pulmonary impairment." Based upon the employer's pulmonary function test results, the members of the OP Board testified that "there is no valid evidence of any pulmonary impairment" in the appellant.

On October 20, 1997, the Office of Judges entered an order reversing the Division's Order of March 8, 1993. The Office of Judges concluded, based upon the OP Board's testimony, that the appellant "has no impairment of pulmonary function." The order therefore concluded that the appellant could only receive a 5% permanent partial disability award on the basis of his x-ray diagnosis of occupational pneumoconiosis.²

The appellant appealed the order of the Office of Judges to the Workers' Compensation Appeal Board. On May 29, 1998, the Appeal Board, in a one-page order, affirmed the decision of the Office of Judges. This appeal was then filed.

II.

The Workers' Compensation Act specifically provides that the Division, the Office of Judges, and the Appeal Board are to construe the evidence in workers' compensation claims in a manner that ensures that the rights of the claimant are protected. W.Va. Code, 23-1-15 [1923] states:

The [workers' compensation] commissioner shall not be bound by the usual common-law or statutory rules of evidence, but shall adopt formal rules of practice and procedure as herein provided, and may make investigations in such manner as in his judgment is best calculated to ascertain the substantial rights of the parties and to carry out the provisions of this chapter.

Since the passage of W.Va.Code, 23-1-15 in 1913, this Court has interpreted the statute to require that a spirit of liberality in favor of the claimant be employed in applying the provisions of the Workers' Compensation Act. "[W]e must remember that our legislature has shown an earnest endeavor above everything else to give material justice its due while formal rules of jurisprudence are pushed aside." Machala v. State Compensation Comm'r, 109 W.Va. 413, 415, 155 S.E. 169, 170 (1930).

Under the provisions of W.Va.Code, 23-1-15, the Division is required "in administering the workmen's compensation fund to ascertain the substantial rights of the claimants in such manner as will `carry out justly and liberally the spirit of the act[.]' "Syllabus, Culurides v. Ott, 78 W.Va. 696, 90 S.E. 270 (1916). To put this statutory intent into practice, this Court has repeatedly held that the statute imposes upon the Division a "duty... to give the claimant the benefit of inferences arising in his favor from the facts proved ..." Syllabus Point 3, Poccardi v. Public Service Commission, 75 W.Va. 542, 84 S.E. 242 (1915). When the Division is presented with conflicting evidence, "the presumptions should be resolved in favor of the employee rather than against him." Syllabus Point 1, Pripich v. State Compensation Comm'r, 112 W.Va. 540, 166 S.E. 4 (1932).

More recently, this Court has summarized this "rule of liberality" in the following manner: "In all types of compensation cases, conflicts in evidence, medical or otherwise, are to be construed in favor of the claimant." Javins v. Workers' Compensation Comm'r, 173 W.Va. 747, 758, 320 S.E.2d 119, 130 (1984). See also, Workman v. Workmen's Compensation Comm'r, 160 W.Va. 656, 236 S.E.2d 236 (1977); Myers v. State Workmen's Compensation Comm'r, 160 W.Va. 766, 239 S.E.2d 124 (1977); Pennington v. State Workmen's Compensation Comm'r, 154 W.Va. 378, 387, 175 S.E.2d 440 (1970); McGeary v. State Compensation Director, 148 W.Va. 436, 438-39, 135 S.E.2d 345 (1964); Demastes v. State Compensation Comm'r, 112 W.Va. 498, 165 S.E. 667 (1932).

In Persiani v. SWCC, 162 W.Va. 230, 248 S.E.2d 844 (1978) we specified that the rule of liberally interpreting evidence in favor of the claimant is to be applied in occupational pneumoconiosis claims. We described the liberality rule as one "which mandates that reputable evidence favorable to the claimant be considered and the claimant treated as generously as any reasonable view of the evidence would justify." 162 W.Va. at 236, 248 S.E.2d at 848 (1978).

Persiani presented the Court with the question of how the rule of liberality should be applied "when the claimant introduces expert testimony on disability to the Occupational Pneumoconiosis Board who, as experts themselves, disbelieve the claimant's evidence and find the evidence of the employer's examining experts more credible[.]" The question raised in Persiani is nearly identical to the issue in this case, where the OP Board similarly concluded that the employer's pulmonary function tests, which indicated that the appellant had no respiratory impairment, were "more reliable" than the OP Board's test results indicating a 15% impairment.

This approach used by the OP Board in Persiani for interpreting evidence in pneumoconiosis claims was specifically rejected by this Court. We specified that the Division may not accept the OP Board's recommendation to "arbitrarily choose to disbelieve any competent medical testimony in its entirety or to exclude it from consideration altogether, absent credible evidence in the record that the suspect testimony is unreliable." Syllabus, Persiani.³

Persiani concerned the use of blood gas studies as evidence of breathing impairment in an occupational pneumoconiosis claim. The rule of liberality discussed in Persiani has at times been mistakenly interpreted as being limited only to evidence of blood gas studies, and this Court has seen argument to the effect that the rule does not apply to other types of evidence in occupational pneumoconiosis claims. See, e.g., Kubachka v. State Workmen's Compensation Comm'r, 163 W.Va. 601, 259 S.E.2d 21 (1979).

In Javins v. Workers' Compensation Comm'r, 173 W.Va. 747, 320 S.E.2d 119 (1984), we made absolutely clear that the rule of liberality applies to all types of evidence concerning the degree of impairment...