Anderson v. Richardson

446 S.E.2d 710, 191 W. Va. 488, 1994 W. Va. LEXIS 108
CourtWest Virginia Supreme Court
DecidedJuly 8, 1994
DocketNo. 21772
StatusPublished
Cited by3 cases

This text of 446 S.E.2d 710 (Anderson v. Richardson) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. Richardson, 446 S.E.2d 710, 191 W. Va. 488, 1994 W. Va. LEXIS 108 (W. Va. 1994).

Opinion

MILLER, Justice:

In this original proceeding in mandamus, we are asked to require Andrew N. Richardson, the Workers’ Compensation Commissioner, to perform certain mandatory duties contained in the Workers’ Compensation Act (Act), W.Va.Code, 23-1-1, et seq.

I.

One of the issues presented is the impact of the abolishment of W.Va.Code, 23-5-lj (1990), in 1993. This subsection authorized the Office of Judges to remand claims for permanent total disability benefits and second injury life awards to the Commissioner who then had 120 days to make a decision. We spoke about this procedure in Lyons v. Richardson, 189 W.Va. 157, 429 S.E.2d 44 (1993). Lyons was decided on March 16, 1993, and on April 8, 1993, the legislature abolished W.Va.Code, 23-5-lj, and made other changes to the Act. 1993 W.Va.Acts ch. 171.

After abolishing subsection lj, the legislature enacted W.Va.Code, 23-4-24(c) (1993),1 which took away from the Office of Judges the jurisdiction to initially hear permanent total disability claims and required the claims to be first submitted to the Commissioner. Following the adoption of W.Va.Code, 23-4-24(c), the Commissioner issued an internal memorandum dated April 18, 1993, advising that all claimants having cases for permanent total disability benefits pending before the Commissioner on remand under W.Va.Code, 23-5-lj, should be notified that this provision was abolished. They also should be informed that the 120-day limitation will not apply.

The petitioners are claimants who had permanent total disability and second injury life award claims pending before the Commissioner on remand under W.Va.Code, 23-5-lj. They claim that the Commissioner’s memorandum applies W.Va.Code, 23-4-24(c), retroactively, which is contrary to our interpretation of amendments to the Act. In a variety of contexts, we have held that provisions of the Act which narrow procedural benefits [490]*490that were formerly afforded to claimants will not be given retroactive effect. In Fucillo v. Workers’ Compensation Commissioner, 180 W.Va. 595, 378 S.E.2d 687 (1988), we held that recent amendments to the Act which made time periods for objections, protests, or appeals under the Act mandatory and jurisdictional would be limited to eases arising after the effective date of those statutory amendments.2

In Anderson v. State Workers’ Compensation Commissioner, 174 W.Va. 406, 327 S.E.2d 385 (1985), we found that a claimant who filed his claim in 1974 was entitled to the more liberal amendments enacted in 1976 to W.Va.Code, 23-4-14, and stated in Syllabus Point 1:

“An employee involved in a workers’ compensation case in litigation will receive the benefit of procedural statutory changes favorable to the employee wherever possible. Pnakovich v. State Workmen’s Compensation Comm’r, 163 W.Va. 583, 592, 259 S.E.2d 127, 132 (1979).”

Likewise, in Syllabus Point 3 of Boyd v. Merritt, 177 W.Va. 472, 354 S.E.2d 106 (1986), we applied the liberality rule and extended the more liberal legislative rules that were enacted by the legislature after the claim was filed, stating:

“When the Workers’ Compensation Commissioner promulgates an emergency rule affecting the amount to which a claimant for workers’ compensation benefits is entitled, and the legislature subsequently enacts a more liberal legislative rule superseding the emergency rule, the Workers’ Compensation Appeal Board must, under the liberality rule, apply the legislative rule to all pending claims.”

Thus, we conclude that the Commissioner’s internal memorandum of April 18, 1993, which eliminated the 120-day rule to decide claims for permanent total disability benefits and second injury life awards which were remanded to the Commissioner pursuant to W.Va.Code, 23 — 5—lj, is contrary to our law. Consequently, we hold that the Commissioner is required to apply the provisions of W.Va.Code, 23 — 5—lj, to all cases that were remanded to the Commissioner before April 8, 1993, the date this subsection was abolished.

II.

A.

The petitioners also contend that the Commissioner failed to comply with certain provisions of an agreed order which was approved by this Court on July 29,1993, in a mandamus proceeding. Some of the petitioners in that case are parties in this case. Among the purposes of that proceeding was to require the Commissioner to enter certain protestable orders in the petitioners’ compensation claims. Part of the relief requested was to require the Commissioner to adopt under his statutory rule-making power procedural rules for handling claims for permanent total disability benefits and second injury life awards and rules for a comprehensive rehabilitation program, as authorized in W.Va.Code, 23-4-9 (1990). Both the Commissioner and the petitioners agreed to the following language in the order:

“(4) [T]he respondent, on or before the 15th day of January, 1994, shall file with this Court reasonable rules of procedure, establishing (a) times for completion of procedural steps, (b) the proof and evidence required for entitlement to benefits, and (e) the method and manner in which decisions are to be rendered, including protestable orders regarding a claimant’s entitlement to permanent total disability or second injury life awards; (5) the respondent, on or before the 15th day of January, • 1994, shall file with this Court rules promulgated to develop a comprehensive rehabilitation program which will assist injured workers to return to suitable gainful [491]*491employment following an injuryf.]”3

With regard to the Commissioner’s Legislative Rules on Vocational and Physical Rehabilitation, we decline to address the petitioners’ objections. While it is true that the agreed order directed the Commissioner to file the rules with this Court, it was done ■with the hope that some agreement could be reached. In fact, the Commissioner already has drafted and filed the vocational and physical rehabilitation rules with the Secretary of State’s Office. These rules became effective on July 1, 1994. As we point out in the next section, there are opportunities afforded for comment by interested parties as to the rules, and we decline to intervene in this administrative process.

B.

The petitioners claim that the Commissioner’s “POLICY STATEMENT FOR THE HANDLING OF REQUESTS FOR PERMANENT TOTAL DISABILITY AWARDS,” which deals with the procedural aspects of handling permanent total disability claims, including second injury life awards, is so vague as to any time limits for handling claims that it will do nothing to reheve the interminable delays in processing workers’ compensation claims. The petitioners also contend that the policy statement appears to violate specific procedural rights given to claimants under W.Va.Code, 23-5-la (1990).

We note, however, that these rules still are in the process of being revised. If the petitioners desire to comment and urge changes to the proposed rules, they can do so under the State Administrative Procedures Act, W.Va.Code, 29A-1-1, et seq.

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Related

State Ex Rel. McKenzie v. Smith
569 S.E.2d 809 (West Virginia Supreme Court, 2002)
State ex rel. Billy Ray C. v. Skaff
459 S.E.2d 921 (West Virginia Supreme Court, 1995)

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Bluebook (online)
446 S.E.2d 710, 191 W. Va. 488, 1994 W. Va. LEXIS 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-richardson-wva-1994.