Davis, C.J., dissenting:
“The right to dissent is the only thing that
makes life tolerable for a judge of an appellate court.”
(See footnote 1)
As is evident from the numerous separate opinions I have authored this
term, I find ever more frequently the need to exercise my right to dissent,
and to urge my brethren to refrain from torturing the law of this state, and/or
usurping the role of the legislature, to achieve their desired result du
jour. And so, once again, I must disagree with the decision of the majority.
This case was brought as a simple request by Michael
McKenzie for a writ of mandamus to compel the Commissioner of the Workers'
Compensation Division (hereinafter “the Commissioner”) to provide
him with vocational rehabilitation services. Although the requested services
were granted to Mr. McKenzie during the pendency of this appeal, the majority
declined to dismiss the case as moot. Instead, the majority ruled that only
a claimant, as opposed to the Commissioner, may select his or her vocational
rehabilitation service providers. To reach this holding, the majority confuses
physical and vocational rehabilitation, misuses the extraordinary remedy of mandamus, and extends
the rule of liberality beyond any bounds anticipated by the legislature or
our predecessors on this Court. Consequently, for the reasons set out below,
I dissent.
(See footnote 2)
In its rush to legislate, the majority has made these
two terms synonymous.
(See footnote 7) This commingling of “apples and oranges”
was purposefully done to obscure the complete absence of authority supporting
the majority's holdings in this case.
(See footnote 8) While the majority correctly
notes that W. Va. Code § 23-4-3(b) (1995) (Repl. Vol. 1998) grants
a claimant the right “to select his or her initial health care provider
for treatment of a compensable injury or disease” (emphasis added), it
proceeds to then misapply this provision to conclude that it grants a claimant
the exclusive right to select a vocational rehabilitation service provider.
It is plainly evident that a vocational rehabilitation service provider, under
its statutory definition as well as common nomenclature, is not a health
care provider. Vocational rehabilitation services are limited to “vocational
or on-the-job training, counseling, assistance in obtaining appropriate temporary
or permanent work site, work duties or work hours modification[.]” W. Va.
Code § 23-4-9(b). Nothing in this description refers to health care, thus
there is absolutely no statutory support for granting a claimant the right to
select a vocational counselor under the guise of selecting an initial health
care provider under W. Va. Code § 23-4-3(b). In fact, the regulations
expressly prohibit such an interpretation. See 7A C.S.R. § 85-15-3.11.2
(stating “the term [vocational rehabilitation services provider] does not
include licensed physicians, licensed psychologists or hospitals where the services being provided to an injured
employee fall under the provisions of W. Va. Code § 23-4-3, and
are outside the scope of the pertinent rehabilitation plan.”).
W. Va.
Code § 23-4-3(b) is plain in permitting claimants to select their initial
“health care provider.” Consequently, it was unnecessary and improper
for the majority to interpret the statute. It is black letter law that “'[w]hen
a statute is clear and unambiguous and legislative intent is plain the statute
should not be interpreted by the courts, and in such case it is the duty of
the courts not to construe but to apply the statute.'” Hall v. Board
of Educ. of County of Mingo, 208 W. Va. 534, 539, 541 S.E.2d 624,
629 (2000) (quoting Syl. pt. 1, Cummins v. State Workmen's Comp. Comm'r,
152 W. Va. 781, 166 S.E.2d 562 (1969)). Moreover, “[i]t is also
the 'duty of this Court to avoid whenever possible a construction of a statute
which leads to absurd, inconsistent, unjust or unreasonable results.'”
Hall, 208 W. Va. at 539, 541 S.E.2d at 629 (quoting State v.
Kerns, 183 W. Va. 130, 135, 394 S.E.2d 532, 537 (1990)). In the instant
proceeding, the majority has embraced an “absurd” reading of W. Va.
Code § 23-4-3(b).
The majority accurately points out that W. Va.
Code § 23-4-3(b) also directs that no employer is permitted to “enter
into any contracts with any hospital, its physicians, officers, agents or employees to render
medical, dental or hospital service or to give medical or surgical attention
therein to any employee[.]” However, the majority is absolutely wrong
in finding that this prohibition prevents the Commissioner from using a list
of employer preferred
vocational
rehabilitation service providers. As noted above, nothing contained in W. Va.
Code § 23-4-3(b) pertains to vocational rehabilitation services.
Therefore, this statute does not provide a proper basis for ruling that employers
may not submit a list of preferred vocational rehabilitation service providers
to the Commissioner.
