Submitted: May 9, 2018
from the Workers' Compensation Board of Review Claim No.
2014000133 Appeal No. 2051867
Jane Glauser, Esq. Schrader Byrd & Companion, PLLC
Wheeling, West Virginia Counsel for the Petitioner
Warner Hunter, Esq. Pullin, Fowler, Flanagan, Brown &
Poe, PLLC Charleston, West Virginia Counsel for the
a question on appeal from the Workers Compensation Board of
Review raises a question of law, under W.Va. Code
§ 23-5-15  this Court reviews the Board's
resolution of the question de novo.
"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
"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).
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.
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) , 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.
FACTUAL AND PROCEDURAL BACKGROUND
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,  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.
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.
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
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.
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,
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) . 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,
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.
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 ...