LOUISE MORAN, DEPENDENT OF WILLIAM MORAN (DECEASED), Claimant Below, Petitioner
ROSCITI CONSTRUCTION CO., LLC, Respondent Below, Respondent
Submitted: May 9, 2018
from the Workers' Compensation Board of Review Claim No.
2012038847 Appeal No. 2051864
Elswick-Hall The Masters Law Firm lc Charleston, West
Virginia Attorney for the Petitioner.
Jeffrey B. Brannon Cipriani & Werner, P.C. Charleston,
West Virginia Attorney for the Respondent.
BY THE COURT
reviewing a decision of the West Virginia Workers'
Compensation Board of Review ("the Board"), this
Court will give deference to the Board's findings of fact
and will review de novo its legal conclusions. The decision
of the Board may be reversed or modified only if it (1) is in
clear violation of a constitutional or statutory provision;
(2) is clearly the result of erroneous conclusions of law; or
(3) is based upon material findings of fact that are clearly
award of dependents' death benefits under the
workers' compensation laws of West Virginia is payable,
notwithstanding W.Va. Code § 23-2-1c(d) (2003) (Repl.
Vol. 2017), while benefits awarded under the workers'
compensation laws of another state for the same injury are
suspended due to a third-party settlement.
appeal raises the issue of whether W.Va. Code §
23-2-1c(d) (2003) (Repl. Vol. 2017) applies when awards for
workers' compensation dependents' death benefits
("dependents' benefits") have been properly
granted under the laws of West Virginia and another state for
the same injury, but the benefits awarded under the laws of
the other state have been suspended due to a related
third-party settlement. After considering the parties'
briefs, the relevant law, and oral arguments, we find that
W.Va. Code § 23-2-1c(d) does not apply and, therefore,
dependents' benefits awarded under West Virginia law are
payable as long as the benefits awarded under the laws of the
other state remain suspended. Accordingly, we reverse the
West Virginia Workers' Compensation Board of Review.
FACTUAL AND PROCEDURAL HISTORY
William Moran ("Mr. Moran") was an employee of the
respondent, Rosciti Construction Company, LLC (hereinafter
"Rosciti"), when he succumbed to carbon monoxide
intoxication and passed away on January 31, 2012, in West
Virginia. Rosciti is based in Rhode Island, where Mr. Moran
lived. Mr. Moran was part of a Rosciti crew that had been
sent to West Virginia to lay fiber optic lines at Yeager
Airport in Charleston for the West Virginia National Guard.
The Rosciti crew, including Mr. Moran, arrived in South
Charleston, West Virginia, on the evening of January 30,
2012, and checked into a local hotel that apparently had been
selected by Rosciti. The following morning, Mr. Moran was
found deceased in his hotel room; another crew member who was
staying in the same room was unresponsive. The room was
found to contain high levels of carbon monoxide, which had
caused Mr. Moran's death.
the petitioner, Mr. Moran's wife, Louise Moran
("Mrs. Moran"), filed workers' compensation
claims for dependents' benefits in both Rhode Island and
West Virginia on behalf of herself, her twelve-year-old
daughter, and her father-in-law, as dependents of the
decedent, Mr. Moran.  The Rhode Island claim resulted in an
award of weekly dependents' benefits in the amount of
$765.15. The West Virginia claim originally was denied by the
claims administrator. On appeal, the decision was reversed by
the West Virginia Workers' Compensation Office of Judges
("OOJ"). In granting dependents benefits, the OOJ
noted that the award was subject to W.Va. Code §
23-2-1c(d) (2003), which provides for a credit of
workers' compensation benefits "awarded or
recovered" under laws of another state. The West
Virginia Workers' Compensation Board of Review
("BOR") affirmed as modified the decision of the
OOJ.  This Court affirmed the BOR decision in a
prior appeal of this matter. See Rosciti Constr. Co., LLC
v. Moran, No. 14-0398, 2015 WL 6839865 ( W.Va. Nov. 4,
2015) (memorandum decision). Nevertheless, no dependents'
benefits were actually paid out in connection with Mrs.
Moran's West Virginia award because the $765.15 in weekly
benefits paid in relation to the Rhode Island claim were
greater than, and credited against, the West Virginia
benefits awarded, which were determined to be $711.30.
See W.Va. Code § 23-2-1c(d).
Mrs. Moran reached a confidential settlement with several
defendants in a civil action she filed in relation to Mr.
Moran's death. As a result of this third-party
settlement, and pursuant to Rhode Island law, her Rhode
Island dependents' benefits were suspended on December
11, 2014. See R.I. Gen. Laws § 28-35-58(a)
(2002). The parties have stipulated that the
third-party settlement was in excess of the amount required
to meet the weekly Rhode Island benefits for the remainder of
Mrs. Moran's life expectancy. As a result, Mrs.
Moran's Rhode Island dependents' benefits are
expected to remain suspended.
the suspension of her Rhode Island benefits, Mrs. Moran
requested payment of West Virginia dependents' benefits.
She reasoned that, since her Rhode Island benefits had been
suspended, there were no Rhode Island payments to be credited
against her West Virginia benefits. The claims administrator
denied Mrs. Moran's request by order entered December 2,
2015, finding that "Rhode Island benefits are still
being paid but have been suspended and/or are being offset
pending exhaustion of the excess damages paid by the
Third-Party's [sic] pursuant to the settlement."
Mrs. Moran protested the order. The OOJ affirmed the claims
administrator and explained that
[i]t is clear that the claimant was not entitled to any
dependents [sic] benefits from the state of West Virginia as
long as she was being paid and received an amount in excess
of the workers' compensation benefits by the state of
Rhode Island in the form of workers' compensation
benefits. A more complex issue is how does the third-party
settlement affect the obligation of West Virginia to pay
dependents [sic] benefits. The amount of Rhode Island's
workers' compensation benefits [that] the claimant would
receive if there was no third-party settlement is being
deducted from the third-party settlement. The Office of
Judges cannot base this Decision on how the state of Rhode
Island applies their subrogation law. It is found that the
reduction of the third-party settlement by the weekly rate of
Rhode Island workers' compensation benefits represents a
recovery of damages to the claimant from the state of Rhode
Island, and therefore, the Order of December 2, 2015, is
found to be proper and in accordance with the intent of the
above cited statutes.
affirmed the OOJ's order, but did not adopt the above
quoted discussion. Instead, the BOR reasoned that
[i]n the West Virginia claim, dependent's [sic] benefits
were granted subject to West Virginia Code § 23-2-1c(d),
which provides as follows: "If any employee or his or
her dependents are awarded workers' compensation benefits
or recover damages from the employer under the laws of
another state for an injury received in the course of and
resulting from the employment, the amount awarded or
recovered, whether paid or to be paid in
future installments, shall be credited against the amount of
any benefits payable under this chapter for the same
injury." [Emphasis added.] Dependent's [sic]
benefits in the amount of $129, 984.61 were paid
under the Rhode Island workers' compensation claim. Then
the benefits were suspended pursuant to the dependent's
decision to enter into a settlement agreement in a
third-party civil action. The dependent knew or should have
known that the laws of Rhode Island allowed for suspension of
workers' compensation dependents [sic] benefits. The
Rhode Island claim remains an active claim and additional
benefits may be payable under that claim. After considering
all the factors, the Board concludes that the claims
administrator's order dated December 2, 2015, is proper
and in accordance with the statutes.
STANDARD OF REVIEW
standards for this Court's review of decisions rendered
by the BOR are set out in W.Va. Code § 23-5-15 ...