S. F. Raymond Smith, Esq.
Rundle & Rundle
Pineville, West Virginia
Attorney for Appellant Repass

Don M. Stacy, Esq.
Reginald D. Henry, Esq.
Beckley, West Virginia
Attorneys for Appellant Bower

Darrell V. McGraw, Jr.
Attorney General
Sandra Keech
Assistant Attorney General
Charleston, West Virginia
Attorneys for Appellee Workers'
Compensation Division

Howard G. Salisbury, Esq.
Kay, Casto & Chaney, PLLC
Charleston, West Virginia
Attorney for Appellee USX Corporation/
U. S. Steel Mining Company

John W. Woods, III, Esq.
Tracy L. Webb, Esq.
Bowles Rice McDavid Graff & Love
Charleston, West Virginia
Attorneys for Appellee Maple Meadow
Mining Company

Timothy J. Huffman, Esq.
John L. McClaugherty, Esq.
Jackson & Kelly
Charleston, West Virginia
Attorneys for Amicus Curiae West
Virginia Chamber of Commerce

Sue Anne Howard, Esq.
Wheeling, West Virginia
Attorney for Amici Curiae West Virginia
Trial Lawyers Association and West
Virginia AFL-CIO

William D. Turner, Esq.
Crandall, Pyles, Haviland & Turner, LLP
Lewisburg, West Virginia
Attorney for Amicus Curiae West Virginia
Trial Lawyers Association

Thomas P. Maroney, Esquire
Charleston, West Virginia
Attorney for Amicus Curiae West Virginia
AFL-CIO

JUSTICE McGRAW delivered the Opinion of the Court.
CHIEF JUSTICE DAVIS and JUSTICE MAYNARD dissent
and reserve the right to file dissenting opinions.

        1.    “'The Workmen's Compensation Law is remedial in its nature, and must be given a liberal construction to accomplish the purpose intended.' Syl. pt. 3, McVey v. Chesapeake & Potomac Telephone Co., 103 W. Va. 519, 138 S.E. 97 (1927) (citation omitted).” Syl. pt. 1, Plummer v. Workers' Compensation Division, 209 W. Va. 710, 551 S.E.2d 46 (2001).

        2.    “'[The Workers' Compensation Act] requir[es] the state compensation commissioner in administering the workmen's compensation fund, to ascertain the substantial rights of the claimants in such manner as will “carry out justly and liberally the spirit of the act” unrestricted by technical and formal rules of procedure . . . .' Syllabus, in part, Culurides v. Ott, 78 W. Va. 696, 90 S.E. 270 (1916) (citation omitted).” Syl. pt. 2, Plummer v. Workers' Compensation Division, 209 W. Va. 710, 551 S.E.2d 46 (2001).

        3.    The ultimate responsibility for the fiscal health of the West Virginia Workers' Compensation system rests with the Legislature. Balancing the conflicting goals of minimizing premiums while providing full and fair compensation to injured workers is the exclusive province of our publicly elected legislators, and is not to be invaded by the Commissioner, or the Courts.

        4.    “Any rules or regulations drafted by an agency must faithfully reflect the intention of the Legislature, as expressed in the controlling legislation. Where a statute contains clear and unambiguous language, an agency's rules or regulations must give that language the same clear and unambiguous force and effect that the language commands in the statute.” Syl. pt. 4, Maikotter v. University of West Virginia Bd. of Trustees/West Virginia Univ., 206 W. Va. 691, 527 S.E.2d 802 (1999).

        5.    “It is fundamental law that the Legislature may delegate to an administrative agency the power to make rules and regulations to implement the statute under which the agency functions. In exercising that power, however, an administrative agency may not issue a regulation which is inconsistent with, or which alters or limits its statutory authority.” Syl. pt 3, Rowe v. W. Va. Dept. of Corrections, 170 W. Va. 230, 292 S.E.2d 650 (1982).

        6.    “The judiciary is the final authority on issues of statutory construction, and we are obliged to reject administrative constructions that are contrary to the clear language of a statute.” Syl. pt. 5, CNG Transmission Corp. v. Craig, ___ W. Va. ___, ___ S.E.2d ___ (No. 29996, Apr. 26, 2002).

