Thompson v. Workers' Compensation Com'r, 18762

• Decision Date: 28 March 1989
• Docket Number: No. 18762,18762
• Citation: 180 W.Va. 720,379 S.E.2d 770
• Court: West Virginia Supreme Court
• Parties: William P. THOMPSON v. WORKERS' COMPENSATION COMMISSIONER and McNamee Resources, Inc.

Page 770

379 S.E.2d 770

180 W.Va. 720

William P. THOMPSON v. WORKERS' COMPENSATION COMMISSIONER and McNamee Resources, Inc.

No. 18762.

Supreme Court of Appeals of West Virginia.

March 28, 1989.

Syllabus by the Court

1. "Code, 23-5-1, as amended, relating to the mailing of notice to interested parties upon an order entered by the Workmen's Compensation Director, provides for a period of 30 days after 'receipt of such notice' within which objection may be made to obtain a hearing before the Director. The notice must be actually or constructively received, not merely mailed; and until such time as the notice is received by the party seeking to protest or object, notwithstanding the expiration of the 30 day period from the date such notice was mailed, the right to obtain a hearing by filing an objection still remains." Syllabus Point 1, Adkins v. State Compensation Director, 149 W.Va. 540, 142 S.E.2d 466 (1965).

2. The time period for filing objections to rulings of the Workers' Compensation Commissioner under W.Va.Code, 23-5-1 (1986), is jurisdictional. When, however, a party does not receive notice of an adverse ruling, as required by the statute, this time period cannot, in accordance with procedural due process, be applied to bar such party from filing his or her objections.

Linda Rice, Baer, Robinson & Colburn, Huntington, for William P. Thompson.

Howard M. Persinger, McDonough Caperton, Employee Benefits, Williamson, for McNamee Resources, Inc.

MILLER, Justice:

The claimant, William P. Thompson, appeals from a final order entered by the Workers' Compensation Appeal Board on May 27, 1988, affirming a decision of the Workers' Compensation Commissioner denying claimant's reopening application filed under W.Va.Code, 23-5-1a (1986). The Appeal Board denied the claimant's motion based on W.Va.Code, 23-5-1e, stating that the claimant failed to timely protest a March 19, 1987 order by the Commissioner. The claimant contends that the Appeal Board failed to consider whether good cause was shown for the late filing and that the Appeal Board denied him his due process right to a written notice. We agree, and we reverse the decision of the Appeal Board.

The claimant filed an occupational hearing loss claim which the Commissioner, in an order dated July 9, 1985, found compensable, but granted a 0 percent permanent partial disability (PPD) award. The claimant did not appeal this decision. In December, 1986, he moved to reopen the claim, arguing that it was covered by the newly adopted standards announced in Craddock v. Lewis, No. 16420 (W.Va. 9/12/84). In a March 19, 1987 order, the Commissioner agreed and granted the claimant a PPD award for hearing loss, which award was less than the claimant sought. ¹

The March 19, 1987 order was mailed to the claimant's counsel. The claimant's copy of the notice was also mailed to his counsel's address. Prior to the March 19, 1987 order, claimant's counsel relocated his practice to another geographical area in West Virginia. Both letters were returned unopened by the post office to the Commissioner. The letters were retained in the claim file and are a part of the record in this case.

Coincidentally, by letter dated March 25, 1987, the claimant's attorney gave formal notice that he no longer represented the claimant. The Commissioner received this letter on March 30, 1987. Claimant's new attorney requested a microfiche copy of the claimant's records on April 6, 1987, and on April 8, 1987, submitted a written fee contract with the claimant. On April 15, 1987, the Commissioner acknowledged representation by the new attorney.

The microfiche sent to claimant's attorney did not contain the March 19, 1987 order. Unaware of previous action taken in the claim, claimant's new counsel requested that the hearing loss claim be reopened under the Craddock standards. On June 23, 1987, after the March 19, 1987 order was added to the microfiche and the claimant's new attorney had been apprised of this fact, he wrote a clarifying letter to the Commissioner. The letter stated that neither the claimant nor his original attorney had actually received the March 19, 1987 order and, therefore, had had no opportunity to protest that order and request a hearing.

The Commissioner acknowledged the letter and treated it as a request for extension of time pursuant to W.Va.Code, 23-5-1e (1986), ² but denied the request, finding that the letter was received more than sixty days after the March 19, 1987 order. The Commissioner concluded that the thirty-day period contained in W.Va.Code, 23-5-1, ³ was jurisdictional unless excused under W.Va.Code, 23-5-1e. The Appeal Board, troubled by the lack of notice, reluctantly affirmed the Commissioner, stating "the compelling factual situation presented by this claim could certainly be construed as a denial of the due process rights of the claimant."

