Williams v. Robinson, 18440
| Decision Date | 09 December 1988 |
| Docket Number | No. 18440,18440 |
| Citation | 376 S.E.2d 304,180 W.Va. 290 |
| Parties | Freeman WILLIAMS v. Nelson B. ROBINSON, Jr., Commissioner, West Virginia Workers' Compensation Fund. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. W.Va.Code, 23-4-6(a), (b) and (d) [1986], and W.Va.Code, 23-4-14 [1986], when read in pari materia, require the Workers' Compensation Commissioner to recalculate permanent total disability benefits annually, based on the state average weekly wage.
2. Syl. pt. 1, Rogers v. Hechler, 713 W. Va. 176, 348 S.E.2d 299 (1986).
James M. Robinson, Baer, Robinson & Colburn, Huntington, for appellant.
Mary Lou Newberger, Atty. Gens. Office, for appellee.
Petitioner, Freeman Williams, seeks a writ of mandamus ordering the Workers' Compensation Commissioner to increase his benefit payments for a previously ordered permanent total disability (PTD) award. The petitioner contends that the Commissioner's method of recalculating benefits based on the annually adjusted state average weekly wage violates the legislative intent of a statutory escalator clause, which the petitioner contends is to be applied favorably to all workers' compensation benefits recipients.
The petitioner was injured in 1977. In 1987, the Commissioner granted him a PTD award. The petitioner received his first check, totalling $70,569.98, for back benefits from 1977 through 1987.
The petitioner then wrote the Commissioner on two occasions and informed the Commissioner that his benefits were miscalculated. The Commissioner did not respond. The petitioner filed this writ of mandamus to compel the Commissioner to recalculate his benefits in a manner which comports with the legislative intent of the pertinent statutes. The Commissioner responded that the statutes are clear and unambiguous and that he properly applied them when he calculated the petitioner's benefits.
The petitioner contends that based on legislative intent, he has a clear legal right to receive benefits calculated in a manner most beneficial to him; therefore, a writ should be issued requiring the Commissioner to adopt the petitioner's method of calculating PTD benefits. In order to follow the arguments by both parties it is necessary to review the statutes concerning the calculation of benefits and the manner in which the Commissioner has applied them.
Along with several other types of benefits, W.Va.Code, 23-4-6(d) [1986] requires that PTD benefits are calculated according to a statutory formula contained in W.Va.Code, 23-4-6(b) [1986]. The statutory formula of Code, 23-4-6(b) reads, in pertinent part:
[T]he employee shall receive during the continuance thereof weekly benefits as follows: A maximum weekly benefit to be computed on the basis of seventy percent of the average weekly earnings, wherever earned, of the injured employee, at the date of injury, not to exceed the percentage of the average weekly wage in West Virginia, as follows: ...; on or after July one, one thousand nine hundred seventy-five, one hundred percent.
The minimum weekly benefits paid hereunder shall not be less than ... for injuries occurring on or after July one, one thousand nine hundred seventy-six, thirty-three and one-third percent of the average weekly wage in West Virginia.
(emphasis added).
In the formula, a person's average weekly wage remains a constant, it is determined "at the date of the injury." No such restriction appears in the formula for the state average weekly wage. According to W.Va.Code, 23-4-6(a) [1986], for purposes of the formula, the state average weekly wage is defined in W.Va.Code, 23-4-14 [1986].
W.Va.Code, 23-4-14 begins:
The average weekly wage earnings, wherever earned, of the injured person at the date of injury, and the average weekly wage in West Virginia as determined by the commissioner of employment security, in effect at the date of injury, shall be taken as the basis upon which to compute the benefits.
(emphasis added).
However, Code, 23-4-14, then continues:
The expression 'average weekly wage in West Virginia,' within the meaning of this chapter, shall be the average weekly wage in West Virginia as determined by the commissioner of employment security in accordance with the provisions of sections ten and eleven, article six, chapter twenty-one-A of the Code of West Virginia, one thousand nine hundred thirty-one, as amended, and other applicable provisions of said chapter twenty-one A. [annual recalculation and publication of the state average weekly wage]. 1
(emphasis added).