        7.    “Judicial review of an agency's legislative rule and the construction of a statute that it administers involves two separate but interrelated questions, only the second of which furnishes an occasion for deference. In deciding whether an administrative agency's position should be sustained, a reviewing court applies the standards set out by the United States Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The court first must ask whether the Legislature has directly spoken to the precise question at issue. If the intention of the Legislature is clear, that is the end of the matter, and the agency's position only can be upheld if it conforms to the Legislature's intent. No deference is due the agency's interpretation at this stage.” Syl. pt 3, Appalachian Power Co. v. State Tax Dept. of West Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995).

        8.    A rule promulgated by the Workers' Compensation Division that mandates the use of a non-legislatively created guide for the examination of certain injuries is valid only to the extent that the mandated guide does not conflict with the specific dictates of the Legislature as expressed by statute. Those aspects of the mandated guide that are in conflict are invalid.

        9.    Because the Diagnosis-Related Estimate Model for the examination of spine injury claims, as set forth in The American Medical Association's, Guides to the Evaluation of Permanent Impairment, Fourth Edition (1993), cannot be reconciled with several specific workers compensation statutes promulgated by the West Virginia Legislature, any medical examination conducted in accordance with that model is invalid and unreliable.

McGraw, Justice:

        Two workers' compensation claimants who suffered back injuries disagreed with the initial disability ratings granted them by the Workers' Compensation Division and appealed. In each case, the Office of Judges found that examinations conducted under one examination model were unreliable, and granted the claimants higher disability ratings. The employer in each case appealed, and the Workers' Compensation Appeal Board found the questioned method of examination to be valid, and reinstated the original awards granted by the Workers' Compensation Division. The claimants appeal, arguing that the Office of Judges was correct in disregarding the questioned examination model because it is in conflict with our law. Because we concur with the logic of the Office of Judges, we reverse.

The Act is designed to compensate injured workers as speedily and expeditiously as possible in order that injured workers and those who depend upon them for support shall not be left destitute during a period of disability. The benefits of this system accrue both to the employer, who is relieved from common-law tort liability for negligently inflicted injuries, and to the employee, who is assured prompt payment of benefits.

Meadows v. Lewis, 172 W. Va. 457, 469, 307 S.E.2d 625, 638 (1983). In restating this principle, we are not unmindful of the perception that our system makes our state less attractive to some businesses. But it is for the Legislature, not the Commissioner, or the courts, to make the difficult and sometimes unpopular decisions necessary to fund the system or limit its expenses. The Commissioner must follow the commands of the Legislature as expressed by statute. In the absence of express statutory authority, it is not the Commissioner's duty to take major steps to limit compensation to deserving workers, or design systems that make recovery less likely. Indeed:

“[The Workers' Compensation Act] requir[es] the state compensation commissioner in administering the workmen's compensation fund, to ascertain the substantial rights of the claimants in such manner as will carry out justly and liberally the spirit of the act, unrestricted by technical and formal rules of procedure . . . .” Syllabus, in part, Culurides v. Ott, 78 W. Va. 696, 90 S.E. 270 (1916) (citation omitted);

Martin v. Workers Compensation Div., 210 W. Va. 270, 275, 557 S.E.2d 324, 329 (2001) (quoting syl. pt. 2, Plummer v. Workers' Compensation Division, 209 W. Va. 710, 551 S.E.2d 46 (2001)). This does not mean that any person claiming an injury should instantly be awarded the maximum possible compensation. We recognize that workers' compensation is not the equivalent of a welfare system.   (See footnote 3)  The command of the law that the workers' compensation process be “unrestricted by technical and formal rules of procedure” means that, if the statutes would provide a worker with compensation, the Commissioner cannot create barriers or hurdles that would prevent that recovery. If the system is not producing the desired results, then the Legislature can change the statute, and in so doing craft a solution suitable to a majority of the electorate. We recognize that the ultimate responsibility for the fiscal health of the West Virginia Workers' Compensation system rests with the Legislature. Balancing the conflicting goals of minimizing premiums while providing full and fair compensation to injured workers is the exclusive province of our publicly-elected legislators, and is not to be invaded by the Commissioner, or the Courts.

        And so bearing in mind that “although the rules and regulations governing the workers' compensation system in this state are necessarily detailed and complex, we must be careful to prevent those deserving of compensation from being thwarted by technicalities or procedural niceties,” Martin v. Workers Compensation Div., 210 W. Va. 270, 275, 557 S.E.2d 324, 329 (2001), we turn to an examination of the instant dispute.

