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M. Jane Glauser, Esq. Jonathan C. Bowman, Esq. Seibert & Kasserman, L.C. Wheeling, West Virginia Attorneys for the Appellant |
Edward M. George, III, Esq. Janette D. Simmons, Esq. Phillips, Cardill, Kaiser & Altmeyer Wheeling, West Virginia Attorneys for Appellee, Consolidation Coal Company |
JUSTICE McGRAW delivered the Opinion of the Court.
1. When a claimant in a Workers' Compensation case dies after an appeal
is granted, or while a proceeding is otherwise pending in this Court, a dependent or, if
appropriate, the personal representative of the deceased claimant may be substituted as a
party on a motion filed by the representative or by any party with the Clerk.
2. The right to payment of any type of Workers' Compensation award,
permanent partial disability, temporary total disability or permanent total disability, which
was awarded during the lifetime of the claimant and which would have been payable to the
claimant, does not vest in the claimant's estate, but does vest in the dependents of the
claimant, if there are dependents at the time of death.
3. If a claimant in a Workers' Compensation case to whom an award was
made, dies while appealing a subsequent adverse decision concerning that award, the appeal
shall proceed as if death had not occurred. Any unpaid compensation awarded as a result of
such an appeal, which would have been paid or payable to the claimant up to the time of his
or her death, shall not accrue to the estate of the claimant, but shall be payable to the
dependents of the deceased claimant, if there are dependents at the time of death.
4. A claimant is permanently and totally disabled under our workmen's
compensation statute when he is unable to perform any remunerative work in a field of work
for which he is suited by experience or training. Each case will be considered on the peculiar
facts for the reason that what may be totally disabling to one person would only be slightly
disabling to another of a different background and experience. Syl. pt. 3, Posey v. State
Workmen's Compensation Comm'r, 157 W. Va. 285, 201 S.E.2d 102 (1973).
5. "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. In such circumstances, the 'date of disability,' from which a
permanent total disability award will be calculated and paid within the meaning of W. Va.
Code, 23-4-18, is the first date on which medical or other expert evidence indicated that such
permanent total disability existed." Syllabus, Miracle v. Workers' Compensation Comm'r,
181 W. Va. 443, 383 S.E.2d 75 (1989).
6. Where there are multiple reports from various experts which establish
that the claimant has currently reached permanent total disability status, the Workers'
Compensation Commissioner has a reasonable discretion in selecting the beginning date for
the award and payment of permanent total disability benefits. The selection should be based
on the dates upon which the experts found the claimant to have been permanently and totally
disabled. Syl. pt. 2, Young v. Workers' Compensation Comm'r, 181 W. Va. 440, 383 S.E.2d
72 (1989).
McGraw, Justice:
This appeal arises from an order of the Workers' Compensation Appeal Board
dated November 30, 1998 which reversed an order of the Workers' Compensation Office of
Judges awarding Robert C. Wingrove a permanent total disability award with an onset date
of October 16, 1992. After the appeal was granted, Mr. Wingrove died and his dependent
widow, Kathie Wingrove, was substituted as the petitioner. The threshold question presented
in this case concerns whether a dependent widow can seek a final adjudication concerning
permanent total disability benefits awarded during the claimant's life, and the second
question concerns the merits of permanent total disability benefits. Based on the relevant
statutes and case law, we find that substitution of the dependent widow as the petitioner is
proper and that Mr. Wingrove was entitled to permanent total disability benefits payable from
the second injury reserve with an onset date of October 16, 1992.
Numerous evaluations and orders followed. The first order from the Workers'
Compensation Division dated March 27, 1987 was based on Dr. Sam Vukelick's December
1, 1986 evaluation and awarded no permanent partial disability benefits. Thereafter, the
claimant was evaluated by Dr. Jonathan Himmelhoch, a psychiatrist; Mary Cogar, Dan
Kilgore and Cheryl Lynch, vocational experts; Thomas Andrews, a clinical psychologist; and
Dr. Paul Hedges. Although several of these reports indicated that the claimant could not
return to his previous work, others indicated that the claimant could perform light work. The
claimant was awarded social security disability benefits on December 7, 1988, with an onset
date February 13, 1987, the date of claimant's last employment. On February 9, 1990, the
claimant received a United Mine Workers of America disability pension.
