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Reed v. Exel Logistics, Inc.

Supreme Court of West Virginia

June 6, 2018

EDWARD REED, Petitioner
v.
EXEL LOGISTICS, INC., Respondent

          Submitted: May 9, 2018

          Appeal from the Workers' Compensation Board of Review Claim No. 2014000133 Appeal No. 2051867

          M. Jane Glauser, Esq. Schrader Byrd & Companion, PLLC Wheeling, West Virginia Counsel for the Petitioner

          Lisa Warner Hunter, Esq. Pullin, Fowler, Flanagan, Brown & Poe, PLLC Charleston, West Virginia Counsel for the Respondent

         SYLLABUS

         1. When a question on appeal from the Workers Compensation Board of Review raises a question of law, under W.Va. Code § 23-5-15 [2005] this Court reviews the Board's resolution of the question de novo.

         2. "The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syllabus Point 1, Smith v. State Workmen's Comp. Com'r, 159 W.Va. 108, 219 S.E.2d 361 (1975).

         3. "A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect." Syllabus Point 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).

          OPINION

          Ketchum, Justice

         In this appeal from the Workers' Compensation Board of Review, an employer paid temporary total disability benefits to a claimant for almost two-and-a-half years while the claimant was undergoing medical and physical rehabilitation. Months later, the employer discovered it had paid the claimant benefits for an extra 156 days beyond the date the employer was statutorily required to pay. The employer then declared those 156 days an "overpayment" and sought to recover the benefits from the claimant.

         The Board of Review concluded that, under our workers' compensation laws, the employer could reclaim those benefits. However, this Court finds the Board of Review has misread those laws. Under the relevant workers' compensation law, W.Va. Code § 23-4-1c(h) [2009], an employer is required to (1) give the claimant notice and clearly move to modify or terminate temporary total disability benefits on a specific date; (2) be initially unsuccessful in the modification or termination; and then (3) receive a successful ruling on the modification or termination in an adversarial proceeding. Only then may the employer recover the benefits overpaid between the date of the motion and date of the successful ruling. As set forth below, because the employer never sought to modify or terminate the benefits until 156 days after the statutory deadline, and wholly failed to follow the process set out in W.Va. Code § 23-4-1c(h), we reverse the Board of Review.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The claimant in this workers' compensation case is Edward Reed, who worked as a shuttle driver for his employer, Exel Logistics, Inc. On June 27, 2013, the claimant stepped on the frame of a truck and slipped. He heard a "snap" in his left foot as he fell. A doctor diagnosed the claimant with a left ankle fracture, [1] and he underwent several surgeries to repair and stabilize the injury. The record indicates that, despite the surgeries, the claimant continued to have instability in the ankle.

         The claimant promptly submitted a claim for workers' compensation benefits, and his employer's workers' compensation insurer promptly found the claim compensable. More importantly, the claims examiner for the insurer promptly began paying the claimant temporary total disability benefits of $67.37 a day.

         The claimant continued to visit doctors and physical therapists over the next two-and-a-half years. Then, on November 25, 2015, the claimant's doctor prepared a "Physician's Report of Work Ability" wherein he declared that the claimant had reached his maximum degree of medical improvement ("MMI"). The doctor also opined that the claimant was a candidate for vocational rehabilitation services focused on returning the claimant to work.

         In response to the doctor's report of MMI, the claims examiner halted the claimant's temporary total disability benefits, effective November 24, 2015. Additionally, the claims examiner entered orders refusing to approve further physical therapy or vocational evaluations.

          A physician examined the claimant for any permanent impairment caused by his work-related injury. Based upon that examination, the claims examiner granted a 4% permanent partial disability award to the claimant, equal to $7, 553.44.

         However, West Virginia law limits the payment of temporary total disability benefits to a claimant to a maximium period of "one hundred four weeks." W.Va. Code 23-4-6(c) [2005]. In an order dated June 22, 2016, relying upon this statute, the claims examiner for the first time decided that the payment of temporary total disability benefits to the claimant should have terminated two years after his injury, that is, by June 27, 2015. The insurer's claims examiner retroactively declared that the insurer had improperly paid the claimant benefits for 156 days beyond the 104-week statutory cap, until November 24, 2015.

         The claims examiner calculated that the insurer had overpaid the claimant $10, 509.72. Using this overpayment figure, the claims examiner refused to pay the claimant his permanent partial disability award and instead declared that the claimant had a remaining overpayment - to be credited against any future award - of $2, 956.28.

         The claimant protested the claims examiner's overpayment order to the Office of Judges. On March 6, 2017, the Office of Judges entered an order reversing the claims examiner and finding that the claims examiner had failed to timely seek to terminate the claimant's benefits in June 2015, or to otherwise comply with workers' compensation laws pertaining to the modification or overpayment of temporary total disability benefits. The Office of Judges therefore concluded that the claims examiner was legally prohibited from declaring an overpayment of the 156 days of benefits paid after that date. However, in an order dated ...


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