        Before addressing the application of this publication to examinations of spinal injuries, we first explain how it is that this publication is at issue in the cases below. As we have discussed in previous cases, the Legislature made significant changes to the workers' compensation system in 1995.
On February 10, 1995, the West Virginia Legislature passed and enacted Committee Substitute for Senate Bill 250, which comprehensively revised numerous aspects of West Virginia workers' compensation law. The purported goal of these sweeping reforms envisioned ameliorating the workers' compensation fund's fiscal crisis and restoring its financial integrity. See State ex rel. Blankenship v. Richardson, 196 W. Va. 726, 729-31, 474 S.E.2d 906, 909-11 (1996).

State ex rel. ACF Industries, Inc. v. Vieweg, 204 W. Va. 525, 529, 514 S.E.2d 176, 180 (1999) (footnote omitted). Of specific importance to this case is that the Legislature altered the way in which one discovers the extent of an injured worker's permanent partial disability; under current law, one determines the level of permanent disability by first finding the worker's degree of whole body medical impairment. The Legislature also granted the Commissioner authority to establish standards for the determination of that impairment:

[T]he degree of permanent disability other than permanent total disability shall be determined exclusively by the degree of whole body medical impairment that a claimant has suffered. . . . The workers' compensation division shall adopt standards for the evaluation of claimants and the determination of a claimant's degree of whole body medical impairment. Once the degree of medical impairment has been determined, that degree of impairment shall be the degree of permanent partial disability that shall be awarded to the claimant.

W. Va. Code § 23-4-6(i) (1999).   (See footnote 5)  Of course the ultimate question being asked is, “how much, if any do we (the State) owe the injured worker?” Before 1995, our system took into account factors beyond medical impairment when making a determination about permanent partial disability. As Justice Starcher explained in a concurring opinion,

Prior to the Legislature's amendments in 1995, the Workers' Compensation Act distinguished between impairment, which is a medical question, and disability, which is a legal question. To determine impairment, a doctor would examine the claimant and render a scientific opinion regarding how much a claimant's physical functions were impaired by a work-related injury. The Workers' Compensation Commissioner would then determine disability by looking at the doctor's opinion on impairment, and mix that opinion with the evidence of the claimant's earning capacity, the effect of the impairment on the claimant's efficiency at work, and the effect of the impairment on the claimant's pursuit of normal everyday living. From a mix of these factors, the Commissioner would compute the claimant's percentage of permanent partial disability. The Commissioner's permanent partial disability award would, in theory, only partially take into account the doctor's determination of impairment.

    In 1995 the Legislature amended W. Va. Code, 23-4-6(i) to state that “the degree of permanent disability other than permanent total disability shall be determined exclusively by the degree of whole body medical impairment that a claimant has suffered.” This amendment altered the Workers' Compensation Act in two ways significant to this case. First, after 1995 doctors are to make impairment evaluations using a standardized, “whole body” impairment rating system--in other words, they are to use the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition (1993). Second, the Commissioner is to make permanent partial disability awards solely on the basis of the doctor's impairment evaluation. Put another way, the percentage of medical impairment now equals the percentage of permanent partial disability, and the Commissioner cannot take into consideration any other factors.

Wagner v. Workers' Compensation Div., 205 W. Va. 186, 191-92, 517 S.E.2d 283, 288-89 (1998) (per curiam) (Starcher J., concurring) (footnote omitted).

        Moreover, the Commissioner has equated an impairment rating conducted under this standard to be the equivalent of a disability rating for permanent impairment. The authors of The Guides themselves urge against any system that equates medical impairment with disability. As we noted in a case challenging the constitutionality of the 1995 changes:

See 85 CSR 16-3.4 (defining “permanent impairment” and “impairment,” according to the Guides, and indicating that “[a] claimant's degree of permanent whole body medical impairment is to be determined in keeping with the determination of whole person permanent impairment as set forth in the Guides.” Id., in relevant part.)