On October 16, 1992, Dr. J. P. Griffith, Jr. evaluated the claimant and found
him totally disabled with a seven percent permanent partial impairment to his low back in this
claim. On May 5, 1993, Dr. Jerome Massenburg evaluated the claimant and found a three
percent psychiatric impairment with poor rehabilitation prospects. By order dated
September 9, 1993, the Division granted the claimant a ten percent permanent partial
disability award (seven percent for orthopedic impairment and three percent for psychiatric
impairment).
On September 23, 1994, the Division granted the claimant an additional eleven
percent permanent partial disability and a permanent total disability award, payable from the
second injury reserve, with an onset date of February 13, 1987. The employer protested and
submitted a report from Dr. Charles Weise who found no psychiatric impairment related to
the claimant's compensable injury.
The Office of Judges, by order dated April 28, 1998, modified the Division's
order by finding the claimant's permanent total disability award payable from the second
injury reserve with an onset date of October 16, 1992, based on Dr. Griffith's report. The
Office of Judges further found no additional permanent partial disability award should be
granted above the ten percent permanent partial disability previously awarded. Both the
claimant and employer appealed. The claimant appealed seeking to reinstate the February
13, 1987 onset date for permanent total disability, and the employer appealed seeking
reversal of the permanent total disability award.
By order entered on November 30, 1998, the Appeal Board found the previously awarded ten percent permanent partial disability award fully compensated the claimant and reversed the permanent total disability award. On December 22, 1998, the claimant appealed to this Court, seeking reinstatement of his permanent total disability award, with an onset date of February 13, 1987.
This Court, by order entered December 20, 1999, granted the appeal, 4-1
(Maynard, J., dissenting, with Workman, J., participating, and Scott, J., not participating).
On March 13, 2000 while the case was pending, the claimant died. On May 23, 2000, the
Court granted the motion of Kathie Wingrove, the dependent widow, to substitute her as the
petitioner in this proceeding.
These facts present two questions: (1) The effect of a claimant's death during
the long adjudicatory process concerning a previously granted permanent total disability
award; and, (2) If the appeal survives the claimant's death, a decision on the issue of
permanent total disability benefits.
In the present case, Mr. Wingrove died after his appeal was granted. His
widow filed a motion to be substituted as a party. Based on Rule 27(a), Rules of Appellate
Procedure, we find that when a claimant in a Workers' Compensation case dies after an
appeal is granted, or while a proceeding is otherwise pending in this Court, a dependent or,
if appropriate, the personal representative of the deceased claimant may be substituted as a
party on motion filed by the representative or by any party with the Clerk.
A dependent may be substituted for a deceased claimant in a Workers'
Compensation case because W. Va. Code 23-4-6 [1999] limits the payment of compensation
benefits to the dependents of the deceased claimant. W. Va. Code 23-4-6(l) [1999] provides,
in pertinent part:
Compensation, either temporary total or permanent partial,
under this section shall be payable only to the injured employee
and the right thereto shall not vest in his or her estate, except
that any unpaid compensation which would have been paid or
payable to the employee up to the time of his or her death, if he
or she had lived, shall be paid to the dependents of such injured
employee if there be such dependents at the time of death.
A similar restriction is found in W. Va. Code 23-4-6(g) [1999] which states, in pertinent part:
Should a claimant to whom has been made a permanent partial
award die from sickness or noncompensable injury, the unpaid
balance of such award shall be paid to claimant's dependents as
defined in this chapter, if any; such payment to be made in the
same installments that would have been paid to claimant if
living: Provided, That no payment shall be made to any
surviving spouse of such claimant after his or her remarriage,
and that this liability shall not accrue to the estate of such
claimant and shall not be subject to any debts of, or charges
against, such estate.
