Davies v. WVA OFFICE OF INS. COM'R

708 S.E.2d 524
CourtWest Virginia Supreme Court
DecidedApril 1, 2011
Docket35550
StatusPublished

This text of 708 S.E.2d 524 (Davies v. WVA OFFICE OF INS. COM'R) 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
Davies v. WVA OFFICE OF INS. COM'R, 708 S.E.2d 524 (W. Va. 2011).

Opinion

708 S.E.2d 524 (2011)

Timothy E. DAVIES, Appellant
v.
WEST VIRGINIA OFFICE OF the INSURANCE COMMISSIONER, and
Alcan Rolled Products-Ravenswood, LLC, Appellees.

No. 35550.

Supreme Court of Appeals of West Virginia.

Submitted February 8, 2011.
Decided April 1, 2011.

*526 Edwin H. Pancake, Charleston, WV, for the Appellant.

H. Toney Stroud, Steptoe & Johnson PLLC, Charleston, WV, for the Appellee, Alcan Rolled Products-Ravenswood, LLC.

DAVIS, Justice:

In this appeal from a decision of the Workers' Compensation Board of Review (hereinafter referred to as "the Board of Review"), Timothy E. Davies, claimant below and appellant (hereinafter referred to as "Mr. Davies"), appeals his award of 2% permanent partial disability (hereinafter referred to as "PPD") for carpal tunnel syndrome. Mr. Davies contends that a proper application of the relevant Workers' Compensation rule, W. Va.C.S.R. § 85-20-64.5 (2004), results in his entitlement to a 6% PPD award. We find that W. Va.C.S.R. § 85-20-64.5 is invalid as it applies in this case. Therefore, we reverse the 2% PPD award granted by the Board of Review, and reinstate the 6% PPD award granted to Mr. Davies by the Workers' Compensation Office of Judges.

I.

FACTUAL AND PROCEDURAL HISTORY

Mr. Davies, a millwright employed by Alcan Rolled Products—Ravenswood, LLC, the appellee (hereinafter referred to as "Alcan"), developed carpal tunnel syndrome in his right wrist in the course of and resulting from his employment. His subsequently-filed Workers' Compensation claim was ruled compensable on June 5, 2007. Mr. Davies underwent surgery on September 5, 2007. After a period of recuperation and physical therapy, he returned to work on November 19, 2007. The Claims Administrator for Alcan, who is self-insured, referred Mr. Davies to Dr. Paul Bachwitt for a PPD evaluation. Dr. Bachwitt examined Mr. Davies on January 3, 2008, and concluded that he had reached his maximum medical improvement. Applying the American Medical Association's Guides to the Evaluation of Permanent Impairment (4th ed.1993)[1] (hereinafter referred to as "the AMA Guides Fourth"), Dr. Bachwitt determined that Mr. Davies suffered a 6% wholeperson impairment as a result of his carpal tunnel syndrome. Dr. Bachwitt used Table 16 of the AMA Guides Fourth to calculate Mr. Davies' impairment rating.[2] However, Dr. Bachwitt then interpreted paragraph 64.5 of the Workers' Compensation rule titled "Ranges of partial disability awards for common injuries and diseases." W. Va. C.S.R. § 85-20-64.5.[3] This rule limits the *527 PPD award that may be granted to a claimant for carpal tunnel syndrome impairment to 0%-6% for each affected hand. Dr. Bachwitt interpreted this rule, and concluded that it allowed awards of 1% to 2% for mild carpal tunnel syndrome, 3% to 4% for moderate carpal tunnel syndrome, and 5% to 6% for severe carpal tunnel syndrome. Because Mr. Davies' 6% whole person impairment under the AMA Guides Fourth was indicative of only mild carpal tunnel syndrome, Dr. Bachwitt recommended he be awarded 2% PPD pursuant to W. Va.C.S.R. § 85-20-64.5.

Accordingly, by order entered January 21, 2008, Alcan's claims administrator granted Mr. Davies a 2% PPD award for his carpal tunnel syndrome. Mr. Davies appealed the award. The Workers' Compensation Office of Judges (hereinafter referred to as "the OOJ") reversed. The OOJ found that W. Va.C.S.R. § 85-20-64.5 contained no language to support the interpretation given it by Dr. Bachwitt. By order entered dated January 29, 2009, the OOJ granted Mr. Davies a 6% PPD award based upon Dr. Bachwitt's conclusion, prior to his application of W. Va.C.S.R. § 85-20-64.5, that Mr. Davies had sustained a 6% whole-person impairment under Table 16 of the AMA Guides Fourth.[4] Alcan then appealed. By order dated September 2, 2009, the Board of Review reversed the OOJ and reinstated the claims administrator's award of 2% PPD. It is from this order that Mr. Davies now appeals.