The exclusive use of the Guides for evaluation of impairment and, therefore, permanent partial disability, is not recommended by its author:

“The critical problem is that no formula is known by which knowledge about a medical condition can be combined with knowledge about other factors to calculate the percentage by which the employee's industrial use of the body is impaired. Accordingly, each commissioner or hearing official must come to a conclusion on the basis of assessment of the available medical and nonmedical information. The Guides may help resolve such a situation, but it cannot provide complete and definitive answers. Each administrative or legal system that uses permanent impairment as a basis for disability ratings should define its own means for translating knowledge about an impairment into an estimate of the degree to which the impairment limits the individual's capacity to meet personal, social, occupational, and other demands or to meet statutory requirements.

It must be emphasized and clearly understood that impairment percentages derived according to Guides criteria should not be used to make direct financial awards or direct estimates of disabilities.”

Id. at 1/4-1/5 (bold provided [in text of Guides]).

In light of the AMA's admonition against the exclusive use of its Guides for evaluation of permanent disability, we question the Commissioner's wisdom in adopting them.

State ex rel. Blankenship v. Richardson, 196 W. Va. 726, 735-36, n.13, 474 S.E.2d 906, 915- 16, n.13 (1996) (quoting Guides, Fourth, emphasis in original). While we still have our concerns about a system that makes a one-to-one correlation between impairment and disability, and while we continue to question the wisdom of employing the Guides, Fourth in a fashion contrary to the intent of the authors, neither issue is squarely before the Court today. What is before the Court, is whether the adoption of the Guides, Fourth as a mandatory set of instructions for performing an examination of a claimant with a spinal injury is consistent with our workers' compensation law.

        Pursuant to the W. Va. Code § 23-4-6(i) (1999), the Division   (See footnote 6)  issued a rule that established standards for determining an injured worker's degree of permanent impairment:

§85-16-4.    Adoption of Standards.

    4.1.    Except as provided for in section 6 of this rule, on and after the effective date of this rule all evaluations, examinations, reports, and opinions with regard to the degree of permanent whole body medical impairment which a claimant has suffered shall be conducted and composed in accordance with the “Guides to the Evaluation of Permanent Impairment,” (4th ed. 1993), as published by the American Medical Association. If in any particular claim, the examiner is of the opinion that the Guides or the section 6 substitutes cannot be appropriately applied or that an impairment guide established by a recognized medical speciality group may be more appropriately applied, then the examiner's report must document and explain the basis for that opinion. Deviations from the requirements of the Guides or the section 6 substitutes shall not be the basis for excluding evidence from consideration. Rather, in any such instance such deviations shall be considered in determining the weight that will be given to that evidence. An example of an acceptable recognized medical speciality group's own guides is the “Orthopaedic Surgeons Manual in Evaluating Permanent Physical Impairment.”

85 C.S.R. § 85-16-4(1996)(emphasis added)   (See footnote 7)  .

        We find it extremely important to note that the rule commands a doctor to conduct the examination and compose the report “in accordance with the guides” and not simply to use the models or suggestions contained in the publication. Indeed, the basis of the appellees' argument is that, minus the exceptions specified in the rule, the whole of the Guides, Fourth, including the DRE section, must be followed by any doctor performing an examination on a claimant. As a result of this phrasing, the Division has essentially incorporated by reference into the rule, the entirety of the Guides, Fourth. While the publication runs some three hundred pages and encompasses all aspects of impairment of many bodily systems, we are concerned in this case with injuries of the spine. In the section dealing with spinal injuries, the Guides, Fourth describes two methods of determining impairment. One is called the ROM, or Range of Motion Model. The other is called the DRE, or Diagnosis-Related Estimate Model, or simply, the Injury Model, and was newly introduced in the fourth edition of the Guides.   (See footnote 8)  We shall make reference to either ROM or DRE for the remainder of this opinion.

        The Guides, Fourth is far more than a chart or reference table consulted by doctors; it is a complete set of extremely detailed instructions as to how a doctor should evaluate a claimant's injury. Of particular importance in the instant case is that the Guides, Fourth mandates the use of the DRE model for most back injuries.

The evaluator assessing the spine should use the Injury Model [the DRE], if the patient's condition is one of those listed in Table 70 (p. 108). That model, for instance, would be applicable to a patient with a herniated lumbar disk and evidence of nerve root irritation. If none of the eight categories of the Injury Model is applicable, then the evaluator should use the Range of Motion Model.