See, Ashworth v. Workmen's Compensation Comm'r, 150 W. Va. 537, 148 S.E.2d 364 (1966)
(dependent widow is entitled to unpaid balance of an award of permanent partial disability
made during the lifetime of the claimant).
Neither W. Va. Code 23-4-6 (l) nor (g) [1999] address compensation payable
because of an award of permanent total disability. Workers' Compensation rights and
resultant remedies are statutory and in order to ascertain the availability and scope of
benefits, this Court looks to the plain meaning to ascertain the legislature's intention. 'The
primary object in construing a statute is to ascertain and give effect to the intent of the
Legislature.' Syl. pt. 1, Smith v. State Workmen's Compensation Commissioner, 159 W. Va.
108, 219 S.E.2d 361 (1975). Syl. pt. 6, SER ACF Industries, Inc. v. Vieweg, 204 W. Va.
525, 514 S.E.2d 176 (1999).
Although these Code provisions specifically address permanent partial and
temporary total disability awards, the legislature's intention is plainly to limit payment of any
type of compensation award, including permanent total disability payments, to the
dependents of a deceased claimant. We hold that the right to payment of any type of
compensation award, permanent partial disability, temporary total disability or permanent
total disability, which was awarded during the lifetime of the claimant and which would have
been payable to the claimant, does not vest in the claimant's estate, but does vest in the
dependents of the claimant, if there are dependents at the time of death.
In this case, we find that the substitution of Mrs. Wingrove was proper under
Rule 27(a), Rules of Appellate Procedure. The payment of any compensation awarded
during the lifetime of Mr. Wingrove which would have been payable to him, would vest in
his dependents, including his dependent widow.
We have long held that [l]ong delay in processing claims for workmen's
compensation is not consistent with the declared policy of the Legislature to determine the
rights of claimants as speedily and expeditiously as possible. W. Va. Code, 23-5-3a. Syl.
pt.1, Workman v. Workmen's Compensation Comm'r, 160 W. Va. 656, 236 S.E.2d 236
(1977); syl. pt. 3, Meadows v. Lewis, 172 W. Va. 457, 307 S.E.2d 625 (1983). In this case,
Mr. Wingrove was awarded permanent total disability benefits by the Division in 1994
(seven years after his last working day). Almost four years later in 1998, the Office of
Judges modified the award with a later onset date. Seven months later in 1998, the Appeal
Board reversed the permanent total disability award. The case was appealed to this Court on
December 22, 1998. While the appeal was pending, the claimant died on March 13, 2000.
In this case, the adjudicatory process after the Division's award of permanent total disability
has taken almost six years.
According to W. Va. Code 23-4-6(g) [1999], the general rule is that an award
of benefits during the lifetime of the claimant is necessary for payment of unpaid benefits to
a claimant's dependents after his or her death. See syl. pt. 2, in pertinent part, Hughes v.
State Compensation Comm'r, 145 W. Va. 629, 116 S.E.2d 153 (1960) (no benefits because
deceased claimant was not a claimant to whom an award has been made). Several
exceptions are outlined in W. Va. Code 23-4-6(f) (severance of listed bodily members), and
(h) (finding by occupational pneumoconiosis board) [1999].
The plain meaning of the statute requires an award to be given during a
claimant's lifetime for the payment of unpaid benefits to a claimant's dependents after his
or her death. However, the statute does not address the effect of a subsequent reversal of an
award. Once again, the intent of the Legislature is of primary importance in interpreting the
statute. Smith, supra, Section II. Syl. pt. 2 of Pristavec v. Westfield Ins. Co., 184 W. Va.
331, 400 S.E.2d 575 (1990) emphasizes that statutory construction should further justice
by holding, in pertinent part:
"It is the duty of a court to construe a statute according to its
true intent, and give to it such construction as will uphold the
law and further justice. . . ." Syl. pt. 2, Click v. Click, 98
W. Va. 419, 127 S.E. 194 (1925).
Although an award is required, W. Va. Code 23-4-6(g) [1999] does not require the award to
be final. By requiring an award, the problems of development of evidence after a claimant's
death are avoided. In this case, the claimant's death did not create any evidentiary problem.
