BROTHERTON, Justice:
In this mandamus proceeding, involving six consolidated workers’ compensation claims, the Court is asked to review and modify, clarify, or reverse its decision in Brogan v. Workers’ Compensation Comm’r, 174 W.Va. 517, 327 S.E.2d 694 (1984), as to the Court’s interpretation of W.Va. Code § 23-4-8 (1985).
Each petitioner in the case presently under consideration claims to be aggrieved by the Brogan decision because the decision has prevented him from submitting evidence necessary to develop his case fully.1 Several petitioners additionally complain of long administrative delays and are distressed about the Brogan requirements relating to the exchange of medical reports.2
This Court is asked, among other things, to:
1. Modify the Brogan decision so as to permit a claimant to select more than one physician to examine and evaluate him for each medical examination conducted by a physician neutrally selected by the Commissioner; and
2. Reverse syl. pt. 5 of the Brogan decision setting out procedural requirements for exchange of medical reports, notice of objections to medical reports, and requests for examination of the medical expert, prior to an evidentiary hearing.
While we feel that the Brogan requirements relating to the exchange of medical reports, notice of objections to medical reports, and requests for examination of the medical expert prior to an evidentiary hearing was a correct decision and one necessary for the speedy and expeditious administration of justice, we are no longer convinced that the “one doctor rule” in Brogan, as it is being applied, is legally correct.
The Brogan decision grew out of a ruling of the Workers’ Compensation Appeal Board, affirming a ruling of the Workers’ Compensation Commissioner, reducing the claimant’s permanent partial disability award from 20% to 15%. Mr. Brogan, the claimant, was upset over the number of medical evaluations he was required to undergo in order to resolve his claim and [488]*488asked this Court to limit the number of evaluations required of a claimant. This Court, persuaded by Mr. Brogan’s arguments, adopted the rule set forth in syl. pt. 1 of the Brogan decision (see note 1, supra) and held that W.Va. Code § 23-4-8 (1985) limited the claimant and the employer to one additional medical evaluation after the Commissioner had referred the claimant out for an independent evaluation.
The petitioners now claim that this holding was incorrect and that the Commissioner’s memoranda of procedural requirements dated February 8, 1985, and May 6, 1985, designed to implement the Brogan decision compound the problem. After carefully considering the parties’ briefs and the law relating to the question, it is apparent that our decision in Brogan requires clarification.
I.
In interpreting § 23-4-8, the Brogan decision confined its inquiry to the first paragraph of that section, dealing with the initial determination of the proper award for a claimant's injury, to-wit, temporary total disability payment, or claims not in litigation. See Brogan, supra, 174 W.Va. at 520-21, 327 S.E.2d at 698. In such cases, the Commissioner refers the claimant to a single physician for an examination and, if the claimant or the employer so desired, he, too, might require the claimant to be examined and evaluated a single time. The Brogan decision was correct to the extent that it applied the one-doctor rule to claims not in litigation.
Brogan was incorrect, however, in its application of the first paragraph of § 23-4-8 to claims in litigation.3 The second paragraph of § 23-4-8 deals with the evaluation procedure of Compensation claims in litigation:
Where the claimant is required to undergo a medical examination or examinations by a physician or physicians selected by the employer, as aforesaid or in connection with any claim which is in litigation, the employer shall reimburse the claimant for loss of wages, and reasonable traveling and other expenses in connection with such examination or examinations, not to exceed the expenses paid when a claimant is examined by a physician or physicians selected by the commissioner, (emphasis added)
It is clear from reading the second paragraph of W.Va. Code § 23-4-8 that by use of the plural “examinations” and “physicians” the legislature intended that the employer be entitled to more than one medical examination by more than one physician as selected by the employer.4 In interpreting a statute, each word of the statute should be given some effect, and if undefined will be given its common, ordinary, accepted meaning. See, e.g., Wooddell v. Dailey, 160 W.Va. 65, 68, 230 S.E.2d 466, 469 (1976). The phrase “examination or examinations” unambiguously allows for one or more examinations. If the legislature had intended for the claimant to be examined only once, they would not have used the plural nouns “examinations” and “physicians. ” It is implied, of course, that if the employer is entitled to more than one medical examination that the claimant is also entitled to more than one medical examination.
The right of the claimant and the employer to have a number of medical examinations is further strengthened when W.Va. Code § 23-4-7a (1985) (which deals with monitoring of temporary total disability claims and a procedural requirement for review and evaluation, if any, for permanent partial disability) is read in pari [489]*489materia with § 23-4-8.5 Code § 23-4-7a(e), in support of § 23-4-8, provides that “[t]he provisions of this section are in addition to and are in no way in derogation of the power and authority vested in the Commissioner by other provisions of this chapter or vested in the employer to have a claimant examined by a physician or physicians of its selection ...” Again, the use of the plural “physicians” indicates multiple examinations are contemplated. We, therefore, hold that where a Workers’ Compensation claim is in litigation, both the employer and the claimant are entitled to a reasonable number of medical examinations,6 and we modify Brogan accordingly.
II.