Guides, Fourth, § 3.3, p. 94. Implicit in this instruction is that very few claimants would ever be evaluated under the ROM Model, since most would fall into one of the eight categories. The Guides, Fourth, goes on to list other specific instructions as to not only how a doctor should perform an examination, but what sort of data a doctor should consider, and in some cases, what weight the doctor should give that data. Again, we stress that, by virtue of incorporation by rule, the Guides, Fourth section on spinal injuries is far more than a guide, model, or illustration; it is a mechanical set of rules that compels a doctor to consider “x” but exclude “y.”

        It is with this controlling aspect of the Guides, Fourth that appellants most strongly disagree. Appellants point out that several commands of the Guides, Fourth appear to be in conflict with specific dictates of the Legislature, and that the spine injury section of the Guides, Fourth is also internally inconsistent. In essence, appellants echo the logic expressed in a “policy memorandum” issued by the then-chief administrative law judge, which rejected the DRE Model. Chief Administrative Law Judge Robert Smith issued the policy memorandum shortly after rendering a decision in the case of Thelma Cottrell v. Workers' Compensation Division and Community Health Associates, Claim No. 92-56811 (August 22, 1997). In that case, the chief administrative law judge determined that the DRE Model ran afoul of several Code provisions, and as a result, reports conducted in accordance with the DRE are “unreliable” and thus should not be considered in a determination of disability. Appellees argue that the decision of the chief administrative law judge was in excess of his statutory authority, and cannot bind either the Division or the Appeal Board.

        Before reaching the question of the administrative law judge's authority, we examine appellants' argument that the DRE conflicts with our workers' compensation statutes. First, appellants point out that the text of the Guides, Fourth states that the DRE Model considers a claimant's impairment at the time of the injury, not the time of evaluation, that the text of the DRE Model excludes consideration of occupational wear and tear or so called “developmental findings,” and finally, that the Guides, Fourth rates one specific injury, but cannot be used where there are sequential injuries to the same body part or when an injury grows worse over time. It is clear that several statutes and opinions of this Court are in apparent conflict with the Guides, Fourth.

        First, we note that the section we quoted, supra, states that “the degree of permanent disability other than permanent total disability shall be determined exclusively by the degree of whole body medical impairment that a claimant has suffered.” W. Va. Code § 23-4-6(i) (1999) (emphasis added). We believe “has suffered” implies that any rating of permanent partial impairment must be made when the claimant has healed as much as possible. Furthermore, the Code suggests that the permanent partial impairment rating of an injured worker must be made after he or she has reached the maximum degree of improvement.

(c) When the authorized treating physician concludes that the claimant has either reached his or her maximum degree of improvement or is ready for disability evaluation, or when the claimant has returned to work, such authorized treating physician may recommend a permanent partial disability award for residual impairment relating to and resulting from the compensable injury.

W. Va. Code § 23-4-7a(c)(1995); accord, Dalton v. Spieler, 184 W. Va. 471, 473, 401 S.E.2d 216, 218 (1990). Clearly, this Code section does not contemplate an impairment rating made based upon the claimant's condition at the time of injury, or even at some time after injury that is prior to reaching the maximum degree of improvement. However, on its face, the DRE Model suggests that once an estimate of impairment is made, subsequent treatment or improvement of the injury should not change the initial estimate.

With the Injury Model [the DRE], surgery to treat an impairment does not modify the original impairment estimate, which remains the same in spite of any changes in signs or symptoms that may follow the surgery and irrespective of whether the patient has a favorable or unfavorable response to treatment.

Guides, Fourth at §3.3d, p. 100. Although this statement seems at odds with other language in the spine section of the Guides, Fourth,   (See footnote 9)  it nonetheless directs a physician to ignore the outcome of a claimant's treatment, and to rely upon the first estimate of impairment. By virtue of the Commissioner's decision to incorporate the Guides, Fourth, we are left with a nonsensical command that conflicts with the statute. Although during oral argument before this Court, certain parties intimated that this command is, in practice, ignored, we note that ignoring it doesn't make it disappear. Thus, we believe that this aspect of the DRE Model conflicts with W. Va. Code §§ 23-4-7a (1995) and 23-4-6(i) (1999).

        Appellants also argue that the DRE Model, as set forth in the Guides, Fourth, is geared more toward rating single incident traumas to the spine, and purports to exclude any injury that appears over time.
The Injury Model [the DRE] attempts to document physiologic and structural impairments relating to insults other than common developmental findings, such as (1) spondylolysis, found normally in 7% of adults; (2) spondylolisthesis, found in 3%;    (See footnote 10)  (3) herniated disk without radiculopathy, found in more than 30% of individuals by age 40 years; and (4) aging changes, common in 40% of adults after age 35 years.

