Re: Petition for Attorney Fees and Costs Sandra Cassella v. Mylan Pharmaceuticals

• Court: West Virginia Supreme Court
• Decided: November 18, 2014
• Docket: 11-1503
• Status: Separate

Opinion

11-1503 — Cassella v. Mylan Pharmaceuticals, Inc. FILED November 18, 2014 RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

Justice Ketchum, dissenting: OF WEST VIRGINIA

The initial award denied the claimant her requested medical treatment. The denial

was issued on June 25, 2010. Thereafter, a statute became effective on July 12, 2013, which

allows claimants to recover attorney fees and costs if the claimant obtains a reversal of the initial

denial. On November 25, 2013, the West Virginia Supreme Court reversed the denial of medical

treatment.

The claimant now seeks the recovery of attorney fees and costs based upon the

statute that became effective after the claimant filed an application for benefits and after the

initial order or award denied medical treatment. It is clear that the law in effect at the time of the

initial order or award controls. It controls whether the award was favorable or unfavorable to the

claimant. Wampler Foods, Inc. v. Workers Compensation Division, 216 W.Va. 129, 602 S.E.2d

805 (2004). In Wampler, we held that a new statute begins to take effect after “any award on the

litigated issue,” not the final award. In Hicks v. West Virginia Office of Ins. Com’n., 2012 WL

2988816 (2012), we stated that Wampler Foods “makes clear that the law in effect at the time

that the first order was entered on the issue in litigation controls”.

The majority opinion misconstrues Wampler and fails to include the words “any”

or “first” when discussing the word “award.” The law in effect when the first award denied

medical treatment did not provide for the recovery of attorney fees and costs. Therefore, I

dissent.