Wingrove v. WORKERS'COMPENSATION DIV.
| Decision Date | 12 July 2000 |
| Docket Number | No. 26988.,26988. |
| Citation | 538 S.E.2d 378 |
| Court | West Virginia Supreme Court |
| Parties | Kathie WINGROVE, Widow of Robert Wingrove, Deceased, Petitioner Below, Appellant, v. WORKERS' COMPENSATION DIVISION and Consolidation Coal Company, Respondents Below, Appellees. |
M. Jane Glauser, Esq., Jonathan C. Bowman, Esq., Seibert & Kasserman, L.C., Wheeling, West Virginia, Attorneys for the Appellant.
Edward M. George, III, Esq., Janette D. Simmons, Esq., Phillips, Cardill, Kaiser & Altmeyer, Wheeling, West Virginia, Attorneys for Appellee, Consolidation Coal Company.
This appeal arises from an order of the Workers' Compensation Appeal Board dated November 30, 1998 which reversed an order of the Workers' Compensation Office of Judges awarding Robert C. Wingrove a permanent total disability award with an onset date of October 16, 1992. After the appeal was granted, Mr. Wingrove died and his dependent widow, Kathie Wingrove, was substituted as the petitioner. The threshold question presented in this case concerns whether a dependent widow can seek a final adjudication concerning permanent total disability benefits awarded during the claimant's life, and the second question concerns the merits of permanent total disability benefits. Based on the relevant statutes and case law, we find that substitution of the dependent widow as the petitioner is proper and that Mr. Wingrove was entitled to permanent total disability benefits payable from the second injury reserve with an onset date of October 16, 1992.
On July 24, 1984, the claimant, a coal miner employed by Consolidation Coal Company, fell backwards over a piece of equipment injuring his back. After conservative treatment, the claimant, on June 30, 1986, was released by his doctor to return to work. The claimant continued to work until February 13, 1987, when he accepted early retirement.
Numerous evaluations and orders followed. The first order from the Workers' Compensation Division dated March 27, 1987 was based on Dr. Sam Vukelick's December 1, 1986 evaluation and awarded no permanent partial disability benefits. Thereafter, the claimant was evaluated by Dr. Jonathan Himmelhoch, a psychiatrist; Mary Cogar, Dan Kilgore and Cheryl Lynch, vocational experts; Thomas Andrews, a clinical psychologist; and Dr. Paul Hedges. Although several of these reports indicated that the claimant could not return to his previous work, others indicated that the claimant could perform light work. The claimant was awarded social security disability benefits on December 7, 1988, with an onset date February 13, 1987, the date of claimant's last employment. On February 9, 1990, the claimant received a United Mine Workers of America disability pension.
On October 16, 1992, Dr. J.P. Griffith, Jr. evaluated the claimant and found him totally disabled with a seven percent permanent partial impairment to his low back in this claim. On May 5, 1993, Dr. Jerome Massenburg evaluated the claimant and found a three percent psychiatric impairment with poor rehabilitation prospects. By order dated September 9, 1993, the Division granted the claimant a ten percent permanent partial disability award (seven percent for orthopedic impairment and three percent for psychiatric impairment).
On September 23, 1994, the Division granted the claimant an additional eleven percent permanent partial disability and a permanent total disability award, payable from the second injury reserve, with an onset date of February 13, 1987. The employer protested and submitted a report from Dr. Charles Weise who found no psychiatric impairment related to the claimant's compensable injury.
The Office of Judges, by order dated April 28, 1998, modified the Division's order by finding the claimant's permanent total disability award payable from the second injury reserve with an onset date of October 16, 1992, based on Dr. Griffith's report. The Office of Judges further found no additional permanent partial disability award should be granted above the ten percent permanent partial disability previously awarded. Both the claimant and employer appealed. The claimant appealed seeking to reinstate the February 13, 1987 onset date for permanent total disability, and the employer appealed seeking reversal of the permanent total disability award.
By order entered on November 30, 1998, the Appeal Board found the previously awarded ten percent permanent partial disability award fully compensated the claimant and reversed the permanent total disability award. On December 22, 1998, the claimant appealed to this Court, seeking reinstatement of his permanent total disability award, with an onset date of February 13, 1987.
This Court, by order entered December 20, 1999, granted the appeal, 4-1 (Maynard, J., dissenting, with Workman, J., participating, and Scott, J., not participating). On March 13, 2000 while the case was pending, the claimant died. On May 23, 2000, the Court granted the motion of Kathie Wingrove, the dependent widow, to substitute her as the petitioner in this proceeding.
