VERIZON WV v. WV BUREAU OF EMPL. PROGRAMS, No. 30899-30901.
| Citation | 586 S.E.2d 170,214 W.Va. 95 |
| Decision Date | 12 June 2003 |
| Docket Number | No. 30899-30901. |
| Parties | VERIZON WEST VIRGINIA, INC., et al., Petitioners Below, Eastern Associated Coal Corporation, Appellant, v. WEST VIRGINIA BUREAU OF EMPLOYMENT PROGRAMS, WORKERS' COMPENSATION DIVISION, Respondent Below, Appellee. Verizon West Virginia, Inc., et al., Petitioners Below, Weirton Steel Corporation, Appellant, v. West Virginia Bureau Of Employment Programs, Workers' Compensation Division, Respondent Below, Appellee. Verizon West Virginia, Inc., et al., Petitioners Below, Pine Ridge Coal Company, Appellant, v. West Virginia Bureau Of Employment Programs, Workers' Compensation Division, Respondent Below, Appellee. |
| Court | West Virginia Supreme Court |
Concurring Opinion of Chief Justice Starcher July 9, 2003.
Michael W. Carey, Carey, Scott and Douglas, PLLC, Phillip J. Combs, Allen, Guthrie & McHugh, Charleston, for the Appellant, Eastern Associated Coal Corporation.
Ancil G. Ramey, Henry C. Bowen, Michelle E. Piziak, Steptoe & Johnson, PLLC, Charleston, for the Appellant, Weirton Steel Corporation.
Sarah E. Smith, Heather G. Harlan, Bowles Rice McDavid Graff & Love, PLLC, Charleston, for the Appellant, Pine Ridge Coal Company.
Darrell V. McGraw, Jr., Attorney General, Silas B. Taylor, Senior Deputy Attorney General, Christie S. Utt, Assistant Attorney General, Randall B. Suter, Senior Counsel, WV Bureau of Employment Programs, Charleston, for the Appellee. ALBRIGHT, Justice:
This case involves the consolidated appeals of three employers, Eastern Associated Coal Corporation (hereinafter "EACC"), Pine Ridge Coal Company (hereinafter "Pine Ridge") and Weirton Steel Corporation (hereinafter "Weirton Steel") from the January 17, 2002, final order of the Circuit Court of Kanawha County. The final order affirmed the November 30, 2000, administrative order of the Commissioner of the Bureau of Employment Programs (hereinafter "Commissioner") which upheld the methodology used by the Bureau's Division of Workers' Compensation (hereinafter "the Division") to calculate premium rates for self-insured employers for fiscal year 1998 (hereinafter "FY 1998").1 By way of this appeal, the employers continue to challenge the calculation of FY 1998 workers' compensation premium rates for self-insured employers on the grounds that it violates statutory, regulatory and constitutional provisions. In addition to reversal of the lower court's decision, Appellants seek: (1) adoption of Appellants' proposed findings of fact and conclusions of law as a resolution to the proceedings below; (2) an order directing the Division to comply with the Workers' Compensation Act, as interpreted by Appellants, and requiring the Division to maintain a separate surplus fund, including a second injury reserve; (3) return of overpayment of premiums due to the illegally fixed rates, including accrued interest; and (4) attorney fees and costs, with such other relief as may be found appropriate. After careful and reflective examination of the issues presented, we affirm the order of the court below and deny all relief requested.
To gain a clearer understanding of the issues presented through this appeal, we begin with an overview of the relevant provisions of the state's workers' compensation system. Through the establishment of the Workers' Compensation Fund (sometimes hereinafter referred to as the "Fund"), the Legislature created a state operated insurance system which provides coverage to West Virginia employers for personal injuries sustained by their employees during the course of and resulting from their employment. W. Va.Code Chapter 23. As designed by the Legislature, nearly all2 employers in the state are required to acquire workers' compensation coverage or be subjected to the loss of certain common law defenses applicable to workplace injuries, which loss could prove to be devastating to an employer sued by injured employees. Injured employees3 are protected by the system in that it provides an organized and predictable method by which employees receive compensation when they are incapacitated as a result of job-related diseases and workplace injuries. Consequently, by providing protection against such significant financial losses for both employers and employees, the workers' compensation system has become a rudimentary part of the economic fabric of this state.
Employers may participate in the mandatory portions of the workers' compensation system in one of three4 ways: (1) by subscribing to the program for coverage of all risks; (2) by subscribing for a portion of risk coverage through the program but self-insuring against other risks; or (3) by electing to self-insure against all risks. Employers obtaining coverage by subscribing to the workers' compensation system pay premiums which are based upon: their respective payrolls for or hours worked by their employees; the business or function of those employees; the loss record of the employer over the years; and the cost of administering the system. The premiums are intended by law to cover the cost of administering the system and paying the benefits provided for those suffering workplace injuries or diseases. In lieu of subscribing to the Fund and paying premiums for risk coverage under the system, employers with the financial ability to elect to be self-insured as to all or part of their liabilities may do so under the Act.5 Claims originating from employees of self-insured employers are processed and administered by the Division; however, the benefits due an employee for any injury for which the employer is self-insured are considered wholly the responsibility of the employer. Unlike subscribing employers for whom "charges" to their respective accounts mean simply the potential for higher premium payments in the future, employers self-insured for particular risks have the obligation to actually pay from their own resources any benefits due their injured employees.
Self-insured employers are required to contribute to "the expense of the administration" of the workers' compensation system by paying a portion of the premiums paid by subscribing employers. W. Va.Code ? 23-2-9. Further, self-insured employers are required to post a bond with the Division, expected to be sufficient to cover claims for which the employer may later become liable but be financially unable to pay from available resources. Id.
W. Va.Code ? 23-3-1(d)(1). The policy initially underlying the second injury fund was to encourage employers to hire people who may have suffered an earlier injury. This incentive allows a second or subsequent employer subscribing to the second injury fund to be charged only with the benefits directly attributable to the second injury when a previously injured employee suffers a subsequent injury resulting in a disability; if the injury results in a life award by reason of the employee being totally disabled, the second injury fund and not the current employer is charged with the costs of the life award. In contrast, employers not subscribing to the second injury fund, electing instead to self-insure against such second injuries, are charged the entire cost of a second injury life award. The legislative directive regarding the creation of a second injury reserve within the surplus fund contemplated the existence of a reserve for the payment of at least some of the cost of any such life award to a previously injured employee who later becomes totally disabled.
As related earlier, qualifying employers may elect to fully self-insure against all workplace risks or to self-insure against specific risks. Thus, an employer may be self-insured with respect to all general workers' compensation claims but elect to pay additional premiums to the Division for so-called second injury and catastrophe risks,6 whereby life awards arising out of second injuries or awards of benefits arising from catastrophic events are paid by the system rather than the employer. In such instances, the otherwise self-insured employer is in the same posture as any other subscribing employer. Alternatively, an employer may elect to self-insure against second injuries7 and catastrophic risks. If self-insured with respect to second injuries, the employer undertakes to pay all workers' compensation second injury benefits thereafter due, including life awards, whether such benefits arise solely from second injuries or a combination of a second injury and previous injuries.
The three employer Appellants in the case before us are required to participate in the workers' compensation program and have elected to self-insure their risks, albeit in somewhat different ways. EACC is self-insured for general workers' compensation liabilities and subscribes to the Division for second injury coverage; Weirton Steel and Pine Ridge are wholly self-insured against general and second injury risks.8 All of Appellants pay some level of premiums, the calculation of which was affected by legislative amendments enacted in the 1990's.
In 1993 and 1995, the Legislature substantially amended the...
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