Thompson v. W. Constr., Inc.

248 W.Va. 578

889 S.E.2d 300

Bucky THOMPSON, Claimant Below, Petitioner, v. WESTERN CONSTRUCTION, INC., Employer Below, Respondent.

No. 23-ICA-26

West Virginia Intermediate Court of Appeals.

Submitted: May 16, 2023

Filed: June 15, 2023

Sandra K. Law, Esq., Schrader Companion Duff & Law, PLLC, Wheeling, West Virginia, Counsel for Petitioner

Jeffrey M. Carder, Esq., William J. Ferren & Associates, Charleston, West Virginia, Counsel for Respondent

SCARR, JUDGE:

Petitioner, Bucky Thompson, appeals the January 12, 2023, Workers’ Compensation Board of Review ("Board") order affirming the claim administrator's October 25, 2021, decision that Mr. Thompson was not entitled to compensation under West Virginia Code § 23-4-6(e)(2) (2005) at the rate of six weeks for each percent of disability because he was not employed by Western Construction when he was released to return to work. Having considered the parties’ oral and written arguments, the record on appeal, and the applicable law, we hold that a claimant does not have to be a current employee to recover six weeks of compensation for each percent of disability under § 23-4-6(e)(2), and therefore reverse the decision of the Board and remand this matter for further proceedings consistent with our opinion.

I. Factual and Procedural Background

Mr. Thompson started working for Western Construction as a welder on December 16, 2019. On December 21, 2019, he slipped and fell, injuring his left shoulder. Mr. Thompson continued to work for a few weeks, but the pain in his shoulder increased, and he finally stopped working on January 11, 2020. When he was no longer able to work, he reported his injury and was asked by Western Construction's Human Resources Department to provide medical records pertaining to his injury, to which he complied. Shortly thereafter, he was terminated.

Although Mr. Thompson was terminated in January of 2020, he was not released to return to work until September 14, 2021. When he was released, his employer did not reinstate him in his preinjury job or offer him a similar job. There is no evidence in the record that Mr. Thompson's preinjury job, or a comparable job, was not available when he was released to return to work without any restrictions.

Joseph Grady, M.D., a physician retained by Western Construction to perform an independent medical examination (IME), diagnosed Mr. Thompson with an internal derangement of the left shoulder superimposed upon preexisting arthritis. Based on Dr. Grady's report, the claim administrator granted a 7% permanent partial disability (PPD) award computed on the basis of four weeks of compensation for each percent of disability pursuant to West Virginia Code § 23-4-6(e)(1).

Mr. Thompson did not protest the 7% PPD award, but he did protest the claim administrator's use of four weeks of benefits for each percent of disability under West Virginia Code § 23-4-6(e)(1), arguing that he should have received six weeks compensation for each percent pursuant to West Virginia Code § 23-4-6(e)(2). Under the latter section, a claimant is entitled to six weeks of compensation for each percent of disability when the employer fails to reinstate the employee in his or her preinjury job or one that is comparable.

By order dated January 12, 2023, the Board affirmed the claim administrator's award, finding that § 23-4-6(e)(2) did not apply to Mr. Thompsons's situation, because he had been terminated in January of 2020 but had not been released to return to work until September 14, 2021. The Board reasoned that Mr. Thompson was not an "employee" for purposes of § 23-4-6(e)(2) when he was released to return to work, and therefore was not entitled to six weeks of compensation for each percent of disability. ¹ Mr. Thompson appeals from the Board's order.

II. Standard of Review

Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in part, as follows:

The Intermediate Court of Appeals may affirm the order or decision of the Workers’ Compensation Board of Review or remand the case for further proceedings. It shall reverse, vacate, or modify the order or decision of the Workers’ Compensation Board of Review, if the substantial rights of the petitioner or petitioners have been prejudiced because the Board of Review's findings are:

(1) In violation of statutory provisions;

(2) In excess of the statutory authority or jurisdiction of the Board of Review;

(3) Made upon unlawful procedures;

(4) Affected by other error of law;

(5) Clearly wrong in view of the reliable, probative, and substantial evidence on the whole record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Duff v. Kanawha Cnty. Comm'n , 247 W. Va. 550, ––––, 882 S.E.2d 916, 921, (Ct. App. 2022). Questions of law arising in decisions issued by the Board are reviewed de novo. Justice v. West Virginia Office Insurance Comm'n , 230 W. Va. 80, 83, 736 S.E 2d 80, 83 (2012).