Guides, Fourth, § 3.3d, p. 100 (footnotes omitted) (footnote added). This sort of analysis would be inappropriate where a workers' injury has occurred over time. We have made clear that: “An employee who is injured gradually by reason of the duties of employment and eventually becomes disabled is, under our workmen's compensation law, no less the recipient of a personal injury than one who suffers a single disabling trauma.” Syl. pt. 3, Lilly v. Workers' Compensation Commissioner, 159 W. Va. 613, 225 S.E.2d 214 (1976); accord, Syl. pt. 2, Sansom v. Workers' Compensation Commissioner, 176 W. Va. 545, 346 S.E.2d 63 (1986). We have also stated that:
A compensable injury which does not initially or of itself produce a permanent total disability may become progressively worse over time or combine with prior impairments under the second injury statute, W. Va. Code, 23-3-1, so as to result in a permanent total disability. . . . .”

Syl. pt. 1, Lambert v. Workers' Compensation Division, ___ W. Va. ___, ___ S.E.2d ___ (Nos. 30041, 30042, 30043, Apr. 26, 2002) (quoting Miracle v. Workers' Compensation Commissioner, 181 W. Va. 443, 383 S.E.2d 75 (1989)). Obviously, our law contemplates that an injury is not necessarily static, and can become worse over time, a concept to which the DRE is at odds, and to which it must yield.    

        Another argument advanced by appellants is that W. Va. Code § 23-4-16 (1995) allows a claimant to “re-open” his or her claim if a compensable injury worsens. The Code provides that “in any claim in which an award of permanent disability was made, any such request must be made within five years of the date of the initial award. During that time period, only two such requests may be filed.” As we noted above, the authors of the DRE state that the original impairment estimate remains the same, even if a claimant's condition worsens or improves. Thus, a claimant who attempts to reopen a claim would appear to be blocked by this language. Moreover, even if we accept the appellees' argument that this language can be ignored or explained, a claimant evaluated under the DRE Model who attempts to reopen still faces the enormous challenge of getting out of the “box” or category of his or her initial rating.

        This same problem also befalls a claimant who does not attempt to reopen for a change in an injury, but is simply injured a second time in a separate incident. The Code provides for additional compensation for claimants who become further impaired as a result of a second injury. See, W. Va. Code § 23-4-6(d) (1999). Because the DRE puts a claimant in one category or another, his or her rating will be 5 percent, 10 percent, 15 percent, etc. Once rated at 5 percent, for example, a claimant must suffer a severe enough second injury to make the quantum leap between the 5 percent category and the 10 percent category. Thus, a claimant whose second injury under the ROM Model would have moved him or her from 5 percent to 7 percent, would remain stuck at 5 percent under the DRE Model. Thus, there is effectively no compensation for a second injury under this scenario, which we believe conflicts with our law.

W. Va. Code § 23-5-8(e) (2001). We also note that the Code provides the chief administrative law judge with broad authority to exercise such powers as may be necessary for the proper administrative review of disputed claims.

The chief administrative law judge shall continue to have the power to hear and determine all disputed claims in accordance with the provisions of this article, establish a procedure for the hearing of disputed claims, take oaths, examine witnesses, issue subpoenas, establish the amount of witness fees, keep such records and make such reports as are necessary for disputed claims and exercise such additional powers, including the delegation of such powers to administrative law judges or hearing examiners as may be necessary for the proper conduct of a system of administrative review of disputed claims. The chief administrative law judge shall make such reports as may be requested of him or her by the compensation programs performance council.

W. Va. Code § 23-5-8(f) (2001).

        Appellees still argue that the decision in Cottrell, and subsequent policy memorandum, could not act as binding precedent on other administrative law judges, the Division, or the Appeal Board. Appellants argue that the Cottrell policy memorandum was never intended to be applied in that fashion, but rather provided notice to all litigants that medical evaluations relying upon the DRE Model were unreliable to support a finding regarding a claimant's degree of impairment before the Office of Judges, only. Thus, they argue, this memorandum did not promulgate a legislative rule as asserted by defense counsel nor did it establish a precedent before the Division or Appeal Board. That is to say, argue appellants, the policy memorandum about Cottrell was necessary precisely because the decision in Cottrell did not have precedential value.