While the petitioners seek a reinterpretation or reversal of Brogan as to the number of medical examinations the claimant and employer may request, and a reversal of syl. pt. 5 in Brogan, the underlying relief sought by the claimants is a-semblance of order in the procedures which allow for endless continuances without just cause shown, denying the claimant his right to a speedy and expeditious determination of his claim pursuant to the policy as set forth in W.Va. Code § 23-5-3a (1985),7 and syl. pt. 1 of Workman v. Workmen’s Compensation Comm’r, 160 W.Va. 656, 236 S.E.2d 236 (1977).
Brogan attempted to grant the claimant some relief in syl. pt.
Free access — add to your briefcase to read the full text and ask questions with AI
BROTHERTON, Justice:
In this mandamus proceeding, involving six consolidated workers’ compensation claims, the Court is asked to review and modify, clarify, or reverse its decision in Brogan v. Workers’ Compensation Comm’r, 174 W.Va. 517, 327 S.E.2d 694 (1984), as to the Court’s interpretation of W.Va. Code § 23-4-8 (1985).
Each petitioner in the case presently under consideration claims to be aggrieved by the Brogan decision because the decision has prevented him from submitting evidence necessary to develop his case fully.1 Several petitioners additionally complain of long administrative delays and are distressed about the Brogan requirements relating to the exchange of medical reports.2
This Court is asked, among other things, to:
1. Modify the Brogan decision so as to permit a claimant to select more than one physician to examine and evaluate him for each medical examination conducted by a physician neutrally selected by the Commissioner; and
2. Reverse syl. pt. 5 of the Brogan decision setting out procedural requirements for exchange of medical reports, notice of objections to medical reports, and requests for examination of the medical expert, prior to an evidentiary hearing.
While we feel that the Brogan requirements relating to the exchange of medical reports, notice of objections to medical reports, and requests for examination of the medical expert prior to an evidentiary hearing was a correct decision and one necessary for the speedy and expeditious administration of justice, we are no longer convinced that the “one doctor rule” in Brogan, as it is being applied, is legally correct.
The Brogan decision grew out of a ruling of the Workers’ Compensation Appeal Board, affirming a ruling of the Workers’ Compensation Commissioner, reducing the claimant’s permanent partial disability award from 20% to 15%. Mr. Brogan, the claimant, was upset over the number of medical evaluations he was required to undergo in order to resolve his claim and [488]*488asked this Court to limit the number of evaluations required of a claimant. This Court, persuaded by Mr. Brogan’s arguments, adopted the rule set forth in syl. pt. 1 of the Brogan decision (see note 1, supra) and held that W.Va. Code § 23-4-8 (1985) limited the claimant and the employer to one additional medical evaluation after the Commissioner had referred the claimant out for an independent evaluation.
The petitioners now claim that this holding was incorrect and that the Commissioner’s memoranda of procedural requirements dated February 8, 1985, and May 6, 1985, designed to implement the Brogan decision compound the problem. After carefully considering the parties’ briefs and the law relating to the question, it is apparent that our decision in Brogan requires clarification.
I.
In interpreting § 23-4-8, the Brogan decision confined its inquiry to the first paragraph of that section, dealing with the initial determination of the proper award for a claimant's injury, to-wit, temporary total disability payment, or claims not in litigation. See Brogan, supra, 174 W.Va. at 520-21, 327 S.E.2d at 698. In such cases, the Commissioner refers the claimant to a single physician for an examination and, if the claimant or the employer so desired, he, too, might require the claimant to be examined and evaluated a single time. The Brogan decision was correct to the extent that it applied the one-doctor rule to claims not in litigation.
Brogan was incorrect, however, in its application of the first paragraph of § 23-4-8 to claims in litigation.3 The second paragraph of § 23-4-8 deals with the evaluation procedure of Compensation claims in litigation:
Where the claimant is required to undergo a medical examination or examinations by a physician or physicians selected by the employer, as aforesaid or in connection with any claim which is in litigation, the employer shall reimburse the claimant for loss of wages, and reasonable traveling and other expenses in connection with such examination or examinations, not to exceed the expenses paid when a claimant is examined by a physician or physicians selected by the commissioner, (emphasis added)
It is clear from reading the second paragraph of W.Va. Code § 23-4-8 that by use of the plural “examinations” and “physicians” the legislature intended that the employer be entitled to more than one medical examination by more than one physician as selected by the employer.4 In interpreting a statute, each word of the statute should be given some effect, and if undefined will be given its common, ordinary, accepted meaning. See, e.g., Wooddell v. Dailey, 160 W.Va. 65, 68, 230 S.E.2d 466, 469 (1976). The phrase “examination or examinations” unambiguously allows for one or more examinations. If the legislature had intended for the claimant to be examined only once, they would not have used the plural nouns “examinations” and “physicians. ” It is implied, of course, that if the employer is entitled to more than one medical examination that the claimant is also entitled to more than one medical examination.
