|
Linda Garrett Linda Nelson Garrett, P.L.L.C. Summersville, West Virginia Attorney for the Appellant, Ernie Bowers |
Kristin P. Halkias Workers' Compensation Litigation Division Charleston, West Virginia Attorney for the Appellee, West Virginia Insurance Commissioner, in Mr. Bowers's Appeal (Case Number 35036)
|
|
Gregory W. Sproles Breckinridge, Davis, Sproles & Chapman, PLLC Summersville, West Virginia Attorney for the Appellant, Darrell W. Dotson |
Daniel G. Murdock Office of Insurance Commissioner Gary M. Mazezka Workers' Compensation Litigation Division Charleston, West Virginia Attorneys for the Appellee, West Virginia Insurance Commissioner, in Mr. Dotson's Appeal (Case Number 34672) |
The instant matter consists of two appeals from the Workers' Compensation
Board of Review (hereinafter “the Board”) that have been consolidated because they
present the same issue for this Court's consideration and resolution. In both cases, the
claimant suffered a work-related injury in the course of and as a result of his employment.
Both claimants have continued to experience pain from their work-related injuries, neither
claimant has been able to return to work or resume normal activities, and both claimants
have developed depression that their treating physicians have attributed to their work-
related injuries. Throughout the proceedings underlying the instant appeals, the claimants'
requests to add a diagnosis of depression as a compensable component of their claims has
been denied. On appeal to this Court, the claimants assert that the Insurance
Commissioner of West Virginia (hereinafter “the Commissioner”)
(See footnote 1)
erred by refusing to
add a depression diagnosis to their claims because they were not diagnosed with
depression “within 6 months of the[ir] injury or significant injury-related complication”
(See footnote 2)
as required by W. Va. C.S.R. § 85-20-12.2.a (2005) to render such a diagnosis
compensable. Upon a review of the parties' arguments, the record presented for appellate
consideration, and the pertinent authorities, we reverse the decision of the Board in both
cases. We further remand both cases with directions to add a diagnosis of depression to
each of the claimant's underlying claims.
On June 1, 1999, Mr. Dotson's treating physician, Dr. Margaret S. Wantz
(hereinafter “Dr. Wantz”), first recorded that Mr. Dotson is “becoming more and more
depressed due to pain and being unable to work.” Thereafter, on June 4, 1999, Dr. Wantz
prescribed medication to treat Mr. Dotson's symptoms of depression; the Workers'
Compensation Commission (hereinafter “the Commission”) authorized this medication.
Dr. Wantz continued to observe and recount Mr. Dotson's symptoms of
depression in her subsequent treatment notes. Nearly seven and one-half years after first
observing Mr. Dotson's depression, Dr. Wantz, on February 1, 2006, requested that major
depression be added as a compensable diagnosis to Mr. Dotson's workers' compensation
claim resulting from his March 23, 1998, work-related back injury. The Office of Medical
Management (the OMM) denied this request on February 13, 2006, citing W. Va. C.S.R.
§ 85-20-12.2.a, which requires a psychiatric diagnosis be made within six months of the
work-related injury, or a significant complication thereof, upon which such psychiatric
diagnosis is based to be held compensable. In turn, the Claims Administrator upheld the
OMM's denial of a depression diagnosis by order entered February 15, 2006. Likewise,
the Office of Judges (the OOJ), by decision dated July 25, 2006, and the Board, by order
entered April 5, 2007, upheld these rulings. From these adverse decisions, Mr. Dotson
appeals to this Court.
(b) In reviewing a decision of the board of review, the
supreme court of appeals shall consider the record provided by
the board and give deference to the board's findings, reasoning
and conclusions[.]
(c) If the decision of the board represents an affirmation
of a prior ruling by both the commission and the office of
judges that was entered on the same issue in the same claim,
the decision of the board may be reversed or modified by the
supreme court of appeals only if the decision is in clear
violation of constitutional or statutory provision, is clearly the
result of erroneous conclusions of law, or is based upon the
board's material misstatement or mischaracterization of
particular components of the evidentiary record. The court
may not conduct a de novo re-weighing of the evidentiary
record. If the court reverses or modifies a decision of the
board pursuant to this subsection, it shall state with specificity
the basis for the reversal or modification and the manner in
which the decision of the board clearly violated constitutional
or statutory provisions, resulted from erroneous conclusions of
law, or was based upon the board's material misstatement or
mischaracterization of particular components of the
evidentiary record. In other words, “[w]hen it appears from the proof upon which the Workmen's
Compensation [Board of Review] acted that its finding was plainly wrong an order
reflecting that finding will be reversed and set aside by this Court.” Syl. pt. 5, Bragg v.
State Workmen's Comp. Comm'r, 152 W. Va. 706, 166 S.E.2d 162 (1969). Mindful of this
standard, we proceed to consider the parties' arguments.
