Justices side with legislators on workers' comp evaluation issue

By Steve Korris | May 15, 2009


CHARLESTON – West Virginia legislators respected the constitutional separation of powers when they trusted workers' compensation managers to devise a method for evaluating spine injuries, the Supreme Court of Appeals has decided.

All five Justices on April 30 enforced a disability claim table that legislators called for but didn't adopt, review or approve.

"Such delegation of rule making authority to the Board of Managers was proper and within the purview of the Legislature's exercise of its legislative power," Justice Robin Jean Davis wrote. "This Court generally accords deference to rules properly promulgated by an administrative agency so long as such rules accord with the intent of the enabling statute pursuant to which they were promulgated."

The decision disappointed former miner Thomas Simpson, who sought to raise his permanent partial disability rating from 13 percent to 15 percent.

In 2002 he slipped off a truck's last step and landed on his back while working for Independence Coal in Madison.

That same year, the Supreme Court declared the state's spine injury claim table unreliable and invalid.

Legislators in 2003 directed the Board of Managers to establish a claims management process with "reasonable and standardized guidelines and parameters."

The managers promulgated a rule that divided lumbar injuries into five classes, with no impairment in the first class and 25 to 28 percent impairment in the fifth class.

Meanwhile Simpson didn't return to work despite two surgeries and therapy.

Surgeon George Orphanos examined him in 2005 and assigned him to the third class on the table. That qualified Simpson for an award from 10 to 13 percent.

Orphanos recommended an adjustment to 15 percent for the second surgery and additional scars, but the Workers Compensation Commission awarded 13 percent.

Simpson appealed to the Office of Judges and lost.

He appealed to the Board of Review and lost.

He appealed to the Supreme Court and, for the first time, challenged the table as a violation of the West Virginia Constitution.

The Constitution requires the legislative, executive and judicial departments to stay "separate and distinct, so that neither shall exercise the powers properly belonging to either of the others."

Simpson's lawyer, Gregory Prudich of Princeton, argued to the Justices that legislators delegated powers they had no right to delegate.

Insurance commissioner Jane Cline, chief regulator of workers compensation, joined Independence Coal in resisting the appeal.

For Cline, Daniel Murdock argued that legislators can delegate rule making authority to an agency as long as the agency doesn't exceed its authority.

To clinch his case he pointed out that legislators have exempted all rules of the Board of Managers from approval requirements in the Administrative Procedures Act.

Though legislators didn't approve the table, the Justices approved it.

Davis wrote that the Board of Managers adhered to the enabling statute and adopted guidelines as instructed.

She wrote that the table "comports with the express intent of the Legislature and is not inconsistent therewith."

Justices Menis Ketchum, Thomas McHugh and Margaret Workman agreed.

So did 16th Circuit Chief Judge Fred Fox of Fairmont. He replaced Chief Justice Brent Benjamin, who disqualified himself.

Sean Harter of Charleston represented Independence Coal.

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