Neither the
majority opinion nor my own independent research has uncovered any statute
in the workers' compensation laws expressly prohibiting the Commissioner from
using a list of employer preferred
vocational rehabilitation providers.
However, W. Va. Code § 23-4-9(e) provides that “[t]he commissioner
shall promulgate rules for the purpose of developing a comprehensive rehabilitation
program which will assist injured workers to return to suitable gainful employment[.]”
Under the authority of this provision, the Commissioner is granted discretion
to implement a method for providing vocational rehabilitation services to claimants.
The Commissioner has exercised this discretion by developing the aforementioned
list. Because the actions of the Commissioner were discretionary,
it was improper for the majority to grant the writ of mandamus to impose its own judgment
over that of the Commissioner. This Court has “characterized the purpose
of the writ [of mandamus] as the enforcement of an established right and the
enforcement of a corresponding imperative duty created or imposed by law.”
Syl. pt. 1, State ex rel. Ball v. Cummings, 208 W. Va. 393, 398,
540 S.E.2d 917, 922 (1999) (citing State ex rel. Bronaugh v. City of Parkersburg,
148 W. Va. 568, 136 S.E.2d 783 (1964)). It has been explained further
that “[m]andamus is a proper remedy to require the performance of a nondiscretionary
duty by various governmental agencies or bodies.” Syl. pt. 1, State
ex rel. Allstate Ins. Co. v. Union Pub. Serv. Dist., 151 W. Va. 207,
151 S.E.2d 102 (1966) (emphasis added). While it is true that “[m]andamus
lies to control the action of . . . administrative officer[s]
in the exercise of [their] discretion when such action is arbitrary or capricious[,]”
Syllabus, Beverly Grill, Inc. v. Crow, 133 W. Va. 214, 57 S.E.2d
244 (1949), “'it is never employed to prescribe in what manner they
shall act, or to correct errors they have made.'” State ex rel.
State v. Gustke, 205 W. Va. 72, 76 n.2, 516 S.E.2d 283, 287 n.2 (1999)
(quoting Syl. pt. 8, Nobles v. Duncil, 202 W. Va. 523, 505 S.E.2d
442 (1998) (additional citation omitted)). Accord Syl. pt. 4, Paxton
v. State Dep't of Tax and Revenue, 192 W. Va. 213, 451 S.E.2d 779
(1994); Syl. pt. 3, Anderson v. Richardson, 191 W. Va. 488, 446
S.E.2d 710 (1994); Syl. pt. 6, Lyons v. Richardson, 189 W. Va.
157, 429 S.E.2d 44 (1993); Francis O. Day Co., Inc. v. West Virginia Reclamation
Bd. of Review, 188 W. Va. 418, 422, 424 S.E.2d 763, 767 (1992); Syl.
pt. 2, State ex rel. Lambert v. Cortellessi, 182 W. Va. 142, 386 S.E.2d 640 (1989);
Syl. pt. 3, State ex rel. Canterbury v. County Court of Wayne County,
151 W. Va. 1013, 158 S.E.2d 151 (1967); Meador v. County Court of
McDowell County, 141 W. Va. 96, 112, 87 S.E.2d 725, 736 (1955); Syl.
pt. 1, State ex rel. Buxton v. O'Brien, 97 W. Va. 343, 125 S.E.
154 (1924). The majority's holding in this case merely corrected a perceived
error committed by the Commissioner in exercising his discretionary authority.
In the absence of a finding that the Commissioner's actions were arbitrary
or capricious, it was simply wrong to use the extraordinary remedy of mandamus
in this manner. The ultimate result of the majority decision in
this case is to overrule a long line of precedent prohibiting the use of a
writ of mandamus to dictate the manner in which a government agency should
exercise its discretionary authority. The majority has mandated the precise
manner in which the Commissioner may exercise his discretion to develop a
method for selecting vocational rehabilitation service providers, by permitting
only claimants to make the selection. The majority's decision has made the
writ of mandamus a tool to be used by the Court to control any and every government
action it desires. This new extension of the writ of mandamus has no constitutional
basis, and is a real and dangerous threat to the separation of powers doctrine
embodied in this state's constitution. See State ex rel. League
of Women Voters of West Virginia v. Tomblin, 209 W. Va. 565, 579,
550 S.E.2d 355, 369 (2001) (Davis, J., dissenting) (“Integral to the separation of powers is the notion that each of the branches of government
has its own constituent components and its own defined functions.”).