        We concur that W. Va. Code § 23-5-8(f) (2001) gives the chief administrative law judge broad authority to manage cases before the Office of Judges.   (See footnote 11)  We agree with the appellees that neither a policy memorandum, nor a decision by the Office of Judges can bind the Division or the Appeal Board in all future claims, but we find no authority that would prohibit the chief administrative law judge from enacting a uniform policy for his or her office to follow.

        Some might argue that the use of the Guides, Fourth amounts to an impermissible delegation of the Legislature's power to a group of non-elected doctors and experts. However, we note that the delegation of authority to an agency for rule-making purposes is permitted. It is clear that the Legislature may delegate certain powers or responsibilities to an agency: “'The delegation by the legislature of broad discretionary powers to an administrative body, accompanied by fitting standards for their exercise, is not of itself unconstitutional.' Point 8 Syllabus, Chapman v. Huntington, West Virginia, Housing Authority, 121 W. Va. 319 [, 3 S.E.2d 502 (1939) ].” Syl. pt. 5, State ex rel. W. Va. Hous. Dev. Fund v. Copenhaver, 153 W. Va. 636, 171 S.E.2d 545 (1969). And we note that incorporation of a standard not created by the Legislature is permitted, provided that the standard is static. Because of changes made in the Guides, some might argue that the proper course of action would be to apply the language of the most recent version. However, changes to an already adopted standard cannot be made “automatically.”

        In a case from North Dakota, the relevant statute required examinations be conducted in accordance with “the most recent edition” of the Guides. On the date of the statute's enactment, the most recent edition was the third revised edition of the Guides, but when the worker was evaluated in 1994, the Guides, Fourth was the most recent edition. The worker received a 20 percent evaluation from his doctor under the ROM Model, but the Bureau had him evaluated by another doctor under the DRE Model, which resulted in an impairment rating of 10 percent. The worker appealed and the Supreme Court of North Dakota held that, while incorporation of an existing standard is permissible, the attempted adoption of a future standard would be unconstitutional.

Numerous other courts hold that a statute that attempts to incorporate future changes of another statute, code, regulation, standard, or guideline is an unconstitutional delegation of legislative power. See, e.g., International Ass'n of Plumbing and Mechanical Officials v. California Bldg. Standards Comm'n, 55 Cal.App.4th 245, 64 Cal.Rptr.2d 129, 134 (1997); People v. Pollution Control Bd., 83 Ill.App.3d 802, 38 Ill.Dec. 928, 932-933 404 N.E.2d 352, 356-357 (1980); Gumbhir v. Kansas State Bd. of Pharmacy, 228 Kan. 579, 618 P.2d 837, 842-843 (1980); Board of Trustees v. City of Baltimore, 317 Md. 72, 562 A.2d 720, 731 (1989); Michigan Mfrs. Ass'n v. Director of Workers' Disability Compensation Bureau, 134 Mich.App. 723, 352 N.W.2d 712, 715 (1984); Meyer v. Lord, 37 Or.App. 59, 586 P.2d 367, 371 (1978); City of Chamberlain v. R.E. Lien, Inc., 521 N.W.2d 130, 132-133 (S.D.1994); Independent Community Bankers Ass'n v. State, 346 N.W.2d 737, 744 (S.D.1984); Woodson v. State, 95 Wash.2d 257, 623 P.2d 683, 685 (1980). . . . We agree with those courts taking this view.

        The distinction is that, when an existing standard is incorporated by reference, there is the presumption that a legislature is familiar with that standard in its entirety and approves of it. However, by attempting to incorporate a standard, plus any modifications it might undergo, a legislature is delegating its authority to the non-elected authors of the standard, who could then change the standard in some way not contemplated by the legislature. See, Michigan Mfrs. Ass'n v. Director of Workers' Disability Compensation Bureau, 134 Mich.App. 723, 352 N.W.2d 712, 715 (1984) (statute was not an impermissible delegation of authority to an association to create a standard because statute made a valid adoption of a standard already in existence.)