Finally, 23-4-14 concludes with an escalator clause which is tied solely to the state average weekly wage any award for ... permanent total disability benefits ..., shall be paid at the weekly rates ... applicable to the claimant therein in effect on the date of such injury. If during the life of such award for ... permanent total disability benefits ..., the weekly rates or the monthly amount ... are increased or decreased, the claimant shall receive such increased or decreased benefits beginning as of the effective date of said increase or decrease.
(emphasis added).
When the definition of "state average weekly wage" contained in W.Va.Code, 23-4-14 is read in conjunction with the formula contained in 23-4-6(b), it is clear that the legislature intended that the Commissioner take into consideration, not merely the state average weekly wage in the year of the injury, but the annually adjusted state average weekly wage for the life of the award. As discussed later, the state average weekly wage has been steadily increasing due to inflationary pressures. Rather than specifying in the formula that the state average weekly wage on the date of the injury is the sole basis for the formula, the legislature has made the state average weekly wage a variable, which presumably will continue to steadily increase over time. In doing so, the legislature has made the formula in Code, 23-4-6(b) a sliding scale of benefit rates, which automatically adjusts the award of a recipient whose basis is tied to the state average weekly wage. The West Virginia legislature's adoption of a sliding scale benefit formula is one of several methods that state legislatures have utilized to redress the detrimental effect of inflation on the wage-replacement purpose of workers' compensation. 2
The issue before the Court is the manner in which the Commissioner has taken into consideration the annually adjusted state average weekly wage. The Commissioner reads Code, 23-4-14 as requiring an annual recalculation of benefits using the state average weekly wage for all succeeding years during the life of an award as the basis for the formula. See note 1, supra. It is this recalculation that the petitioner challenges.
The manner in which the Commissioner calculated the petitioner's benefits follows. First, in 1977, the year of the injury, the petitioner's average weekly wage was $330.60. For purposes of the formula contained in Code, 23-4-6(b), the Commissioner then determined that 70% of $330.60 is $231.42. From 1977, the year of the injury, until 1987, the year through which the petitioner's back benefits were paid, the Commissioner of Employment Security reported the following state average weekly wage rates:
3. These figures were provided by the Workers' Compensation Commissioner. Figures for FY 1981 and 1982 were omitted. The reason for their omission is not apparent in the Commissioner's brief.
FY 1977"$208.00
FY 1978"$224.00
FY 1979"$237.00
FY 1980"$262.00
FY 1981"N/A
FY 1982"N/A
FY 1983"$318.87
FY 1984"$321.30
FY 1985"$332.83
FY 1986"$343.06
FY 1987"$350.83 3
Using the formula contained in W.Va.Code, 23-4-6(b), since 70% of the petitioner's average weekly wage, $231.42, exceeded 100% of the state average weekly wage for both fiscal years 1977 and 1978, he received benefits calculated upon a maximum benefit rate basis, 100% of the state average weekly wage for FY 1977 and FY 1978 ($208 and $224, respectively). However, in FY 1979, 70% of the petitioner's average weekly wage ($231.42) no longer exceeded 100% of the FY 1979 state average weekly wage ($237). Therefore, under the formula contained in Code, 23-4-6(b), the petitioner's benefits for FY 1979 were calculated upon a basis of 70% of his 1977 average weekly wage ($231.42). His benefits continued to be calculated upon this constant figure through FY 1987, since 70% of his average weekly wage remained below 100% of the state average weekly wage for the succeeding fiscal years.
Since 70% of the petitioner's average weekly wage will presumably no longer exceed 100% of the state average weekly wage, the petitioner will continue to receive benefits calculated upon a basis of $231.42 per week (rather than 100% of the state average weekly wage for any given year) unless, under Code, 23-4-6(b), in succeeding years, $231.42 falls below one-third of the state average weekly wage (or due to a sharp economic decline once again exceeds 100% of the state average weekly wage).
The petitioner contends that under the definition of "state average weekly wage" contained in Code, 23-4-14, the Commissioner has no right to recalculate his benefits pursuant to the fluctuating (presumably ever-increasing) state average weekly wage. Instead, the petitioner contends that in the year of the injury, 1977, 70% of his average weekly wage exceeded 100% of the state average weekly wage. Therefore, he should be entitled to benefits calculated upon 100% of the (presumably ever-increasing) state average weekly wage in every succeeding year for which he is...
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