We recognized in Fucillo v. Workers' Compensation Comm'r, 180 W.Va. 595, 378 S.E.2d 637 (1988), that the 1986 legislative amendments to the workers' compensation statute regarding filings and objections were designed to alter our holding in Bailey v. State Workmen's Compensation Comm'r, --- W.Va. ---, 296 S.E.2d 901 (1982), and stated that the legislative amendments are limited to cases arising after the effective date of the amendments, i.e., March 7, 1986. ⁴

In Bailey, we recognized the inequities and hardships that occasionally occurred as a result of the thirty-day time periods for objections to the Commissioner's orders and for appeals to the Appeal Board ⁵ and to this Court ⁶ in workers' compensation cases. We concluded in Syllabus Point 1 of Bailey that our prior case law declaring these time periods to be mandatory and jurisdictional was unduly harsh. ⁷ In its place, we established a rule of excusable neglect, which we outlined in Syllabus Point 2 of Bailey:

"In the event that a late filing is excusable by virtue of innocent mistake, excusable neglect, unavoidable cause, fraud, misrepresentation or other misconduct of an adverse party, or any other reason justifying relief from the running of the time period, then timely filing shall not be considered mandatory." ⁸

In addition to the amendments specifically making the time periods jurisdictional, the 1986 legislation added a new section, W.Va.Code, 23-5-1e, which permits extensions of the time period if an application is made "within a period of time equal to the applicable period" based upon a "showing [of] good cause or excusable neglect." ⁹ This section comes into play only when a timely application is made for an extension. It is of little benefit in a situation like this where no notice is actually given.

We also observe that W.Va.Code, 23-5-1 (1986), continues the prior practice which requires that the Commissioner "shall give notice, in writing ... [to the parties] ... of his action, which notice shall state the time allowed for filing an objection to such finding." Additionally, this section states that the thirty-day period within which the objection must be made begins "after the receipt of such notice."

In Adkins v. State Compensation Director, 149 W.Va. 540, 142 S.E.2d 466 (1965), the claimant contended that he never received notice of the Commissioner's ruling and, therefore, should not be bound by the thirty-day objection period under former W.Va.Code, 23-5-1. This Court in Adkins emphasized the language of this section, which we said "clearly provides that the thirty day period in which to file an objection runs from the time of the receipt by the claimant of the notice." 149 W.Va. at 545, 142 S.E.2d at 469. (Emphasis in original). We concluded in Syllabus Point 1 that the thirty-day objection period could not expire without receipt of the notice:

"Code, 23-5-1, as amended, relating to the mailing of notice to interested parties upon an order entered by the Workmen's Compensation Director, provides for a period of 30 days after 'receipt of such notice' within which objection may be made to obtain a hearing before the Director. The notice must be actually or constructively received, not merely mailed; and until such time as the notice is received by the party seeking to protest or object, notwithstanding the expiration of the 30 day period from the date such notice was mailed, the right to obtain a hearing by filing an objection still remains."

See also Harris v. State Compensation Comm'r, 125 W.Va. 550, 25 S.E.2d 190 (1943).

The facts in Adkins were not as egregious as here, where the certified notices were returned to the Commissioner. This demonstrated, as the Appeal Board indicated, that there was no notice. In Adkins, the Commissioner claimed that a notice had been properly mailed. There was, however, no evidentiary record developed in Adkins on the notice question and this Court, therefore, remanded the case for an evidentiary hearing. Here, no evidence is required as the parties do not dispute that there was no notice given.

Although the Court in Adkins did not have the jurisdictional language now present in W.Va.Code, 23-5-1, it had existing law that stated that the time periods for objections under W.Va.Code, 23-5-1, were both mandatory and jurisdictional. State ex rel. Garnes v. Hanley, 150 W.Va. 468, 147 S.E.2d 284 (1966) (jurisdictional); Stewart v. State Compensation Director, 150 W.Va. 103, 144 S.E.2d 327 (1965) (mandatory). Notwithstanding this case law, the Adkins Court concluded that the statutory requirement for receipt of notice was fundamental and that a party's rights could not be cut off without it.

When the receipt of notice provision is analyzed from a procedural due process standpoint, its requirements become even clearer. As we explained in Mitchell v. State Workmen's Compensation Comm'r, 163 W.Va. 107, 256 S.E.2d 1 (1979), the United States Supreme Court made it clear in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), "that the creation of a statutory disability benefit...