Albright, Justice, concurring in part, and dissenting in part:
I respectfully dissent from the portion of the majority opinion formulating
temporary rules for determinations of awards in Workers' Compensation hearing loss cases.
While I do not necessarily disagree with the substance of the rules formulated by the majority,
I believe that this Court has exceeded its authority by engaging in what is essentially a rule-
making function, regardless of the fact that such rules are intended as only interim rules. A
complex system exists within this State for the consideration and promulgation of rules within
the Workers' Compensation realm. The West Virginia Legislature has clearly articulated that
rule-making authority rests within administrative and legislative bodies, rather than this Court.
As this Court aptly recognized in footnote five of Chico Dairy Co., Store No. 22 v. West
Virginia Human Rights Commission, 181 W.Va. 238, 382 S.E.2d 75 (1989), “[s]everal
sections of the State Administrative Procedures Act, as amended effective May 11, 1982, state
the legislature's concerns with the manner in which the rules of state administrative agencies
are promulgated, emphasizing legislative oversight of rules which are legislative in character.”
181 W.Va. at 243 n. 5, 382 S.E.2d at 80 n. 5.
In addition, the Legislature has
placed within the workers' compensation scheme a particularized process for the
development and promulgation of rules relating to that subject. See W.Va.
Code § 21A-3-7(c) (1993) (Repl. Vol. 2002). This Court possesses only limited
powers to make rules regulating the judiciary and legal profession, as contemplated
by West Virginia Constitution, Article VIII, § 8. See Gilman v.
Choi, 185 W.Va. 177, 406 S.E.2d 200 (1990), overruled on other grounds,
Mayhorn v. Logan Medical Found., 193 W.Va. 42, 454 S.E.2d 87 (1994). The
majority's development of rules for determining permanent partial disability awards
based upon audiograms, while perhaps well-intentioned and designed, simply exceeds
the authority of this Court. To remain within the confines of this Court's authority,
the majority should have limited itself to a basic recitation of the issues to
be considered in agency rule-making action and the establishment of a firm deadline
for such action.
This Court improvidently entered this arena in Bilbrey v. Workers'
Compensation Commissioner, 186 W.Va. 319, 412 S.E.2d 513 (1991), and created the
dilemma of judicial intervention in areas more properly addressed by administrative and
legislative bodies. I agree with the majority in the case sub judice that the principles of
Bilbrey have been administered in such manner as to create no reliability in hearing loss
awards. I further agree with the majority that additional guidelines do need to be developed by
the Workers' Compensation Division to address the areas discussed in the majority opinion
regarding reliability of audiograms.
In Machala v. State Compensation
Commissioner, 109 W.Va. 413, 155 S.E. 169 (1930), the rule was extended to
the construction and interpretation of evidence. In that regard, our law
differs from that of other states. But the application of the rule of liberality
to the consideration of evidence has now been so firmly established in our law
for over seventy years as to be beyond question or doubt. Very importantly, however,
the Rule of Liberality is not to be utilized as a substitute for the claimant's
duty to produce substantial evidence of the claim. In syllabus point one of
In summary, I concur with the majority's perception of the degree to which
determinations of hearing loss awards are not uniformly managed. I further concur with the
majority's vision of the manner in which determinations of such awards, through appropriate
rule-making authority, should be altered. I respectfully dissent, however, with regard to this
Court's determination that it has the authority to fabricate interim rules for application while
the system awaits agency response to this Court's mandate. I would have set a reasonable
deadline for administrative correction of the defects in reliability recognized by the Court and
acknowledged, on grounds of comity, the need for judicial restraint until and unless judicial
intervention became unavoidable by reason of administrative inaction.
Such commission shall not be bound by the usual common law or
statutory rules of evidence, or by any technical or formal rules of
procedure, other than herein provided, but may make the
investigation in such manner as in its judgment is best calculated
to ascertain the substantial rights of the parties and to carry out
justly and liberally the spirit of this act.
See Johnson v. State Workmen's Compensation Com'r, 155 W.Va. 624,
631-32, 186 S.E.2d 771, 776 (1972). This Court acknowledged the spirit of workers'
compensation legislation prior to the 1913 legislative pronouncement. In 1910,
this Court explained: “That which is plainly within the spirit, meaning and
purpose of a remedial statute, though not therein expressed in terms, is as much
a part of it as if it were so expressed.” Syl. Pt. 1, Hasson v. City of
Chester, 67 W.Va. 278, 67 S.E. 731 (1910). Judicial
recognition of this principle also occurred in1928 in
Caldwell v. Compensation Commissioner, 106 W.Va. 14, 144 S.E. 568 (1928),
in which this Court held that a spirit of liberality should be employed in applying
the provisions of the Workmen's Compensation Act.
See
also Eady v. State Compensation Com'r, 148 W.Va. 5, 12, 132 S.E.2d 642, 646-47
(1963). Thus, the liberality
rule must be balanced against the ultimate responsibility of this Court and administrative
bodies to assure that awards are founded upon substantial evidence.