II.

STANDARD OF REVIEW

The general standard for this Court's review of decisions made by the Board of Review is set out in W. Va.Code § 23-5-15(b) and (d) (2005) (Repl.Vol.2010), which state:

(b) In reviewing a decision of the board of review, the Supreme Court of Appeals shall consider the record provided by the board and give deference to the board's findings, reasoning and conclusions[.]
....
(d) If the decision of the board effectively represents a reversal of a prior ruling of either the commission or the Office of Judges that was entered on the same issue in the same claim, the decision of the board may be reversed or modified by the Supreme Court of Appeals only if the decision is in clear violation of constitutional or statutory provisions, is clearly the result of erroneous conclusions of law, or is so clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor of the board's findings, reasoning and conclusions, there is insufficient support to sustain the decision. The court may not conduct a de novo re-weighing of the evidentiary record. If the court reverses or modifies a decision of the board pursuant to this subsection, it shall state with specificity the basis for the reversal or modification and the manner in which the decision of the board clearly violated constitutional or statutory provisions, resulted from erroneous conclusions of law, or was so clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor of the board's findings, reasoning and conclusions, there is insufficient support to sustain the decision.

*528 This statutorily-designated standard for our review is in accord with this Court's prior holding that, "[w]hen it appears from the proof upon which the [Workers' Compensation Board of Review] acted that its finding was plainly wrong[,] an order reflecting that finding will be reversed and set aside by this Court." Syl. pt. 5, Bragg v. State Workmen's Comp. Comm'r, 152 W.Va. 706, 166 S.E.2d 162 (1969).

Finally, to the extent that our resolution of this matter requires us to interpret provisions contained in the West Virginia Code of State Rules, our review is de novo. "Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review." Syl. pt. 1, Appalachian Power Co. v. State Tax Dep't of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995). See also Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) ("Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review."). With the forgoing standards in mind, we will address the issue raised in this appeal.

III.

DISCUSSION

Mr. Davies argues that the Board of Review erred in reversing the OOJ's decision that granted him a 6% PPD award. According to Mr. Davies, the OOJ correctly concluded that Dr. Bachwitt improperly interpreted W. Va.C.S.R.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Chrystal R.M. v. Charlie A.L.
459 S.E.2d 415 (West Virginia Supreme Court, 1995)
State v. Kerns
394 S.E.2d 532 (West Virginia Supreme Court, 1990)
Farley v. Buckalew
414 S.E.2d 454 (West Virginia Supreme Court, 1992)
T. Weston, Inc. v. Mineral County
638 S.E.2d 167 (West Virginia Supreme Court, 2006)
Peters v. Rivers Edge Mining, Inc.
680 S.E.2d 791 (West Virginia Supreme Court, 2009)
Ohio County Commission v. Manchin
301 S.E.2d 183 (West Virginia Supreme Court, 1983)
Williamson v. Greene
490 S.E.2d 23 (West Virginia Supreme Court, 1997)
Banker v. Banker
474 S.E.2d 465 (West Virginia Supreme Court, 1996)
State Ex Rel. Callaghan v. W. Va. Civil Service Commission
273 S.E.2d 72 (West Virginia Supreme Court, 1980)
Deller v. Naymick
342 S.E.2d 73 (West Virginia Supreme Court, 1986)
In Re Estate of Resseger
161 S.E.2d 257 (West Virginia Supreme Court, 1968)
Appalachian Power Co. v. State Tax Department
466 S.E.2d 424 (West Virginia Supreme Court, 1995)
Newhart v. Pennybacker
200 S.E. 350 (West Virginia Supreme Court, 1938)
Bragg v. State Workmen's Compensation Commissioner
166 S.E.2d 162 (West Virginia Supreme Court, 1969)
Simpson v. West Virginia Office of the Insurance Commissioner
678 S.E.2d 1 (West Virginia Supreme Court, 2009)
Davies v. Wv Office of the Insurance Commission, 35550 (w.va. 4-1-2011)
708 S.E.2d 524 (West Virginia Supreme Court, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
708 S.E.2d 524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davies-v-wva-office-of-ins-comr-wva-2011.