“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.” Syllabus point 3, Rowe v. West Virginia
Department of Corrections, 170 W. Va. 230, 292 S.E.2d 650
(1982).
Syl. pt. 6, Simpson v. West Virginia Office of the Ins. Comm'r, 223 W. Va. 495, 678 S.E.2d
1 (2009) (emphasis added). In other words,
“[a]ny 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.”
Syllabus point 4, Maikotter v. University of West Virginia
Board of Trustees/West Virginia University, 206 W. Va. 691,
527 S.E.2d 802 (1999). Syl. pt. 7, Simpson v. West Virginia Office of the Ins. Comm'r, 223 W. Va. 495, 678 S.E.2d
1. Accord Syl. pt. 15, Simpson, id. (“'“'Rules and Regulations of . . . [an agency] must
faithfully reflect the intention of the legislature; when there is clear and unambiguous
language in a statute, that language must be given the same clear and unambiguous force
and effect in the [agency's] Rules and Regulations that it has in the statute.' Syl. pt. 4,
Ranger Fuel Corp. v. West Virginia Human Rights Commission, 180 W. Va. 260, 376
S.E.2d 154 (1988).” Syl. pt. 2, in part, Chico Dairy Company v. Human Rights
Commission, 181 W. Va. 238, 382 S.E.2d 75 (1989).' Syllabus point 5, Appalachian
Power Co. v. State Tax Department of West Virginia, 195 W. Va. 573, 466 S.E.2d 424
(1995).”). Thus,
“[p]rocedures and rules properly promulgated by an
administrative agency with authority to enforce a law will be
upheld so long as they are reasonable and do not enlarge,
amend or repeal substantive rights created by statute.”
Syllabus point 4, State ex rel. Callaghan v. West Virginia Civil
Service Commission, 166 W. Va. 117, 273 S.E.2d 72 (1980).
Syl. pt. 11, Simpson, 223 W. Va. 495, 678 S.E.2d 1.
The regulatory language at issue herein, W. Va. C.S.R. § 85-20-12.2.a (2005)
holds compensable “[w]ork injury-related psychiatric disorders” that satisfy the criteria
enumerated therein:
“Work injury-related psychiatric disorders” means
those psychiatric disorders caused by or aggravated by a work
injury or disease. Attached as Exhibit A is a list of psychiatric
diagnoses which are, by definition, not significantly
contributed to by a work-related injury, unless the disorder
ends in the phrase “due to a general medical condition” where
the general medical condition is caused by the work-related
injury. In order to be regarded as work-related, symptoms of an
injury-related psychiatric diagnosis must be manifest within 6
months of the injury or significant injury-related complication
based on credible medical evidence. (Emphasis added). Despite this regulation's adoption of a time period within which the
symptoms of a work-related psychiatric disorder must manifest themselves in order to be
held compensable, the corresponding statutes do not contain a similar requirement.
(See footnote 5)
Rather, the statutes authorizing injured workers to apply for an adjustment of their claims
to add additional, compensable components of their initial work-related injury do not
impose any such time periods within which an additional symptom, condition, or
aggravation of their initial work-related injuries must appear to be held compensable.
(See footnote 6)
Specifically, W. Va. Code § 23-4-16(b) (2005) (Repl. Vol. 2005) provides
that,
[i]n any claim in which an injured employee makes application for a further award of permanent partial disability benefits . . ., if the application is in writing and filed within the applicable time limit as stated [in W. Va. Code § 23-4- 16(a)(2)] above, the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, shall pass upon the request within thirty days of its receipt and, if the commission determines that the claimant may be entitled to an award, the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, shall refer the claimant for further examinations that are necessary.
Similarly, W. Va. Code § 23-5-2 (2005) (Repl. Vol. 2005) directs that,
[i]n any case where an injured employee makes
application in writing for a further adjustment of his or her
claim under the provisions of section sixteen [§ 23-4-16],
article four of this chapter and the application discloses cause
for a further adjustment, the commission shall, after due notice
to the employer, make the modification, or changes with
respect to former findings or orders in the claim that are
justified. . . .
Accord W. Va. C.S.R. § 85-20-6.6 (2005) (requiring treating physician to update diagnosis
codes but not imposing time limitation within which such diagnosis must be made);
Kincannon v. State Comp. Comm'r, 107 W. Va. 533, 149 S.E. 665 (1929) (recognizing that
full extent of injured worker's compensable injury may not be immediately apparent and
contemplating initial and subsequent disability awards, all related to initial, compensable,
work-related injury).
In addition to being contrary to the legislative intent to permit the adjustment
of workers' compensation claims without regard to the time within which the additional
symptom of the compensable injury manifested itself, the application of W. Va. C.S.R.