III. Discussion

West Virginia Code § 23-4-6 states in pertinent part that:

Where compensation is due an employee under the provisions of this chapter for personal injury, the compensation shall be as provided in the following schedule:

....

(e)(1) For all awards made on or after the effective date of the amendment and reenactment of this section during the year two thousand three, if the injury causes permanent disability less than permanent total disability, the percentage of disability to total disability shall be determined and the award computed on the basis of four weeks' compensation for each percent of disability....

West Virginia Code § 23-4-6(e)(2) increases the number of weeks of compensation for each percent of disability where a claimant is released to return to work and the preinjury employer does not offer the preinjury job or a comparable job when available. This section states that:

(2) If a claimant is released by his or her treating physician to return to work at the job he or she held before the occupational injury occurred and if the claimant's preinjury employer does not offer the preinjury job or a comparable job to the employee when a position is available to be offered, the award for the percentage of partial disability shall be computed on the basis of six weeks of compensation for each percent of disability.

Admittedly, the language of West Virginia Code § 23-4-6(e)(2) may be somewhat confusing, referring in two places to the "claimant" and in one place to the "employee." Of course, a "claimant" is not necessarily someone who is currently employed by the employer, ² but Western Construction argues that the use of "employee" later in this subsection limits its application, and the increased benefits it provides, to current employees. ³ Mr. Thompson, however, argues that the relevant factor is whether someone was an employee at the time of their injury, not whether they are an employee when they are released to return to work. Given the language of West Virginia Code § 23-4-6, and the proper role of courts in interpreting our workers’ compensation statutes, we decline to read in a limitation on recovery that was not clearly required by the legislature, either through express language or necessary implication.

Section 23-4-6 begins with the statement that "[w]here compensation is due an employee under the provisions of this chapter for personal injury, the compensation shall be provided in the following schedule...." (emphasis added). Subsequent language in this statute makes it clear that its use of "employee" is not limited to claimants who are currently employed. Subsection (d), which pertains to permanent total disability benefits uses the word "claimant" twice. Of course, claimants eligible for permanent total disability, given the nature of their injuries, are likely to be former, rather than current employees, and many of them will fall into the category of former employees. Thus, "employees" under § 23-4-6 are not limited to current employees.

In interpreting this statute, we are also mindful of the nature of the workers’ compensation system, which is a creature of statute, and requires the legislature to balance "the conflicting goals of minimizing premiums while providing full and fair compensation to injured workers...." Syl. Pt. 4, State ex rel. Beirne v. Smith , 214 W. Va. 771, 591 S.E. 2d 329, (2003) (per curiam). This task is "the exclusive province of our publicly elected legislators, and is not to be invaded by the Commissioner, or the Courts." Id. Thus, it is not our role to rewrite the statute to create exceptions to recovery where the legislature has not seen fit to do so.

Furthermore, we note that our high court has refused on a number of occasions to find limits on recovery that were not clearly and specifically written into a statute by the legislature. See , e.g. , Bevins v. West Virginia Office of Ins. Com'r , 227 W. Va. 315, 328, 708 S.E. 2d 509, 522 (2010) ("... because the Legislature has elected not to include the receipt of Social Security disability benefits within the list of reasons rendering a claimant ineligible to receive workers' compensation benefits and because it is not the province of this Court to alter statutes which the Legislature has seen fit to enact, it must be presumed that the Legislature did not intend to impose such a bar upon recipients of Social Security disability benefits.") (emphasis in original); State ex rel. McKenzie v. Smith , 212 W. Va. 288, 293 n. 1, 569 S.E.2d 809, 814 n.1 (2002) ("The Workers’ Compensation Act does not contain any limitation concerning ‘seasonal employees’ ..."); Moran v. Rosciti Const. Co. , 240 W. Va. 692, 698, 815 S.E. 2d 503, 509 (2018) (a workers’ compensation provision which provided a credit for worker's compensation benefits or damages recovered from an employer under the laws of another state did not cover third party settlements because "[t]he absence of any mention of a recovery from a...