The right of the claimant and the employer to have a number of medical examinations is further strengthened when W.Va. Code § 23-4-7a (1985) (which deals with monitoring of temporary total disability claims and a procedural requirement for review and evaluation, if any, for permanent partial disability) is read in pari [489]*489materia with § 23-4-8.5 Code § 23-4-7a(e), in support of § 23-4-8, provides that “[t]he provisions of this section are in addition to and are in no way in derogation of the power and authority vested in the Commissioner by other provisions of this chapter or vested in the employer to have a claimant examined by a physician or physicians of its selection ...” Again, the use of the plural “physicians” indicates multiple examinations are contemplated. We, therefore, hold that where a Workers’ Compensation claim is in litigation, both the employer and the claimant are entitled to a reasonable number of medical examinations,6 and we modify Brogan accordingly.
II.
While the petitioners seek a reinterpretation or reversal of Brogan as to the number of medical examinations the claimant and employer may request, and a reversal of syl. pt. 5 in Brogan, the underlying relief sought by the claimants is a-semblance of order in the procedures which allow for endless continuances without just cause shown, denying the claimant his right to a speedy and expeditious determination of his claim pursuant to the policy as set forth in W.Va. Code § 23-5-3a (1985),7 and syl. pt. 1 of Workman v. Workmen’s Compensation Comm’r, 160 W.Va. 656, 236 S.E.2d 236 (1977).
Brogan attempted to grant the claimant some relief in syl. pt. 5 by stressing that W.Va. Code § 23-4-8 requires the exchange of medical reports, the admission of the medical reports, and reply by the parties as to their objection to the reports or their desire to cross-examine the medical experts. This is really the heart of Brogan and apparently the Commissioner has ignored it in her procedural rules because it would appear that numerous continuances were granted in the six cases herein, without any just cause being shown. This Court, in Scites v. Huffman, 174 W.Va. 191, 324 S.E.2d 152, 156 (1984), restated what had already been said in Brogan by holding that long delays in processing claims were not consistent with the intent of the legislature in the enactment of compensation legislation, nor does it benefit the claimant. The Court in Scites restated the sections of the Workers’ Compensation Act which deal with mandatory procedural requirements and mandatory processing requirements, with the hope that the Commissioner would bring some order out of the morass that would expedite the claimant’s claim and require the lawyers, who seem to be in control of procedural guidelines for the Commission, to have all of their medical examinations completed within a specified period of time, and if the medical expert was to testify, the direct and cross-examination would all be completed in one day and continuances would not be granted for additional examinations [490]*490once the period had passed when examinations should have been conducted.
It is obvious from reading the records in the six cases involved in the present appeal and other claimants’ cases that come before this Court that there are no criteria for continuances and supplemental hearings. All that is necessary is simply for the lawyer of one of the parties to request that the claim be continued until the next docket, and the hearing examiner seldom makes inquiry as to the reason for the continuance other than the fact that either the lawyer for the claimant or the lawyer for the employer is not prepared to go forward at that time. Despite the general policy in compensation cases of liberality in procedural, technical and substantive matters, W.Va. Code § 23-5-3a (1985) states: “[T]he criteria for continuances and supplemental hearings ‘for good cause shown’ are to be strictly construed by the commissioner and his authorized representatives to prevent delay, in granting or denying continuances and supplemental hearings.” (emphasis added) Therefore, no continuances should be granted in a compensation case except where good cause is shown.
The Commissioner, in her answer, indicates she has created a blue ribbon committee consisting of lawyers for the claimant, lawyers for the employer, lawyers for the union, and lawyers for the Commissioner, to draft new practice and procedure regulations pursuant to the authority of the Commissioner under W.Va. Code §§ 23-1-13, 15 (1985). This Court applauds the Commissioner’s efforts to resolve the problems in the present system and stresses that these new rules should be drafted so as to end any unnecessary continuances. This Court, for the third time, as it did in Brogan, as it did in Scites, now affirms those decisions that have liberally construed W.Va. Code § 23-4-8 to require the exchange among the parties and the Commissioner of any and all medical reports that each might have, without waiting for an evidentiary hearing, and the requirement that the parties shall object in writing to the Commissioner as to the admissibility of a report and state their request for cross-examination of the medical expert. The submission of the reports and the request for direct and cross-examination of the medical experts must be promptly submitted to avoid the needless delays and the number of evidentiary hearings.
While our principal purpose in this opinion is to clarify the Brogan decision, our efforts would be meaningless if the Commissioner were not required to modify her procedural rules accordingly. Because the respondent has a mandatory duty to promulgate rules and regulations in accordance with decisions of this Court, see W.Va. Code § 23-1-15 (1985), Meadows v. Lewis, 172 W.Va. 457, 307 S.E.2d 625, 641-42 (1983), and mandamus will lie to compel a public officer to discharge a nondiscretionary duty, see syl. pt. 1, State ex rel. Bache & Co. v. Gainer, 154 W.Va. 499, 177 S.E.2d 10 (1970), this Court grants the petitioners’ prayer for a writ of mandamus against the respondent insofar as the respondent’s memorandum of February 8 and May 6 are in conflict with this opinion, with instructions to amend said memorandum to comply with this Court’s decision.
Writ granted as moulded.