Most of the evidence was submitted before the Division's September 23, 1994 order, with
the final report submitted on March 6, 1995. By not requiring a final award, the effect of
delays in the adjudicatory process is minimized. In this case, there were long delays in the
adjudicatory process; a review by the Office of Judges took almost four years. To require
a final award would not further justice (Click, id.) because it would reward a system that
did not determine the rights of claimants as speedily and expeditiously as possible.
Workman, supra.
Based on W. Va. Code 23-4-6 [1999], we hold that if a claimant in a Workers'
Compensation case to whom an award was made, dies while appealing a subsequent adverse
decision concerning that award, the appeal shall proceed as if death had not occurred. Any
unpaid compensation awarded as a result of such an appeal, which would have been paid or
payable to the employee up to the time of his or her death, shall not accrue to the estate of
the claimant, but shall be payable to the dependents of the deceased claimant, if there are
dependents at the time of death.
In this case, the claimant was awarded permanent total disability by the
Division on September 23, 1994. Based on the award he received during his lifetime, his
death while appealing a subsequent adverse decision does not stop the appeal. However, any
benefits resulting from the appeal do not accrue to his estate but can be payable to his
dependents, including his dependent widow.
In this case, the claimant was not initially permanently and totally disabled;
rather he became progressively worse. In Miracle v. Workers' Compensation Comm'r, 181
W. Va. 443, 383 S.E.2d 75 (1989) and Young v. Workers' Compensation Comm'r, 181
W. Va. 440, 383 S.E.2d 72 (1989), we discussed how an onset date for permanent total
disability should be determined in such a case. Syl. pts. 1 and 2 of Young set out the
holding in both cases:
1. "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. In such circumstances, the 'date of
disability,' from which a permanent total disability award will be
calculated and paid within the meaning of W. Va. Code,
23-4-18, is the first date on which medical or other expert
evidence indicated that such permanent total disability existed."
Syllabus, Miracle v. Workers' Compensation Comm'r, 181
W. Va. 443, 383 S.E.2d 75 (1989).
2. Where there are multiple reports from various experts which
establish that the claimant has currently reached permanent total
disability status, the Workers' Compensation Commissioner has
a reasonable discretion in selecting the beginning date for the
award and payment of permanent total disability benefits. The
selection should be based on the dates upon which the experts
found the claimant to have been permanently and totally
disabled.
In this case, although there were findings that the claimant was permanently
and totally disabled as early as 1987, only one expert considered all of the claimant's
potential in determining that the claimant was permanently and totally disabled.
See footnote 1
1
Dr. J. P.
Griffith, Jr., who evaluated the claimant on October 16, 1992, found that the claimant did not
have the residual functional capacity to return to work for which he was suited by his
experience and training. Dr. Griffith's findings are substantiated by the vocational,
psychiatric and other orthopedic evidence. Based on Dr. Griffith's report, we find under
Miracle and Young the onset date for permanent total disability in this case is October 16,
1992.
Therefore, we reverse the decision of the Workers' Compensation Appeal
Board and remand this claim for entry of a permanent total disability award with an onset
date of October 16, 1992 and for the payment of any resultant benefits accrued on or before
the claimant's death to the claimant's dependents.
Footnote: 1 1The early reports include the report of Dr. Jonathan Himmelhoch, a psychiatrist, who examined the claimant on December 7, 1987. Dr. Himmelhoch opined that the claimant was permanently and totally disabled, but Dr. Himmelhoch failed to consider the potential for vocational rehabilitation. Several vocational assessments found the claimant had transferable skills or could perform light or medium work. Although Dan Kilgore's January 13, 1988 vocational report found the claimant was not a good candidate for vocational rehabilitation and could not return to work full time, Mr. Kilgore failed to supply objective standards.