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Moran v. Rosciti Construction Co., LLC

Supreme Court of West Virginia

June 4, 2018

ROSCITI CONSTRUCTION CO., LLC, Respondent Below, Respondent

          Submitted: May 9, 2018

          Appeal from the Workers' Compensation Board of Review Claim No. 2012038847 Appeal No. 2051864

          Kelly 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.


         1. When 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 wrong.

         2. An 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.


          DAVIS, JUSTICE

         This 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.


         Mr. 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.[1] The room was found to contain high levels of carbon monoxide, which had caused Mr. Moran's death.[2]

         Thereafter, 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. [3] 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. [4] 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).

         Meanwhile, 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).[5] 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.

         Due to 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.

         The BOR 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.

         This appeal followed.


         The standards for this Court's review of decisions rendered by the BOR are set out in W.Va. Code § 23-5-15 ...

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