These facts present two questions: (1) The effect of a claimant's death during the long adjudicatory process concerning a previously granted permanent total disability award; and, (2) If the appeal survives the claimant's death, a decision on the issue of permanent total disability benefits.
Rule 27(a), Rules of Appellate Procedure, sets forth the procedure for substitution of parties when a party dies after a case is appealed to this Court. Generally, the personal representative of the deceased party may be substituted. Rule 27(a) states, in pertinent part:
If a party dies after an appeal is granted, or while a proceeding is otherwise pending in the Supreme Court, the personal representative of the deceased party may be substituted as a party on motion filed by the representative or by any party with the Clerk.... If the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the Court may direct....
In the present case, Mr. Wingrove died after his appeal was granted. His widow filed a motion to be substituted as a party. Based on Rule 27(a), Rules of Appellate Procedure, we find that when a claimant in a Workers' Compensation case dies after an appeal is granted, or while a proceeding is otherwise pending in this Court, a dependent or, if appropriate, the personal representative of the deceased claimant may be substituted as a party on motion filed by the representative or by any party with the Clerk. A dependent may be substituted for a deceased claimant in a Workers' Compensation case because W. Va.Code 23-4-6 [1999] limits the payment of compensation benefits to the dependents of the deceased claimant. W. Va.Code 23-4-6(1) [1999] provides, in pertinent part:
Compensation, either temporary total or permanent partial, under this section shall be payable only to the injured employee and the right thereto shall not vest in his or her estate, except that any unpaid compensation which would have been paid or payable to the employee up to the time of his or her death, if he or she had lived, shall be paid to the dependents of such injured employee if there be such dependents at the time of death.
A similar restriction is found in W. Va.Code 23-4-6(g) [1999] which states, in pertinent part:
Should a claimant to whom has been made a permanent partial award die from sickness or noncompensable injury, the unpaid balance of such award shall be paid to claimant's dependents as defined in this chapter, if any; such payment to be made in the same installments that would have been paid to claimant if living: Provided, That no payment shall be made to any surviving spouse of such claimant after his or her remarriage, and that this liability shall not accrue to the estate of such claimant and shall not be subject to any debts of, or charges against, such estate.
See, Ashworth v. Workmen's Compensation Comm'r, 150 W.Va. 537, 148 S.E.2d 364 (1966) ().
Neither W. Va.Code 23-4-6(l) nor (g) [1999] address compensation payable because of an award of permanent total disability. Workers' Compensation rights and resultant remedies are statutory and in order to ascertain the availability and scope of benefits, this Court looks to the plain meaning to ascertain the legislature's intention. Syl. pt. 6, State ex. rel. ACF Industries, Inc. v. Vieweg, 204 W.Va. 525, 514 S.E.2d 176 (1999).
Although these Code provisions specifically address permanent partial and temporary total disability awards, the legislature's intention is plainly to limit payment of any type of compensation award, including permanent total disability payments, to the dependents of a deceased claimant. We hold that the right to payment of any type of compensation award, permanent partial disability, temporary total disability or permanent total disability, which was awarded during the lifetime of the claimant and which would have been payable to the claimant, does not vest in the claimant's estate, but does vest in the dependents of the claimant, if there are dependents at the time of death.
In this case, we find that the substitution of Mrs. Wingrove was proper under Rule 27(a), Rules of Appellate Procedure. The payment of any compensation awarded during the lifetime of Mr. Wingrove which would have been payable to him, would vest in his dependents, including his dependent widow.
Having determined that the Rules of Appellate Procedure govern the substitution of the parties in an appeal pending before this Court, and that the...
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Martin v. Workers Compensation Div.
...death[.]" Id., 166 W. Va. at 301, 273 S.E.2d at 591. We recently dealt with a similar issue in the case of Wingrove v. Workers' Compensation Div., 208 W.Va. 80, 538 S.E.2d 378 (2000). In Wingrove, another coal miner, Mr. Wingrove, had filed a workers' compensation claim, but died before the......
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Lambert v. WORKERS'COMPENSATION DIV.
...Syl. pt. 2, Young. Most recently, this Court addressed the issue of the onset date for a PTD award in Wingrove v. Workers' Compensation Division, 208 W.Va. 80, 538 S.E.2d 378 (2000), overruled, in part, on other grounds by Martin v. Workers Comp. Div., 210 W.Va. 270, 557 S.E.2d 324 (2001). ......