§ 85-20-12.2.a unfairly differentiates between psychiatric and physical complications of
a compensable work-related injury. By its terms, W. Va. C.S.R. § 85-20-12.2.a
establishes different standards for psychiatric (non-physical) symptoms arising from a
compensable, work-related injury and physical (non-psychiatric) symptoms arising from
the same injury insofar as the time frame within which psychiatric symptoms must be
manifest to be held compensable do not have a corresponding time frame that is applicable
to physical symptoms arising from the same work-related injury. Such a distinction
between psychiatric and physical conditions attributable to a compensable injury are
arbitrary and impermissible.
A workmen's compensation claim must be considered
in its entirety and cannot be regarded as divisible in the sense
of being barred . . . in relation to a disability of one character,
or a disability affecting one part of the claimant's body, but,
at the same time, alive and litigable in relation to another
disability arising from the same injury but of a different
character or one affecting a different part of the claimant's
body.
Syl., in part, Bowman v. Workmen's Comp. Comm'r, 150 W. Va. 592, 148 S.E.2d 708
(1966). Because the practical effect of the language of W. Va. C.S.R. § 85-20-12.2.a is
to treat “a disability of one character,” i.e., psychiatric symptoms, differently than “another
disability arising from the same injury but of a different character,” i.e., physical
symptoms, we find W. Va. C.S.R. § 85-20-12.2.a to be invalid and unenforceable.
Accordingly, we hold that W. Va. C.S.R. § 85-20-12.2.a (2005) is an invalid
administrative rule because it arbitrarily distinguishes between psychiatric (non-physical)
symptoms of a compensable work-related injury and physical (non-psychiatric) symptoms
of the same compensable work-related injury when the Legislature has not made such a
distinction. We further hold that neither W. Va. Code § 23-4-16(b) (2005) (Repl. Vol.
2005) nor W. Va. Code § 23-5-2 (2005) (Repl. Vol. 2005) requires that, to be held
compensable, symptoms of a “work injury-related psychiatric disorder” must manifest
within six months of the underlying work-related injury or a significant complication
thereof.
Applying these holding to the facts of the two cases before us, we conclude
that the decisions to deny the claimants' requests to add a diagnosis of depression were
plainly wrong. See Syl. pt. 5, Bragg v. State Workmen's Comp. Comm'r, 152 W. Va. 706,
166 S.E.2d 162. Pursuant to W. Va. Code § 23-4-16(a)(2), requests to modify, change,
or reopen an existing claim “must be made within five years of the date of the initial
award.” Here, both Mr. Bowers and Mr. Dotson met this threshold requirement. Mr.
Bowers requested the addition of a depression diagnosis on May 24, 2006, which date was
within five years of his initial 34% permanent partial disability award, which was granted
on November 18, 2005, and the appeal of which was dismissed at Mr. Bowers's request.
Likewise, Mr. Dotson requested the addition of a depression diagnosis on February 1,
2006, which date was within five years of his initial PPD award, which was granted on
February 25, 2003, and ultimately affirmed, as modified by the OOJ, by the Board of
Review's order entered December 29, 2004. Cf. Syl. pt. 2, in part, Pugh v. Workers'
Comp. Comm'r, 188 W. Va. 414, 424 S.E.2d 759 (1992) (holding that statutory time limit
set forth in W. Va. Code § 23-4-16(a)(2) begins to run from “the last payment in the
original award or any subsequent increase thereto”). Therefore, both claimants have met
the temporal requirements for requesting a modification of their underlying claims.
Moreover, to be held compensable, an injury must have occurred “in the
course of and resulting from [the worker's] . . . employment.” W. Va. Code § 23-4-1(a).
Here, the parties do not dispute that Mr. Bowers and Mr. Dotson both injured their back
as a result of a work-related injury, and, in fact, both of their underlying claims have been
held compensable. With respect to the depression diagnosis they seek to add to their
claims, both claimants represent that they were not depressed before their work-related
injuries, and both claimants have presented unrefuted evidence that their depression has
resulted from their compensable back injuries. Because both Mr. Bowers and Mr. Dotson
have demonstrated a causal relationship between the diagnosis of depression they request
and their underlying, work-related injuries, their request to add such a diagnosis should
have been granted. Accordingly, the Board's orders refusing to add such a diagnosis in
both cases are reversed, and both cases are remanded with directions to add a diagnosis
of depression to the claimants' compensable claims. See Syl., in part, Justice v. State
Comp. Dir., 149 W. Va. 216, 140 S.E.2d 424 (1965) (“When a claimant makes timely
application in writing . . . for further adjustment of his claim and upon such application
establishes a fact or facts not previously considered by the [Claims Administrator] in his
former findings which would entitle claimant to greater benefits than he has already
received, the claim should be reopened, and this Court will reverse an order of the
Workmen's Compensation . . . Board [of Review] affirming an order of the [Claims
Administrator] which denies a reopening of the claim.”).