In my dissenting opinion in Repass v. Workers'
Comp. Div., ___ W. Va. ___, ___ S.E.2d ___ (Nos. 27730 and 28392
June 28, 2002) (Maynard, J., joining), I explain in detail that the rule of liberality, which must be mollified by
reasonableness, should never be used as an excuse to interpret statutory language
that is plain, or to engage in improper judicial legislating. See also
Ford v. Mitcham, 53 Ala. App. 102, ___, 298 So. 2d 34, 36 (1974)
(“liberality of construction should not proceed to such a point as to
amount to judicial legislation.”); Deese v. Southeastern Lawn &
Tree Expert Co., 306 N.C. 275, ___, 293 S.E.2d 140, 143 (1982) (“liberality
should not . . . extend beyond the clearly expressed language
of th[e] [statutes], and our courts may not enlarge the ordinary meaning of
the terms used by the legislature or engage in any method of judicial legislation. . . .
[C]onsequently, the judiciary should avoid ingrafting upon a law something
that has been omitted, which [it] believes ought to have been embraced.”
(citations and internal quotation marks omitted)); In re. Corman 909
P.2d 966, 971 (Wyo. 1996) (“[C]ourts are not free under the guise of
liberal construction to extend worker's compensation benefits . . . that
do not reasonably fall within the statute.” (citation omitted)
(emphasis added)).
I am at a loss as to what it will take for the majority
to realize that there is a future generation of workers who will need the
services of a healthy and viable workers' compensation system. The decision
in this case is simply another step by the majority in a journey leading ultimately
to a workers' compensation system so afflicted by unreasonable laws that it
will become utterly incapable of providing legitimate claimants with the benefits
and services they so desperately need. In view of the foregoing, I dissent. I am authorized
to state that Justice Maynard joins me in this dissenting opinion.
Finally, and most troubling, is the majority's reliance
on the rule of liberality as justification to rewrite statutes in this case.
In this and other workers' compensation cases recently decided by this Court,
(See footnote 9)
a majority of its members have demonstrated a disturbing trend of touting
the liberality rule to rationalize overstepping this Court's authority in order
to achieve desired goals. See, e.g., Martin v. Workers' Comp. Div.,
210 W. Va. 270, 285, 557 S.E.2d 324, 339 (2001) (Maynard, J., dissenting)
(observing that this Court “routinely cites the liberality rule and uses
it to justify its decisions in workers' compensation appeals.”). Contrary
to this unabashed exploitation, the rule of liberality has historically been
used in workers' compensation cases in a manner that did not sacrifice basic
legal principles and trample upon the authority of the legislative and executive
branches of government.
In the case sub judice, the majority has
employed the rule of liberality to judicially create legislative requirements
that cannot reasonably be gleaned from existing statutes. Such action is simply
wrong. As one court put it, the rule of liberality “does not imply that
liberality is boundless or that common sense is disregarded.” Christian
Civic Action Comm. v. McCuen, 318 Ark. 241, ___, 884 S.W.2d 605, 608 (1994).
The type of brazen and illogical crusading engaged in by the majority in this case
was appropriately denounced in the dissenting opinion of Quinn v. State,
15 Cal. 3d 162, ___, 124 Cal. Rptr. 1, 13, 539 P.2d 761, 773 (1975) (Clark,
J., dissenting):
[T]he statutory rule of liberal construction, relied
on by the majority, does not invest this court with power to administer workers'
compensation as we see fit. . . . “[H]ow far . . . 'liberality'
may extend would seem to depend upon two considerations: (1) the latitude
permitted by the wording of the statute which is to be construed; and (2)
the latitude permitted, within such limitations, by the views of the reviewing
tribunal. The first is a limitation of an objective character; the second
is a subjective or personal limitation. When the latter ignores the former,
[a] question may well arise as to where liberal interpretation ends and nullification
begins.” . . . We must eschew the temptation to
become crusaders.
(Internal citations omitted). Without some modicum of restraint by the majority,
our worker's compensation system may soon succumb to irreparable damage.
The decision of the majority in this case represents
a form of unbridled judicial activism that is an insult to the principles of
statutory construction developed by this Court to maintain the integrity of
the independent branches of state government. Indeed, this case represents yet
another example of the determination of the majority to use the rule of liberality
to undermine any statute or executive regulation designed to promote the fiscal health of our workers' compensation system. In this regard, I
agree with the dissent in Stephen L.H. v. Sherry L.H., espousing that
“[j]udicial activism is one thing; stupid judicial activism quite another.”
195 W. Va. 384, 398 n.2, 465 S.E.2d 841, 855 n.2 (1995) (Neely, C.J.,
dissenting).
Footnote: 1