        However, while permissible, the incorporation of a publication like the Guides, Fourth is far more troublesome than the incorporation of pure data, or a printed chart, or a schedule of impairment values.   (See footnote 12)  Statutes and rules are written by lawyers with the understanding that any word written may eventually be subject to construction or attack by other lawyers. Thus, statutes and rules generally have very specific definitions and the authors take pains to make them internally consistent and as unambiguous as possible. An instruction manual written by doctors for doctors is not usually composed with these concerns in mind.

        Appellees argue that the advantage of the DRE is that it is somehow more objective than the ROM. Indeed, the Guides state that the purpose of the DRE is to counter objection that the ROM is too subjective:

One of the purposes of the Guides is to lead to similar results when different clinicians evaluate illnesses and impairments. For evaluating spine impairments, past Guides editions have used a system based on assessing the degree of spine motion and assigning impairment percentages according to limitations of motion. Impairment percents related to the range of motion were to be combined with percents based on diagnoses or therapeutic approaches and neurologic impairments.

Part of the problem with workers' compensation legislation is the apparent confusion over this very issue. Ask any legislator to think about a hard-working person s/he knows who was injured on the job: the legislator will insist to you that the person, perhaps a neighbor, deserves our help, our trust, and adequate benefits from the workers' compensation program. On the other hand, the image of injured workers which often emerges in political discussions is tainted by the perception that workers' compensation is just another welfare program: that people (that is, injured workers) get something for nothing; that the system encourages idleness, fraud, and other socially unwanted and expensive behaviors. The focus then becomes how to limit benefits in order to reduce any economic incentive for workers to behave badly (at best) or fraudulently (at worst). The image of the legitimately injured worker in need of help fades from the discussion. This turns out to be politically useful, since the limitation on benefits not only discourages this apparently anti-social behavior of workers; it also results in the desired cost-savings for businesses, establishing fiscal stability without significant premium increases.

Emily A. Spieler, Assessing Fairness in Workers' Compensation Reform: A Commentary on the 1995 West Virginia Workers' Compensation Legislation, 98 W. Va. L. Rev. 23, 131 (1995) (footnotes omitted).

            (i) For the purposes of this chapter, with the exception of those injuries provided for in subdivision (f) of this section and in section six-b of this article, the degree of permanent disability other than permanent total disability shall be determined exclusively by the degree of whole body medical impairment that a claimant has suffered. For those injuries provided for in subdivision (f) of this section and section six-b of this article, the degree of disability shall be determined exclusively by the provisions of said subdivision and said section. The occupational pneumoconiosis board created pursuant to section eight-a of this article shall premise its decisions on the degree of pulmonary function impairment that claimants suffer solely upon whole body medical impairment. The workers' compensation division shall adopt standards for the evaluation of claimants and the determination of a claimant's degree of whole body medical impairment. Once the degree of medical impairment has been determined, that degree of impairment shall be the degree of permanent partial disability that shall be awarded to the claimant. This subdivision shall be applicable to all injuries incurred and diseases with a date of last exposure on or after the second day of February, one thousand nine hundred ninety-five, to all applications for an award of permanent partial disability made on and after such date, and to all applications for an award of permanent partial disability that were pending before the division or pending in litigation but not yet submitted for decision on and after such date. The prior provisions of this subdivision shall remain in effect for all other claims.

Guides, Fourth at § 3.3, p. 94.

[I]ncorporation by reference may complicate the task of ascertaining the meaning of legislation; it may permit the passage of statutes that could not have garnered majority support if the effects of the incorporated texts were fully understood; and it may promote the passage of statutes without full and intelligent consideration.

Jonathan R. Siegel, The Use of Legislative History in a System of Separated Powers, 53 Vand. L. Rev. 1457,1488 (2000) (footnote omitted) (citing, Horace Emerson Read, Is Referential Legislation Worth While?, 25 Minn. L. Rev. 261, 277 (1941)).

The unfunded liability of the Workers' Compensation Fund is ultimately the result of the failure to collect adequate premiums in order to fund the promises made to pay benefits to workers. Notably and indisputably, the premium levels charged to subscribing employers in West Virginia have been comparatively low since the mid-1980s, when compared nationally or within this region. In 1985, the Moore Administration chose to reduce premium rates by 30 percent and to freeze the premiums at this unsound -- and illegal -- level. Premium rates were not adjusted until 1989. While premium levels all over the country rose dramatically from 1985 to 1990, West Virginia's premium rates were artificially suppressed. Premium levels in West Virginia have never regained the level they should and would have attained if the reduction had not occurred.