Kevin S. Goff v. W. Va. Ofc. of Ins. Comm./W. Va. Dept. of Natural Resources , 236 W. Va. 393 ( 2015 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2015 Term
_______________
FILED
No. 14-0977 November 18, 2015
_______________ released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
KEVIN S. GOFF,
Petitioner
v.
WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER and WEST
VIRGINIA DEPARTMENT OF NATURAL RESOURCES,
Respondents
____________________________________________________________
Appeal from the
Workers’ Compensation Board of Review
Appeal No. 2049243
Claim No. 2011002265
REVERSED AND REMANDED
____________________________________________________________
Submitted: September 22, 2015
Filed: November 18, 2015
Jonathan C. Bowman, Esq. Lucinda Fluharty, Esq.
BOWMAN LAW OFFICE JACKSON KELLY PLLC
Wheeling, West Virginia Wheeling, West Virginia
Counsel for the Petitioner Counsel for the Respondent Employer
JUSTICE BENJAMIN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
The statutory percentage disability award contained within W. Va. Code §
23-5-6(f) (2005) for the total functional loss of vision of an eye caused by an
occupational injury does not preclude an additional award, if appropriate, for permanent
disfiguring effects and other permanent disabling effects caused by the physical removal
of the eye itself.
Benjamin, Justice:
The facts of this appeal are largely uncontested. At issue is the question of
whether a claimant who lost an eye as a result of a workplace injury is limited to the
statutory award set forth in W. Va. Code § 23-5-6(f) (2005) for loss of vision in one eye.
For the following reasons, we reverse the decision of the West Virginia Worker
Compensation Board of Review (“Board”) and remand this claim for further
development of whether Kevin S. Goff (“Mr. Goff”) suffered additional impairment
related to the physical removal of his right eye, in addition to the previously awarded
statutory amount of the loss of vision in his right eye.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mr. Goff, a police officer for the Department of Natural Resources, was
injured in the course of his employment when he was struck in the right eye by a briar.
The injury took place on February 6, 2011. Mr. Goff developed an infection in his right
eye and ultimately underwent the removal of his injured right eye. He was fitted with a
prosthetic eye, but has needed to seek continuing treatment for conjunctivitis, blepharitis
and other conditions related to the eye socket itself. In addition, medical reports indicate
that Mr. Goff suffered a permanent disfigurement to the area around his eye.
Throughout the litigation of this claim, Mr. Goff was seen by a number of
physicians.1 Mr. Goff was seen by Keith Cox, M.D., in July of 2011 for the purpose of
determining the amount of impairment he suffered from the loss of his right eye. Dr. Cox
rated Mr. Goff’s impairment at twenty-four percent, according to the Guides to the
Evaluation of Permanent Impairment, 4th Ed. (“the Guides”).2 Dr. Cox increased that
amount to thirty-three percent, based upon the statutory award contained in W. Va. Code
§ 23-5-6(f). This statute provides for a set percentage of disability to be awarded based
upon injuries related to the loss or severance of, or loss of use of, certain body parts. The
statutory mandate for “the total and irrevocable loss of sight in one eye” is thirty-three
percent. W. Va. Code § 23-5-6(f). On the basis of this language, Mr. Goff was awarded
thirty-three percent permanent partial disability. Nothing was awarded for the permanent
impairment caused by his continuing problems with infections and related conditions in
his right eye socket or for the permanent disfigurement caused by his eye injury.
Dr. Michael A. Krasnow evaluated Mr. Goff in 2012 and found that no
additional permanent partial disability was warranted over and above the thirty-three
percent previously awarded for the loss of sight in one eye. The Claims Administrator
1
This claim remained in litigation because of Mr. Goff’s timely protests to the
termination of temporary total disability benefits.
2
For injuries that happen after May 12, 1995, W. Va. Code § 23-4-6 (2005) and
W. Va. Code R. § 85 C.S.R 20 et seq. (2006) require the use of the Guides to determine a
claimant’s medical impairment for the purpose of permanent partial disability awards.
1
(“CA”) granted no additional permanent partial disability to Mr. Goff on the basis of Dr.
Krasnow’s report. Mr. Goff filed a timely protest to this ruling.
In support of his appeal, Mr. Goff submitted an evaluation by Dr. Bruce
Guberman. Dr. Guberman agreed with the prior medical assessments that found that Mr.
Goff’s loss of vision warranted a thirty-three percent disability. However, he found
additional impairment associated with the injury, including facial deformities related to
the removal of Mr. Goff’s eye as well as several chronic conditions related to the
prosthetic eye, including conjunctivitis and blepharitis. Dr. Guberman recommended that
Mr. Goff receive an additional ten percent impairment as a result of these conditions.
Dr. Christopher Martin saw Mr. Goff at the request of the employer. Dr.
Martin agreed that Mr. Goff’s injury warranted a thirty-three disability, but disagreed
with Dr. Guberman’s assessment that there were further conditions that supported an
award of additional impairment. Dr. Martin disagreed with Dr. Guberman’s opinion that
there were additional deformities related to the injury.
The Office of Judges (“OOJ”) affirmed the CA’s award of no additional
permanent partial disability above and beyond the statutory thirty-three percent disability
award based upon the statute. In its order, the OOJ found that “the claimant’s [thirty­
three percent] statutory PPD award for the loss of vision of the right eye is a total and
complete grant of impairment for that eye.” The OOJ further stated that “a grant of any
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additional impairment for the eye [for facial disfigurement, chronic blepharitis and
conjunctivitis] would compensate the claimant twice for that same loss.”3
Mr. Goff timely appealed this ruling to the Board. In an order entered
August 26, 2014, the Board affirmed the denial of additional permanent total disability
benefits. Mr. Goff now appeals the Board’s order to this Court.
II. STANDARD OF REVIEW
Our standard of review is stated in W. Va. Code § 23-5-15(d) (2005) as
follows:
If the decision of the board effectively represents a
reversal of a prior ruling of either the commission or the
Office of Judges that was entered on the same issue in the
same claim, the decision of the board may be reversed or
modified by the Supreme Court of Appeals only if the
decision is in clear violation of constitutional or statutory
provisions, is clearly the result of erroneous conclusions of
law, or is so clearly wrong based upon the evidentiary record
that even when all inferences are resolved in favor of the
board’s findings, reasoning and conclusions, there is
insufficient support to sustain the decision. The court may not
conduct a de novo re-weighing of the evidentiary record. If
the court reverses or modifies a decision of the board
pursuant to this subsection, it shall state with specificity the
basis for the reversal or modification and the manner in which
the decision of the board clearly violated constitutional or
statutory provisions, resulted from erroneous conclusions of
law, or was so clearly wrong based upon the evidentiary
3
The OOJ relied upon Linville v. State Compensation Commissioner, 112 W. Va.
522, 165 S.E. 803 (1932). See discussion infra Part III.
3
record that even when all inferences are resolved in favor of
the board’s findings, reasoning and conclusions, there is
insufficient support to sustain the decision.
W. Va. Code § 23-5-15(b) provides that this Court shall consider the record provided by
the Board and give deference to that body’s findings, reasoning and conclusions. See
Hammons v. W. Va. Office of the Ins. Comm’r., 235 W. Va. 577, 775 S.E.2d 458 (2015).
With these standards in mind, we proceed to the arguments of the parties.
III. ANALYSIS
Since Mr. Goff has already received the statutory thirty-three percent
disability award for the full functional loss of vision in his right eye, the issue before this
Court is whether Mr. Goff is now precluded by the workers’ compensation statute from
seeking to recover an additional award for permanent disability caused by the additional
physical loss of his right eye, including permanent conditions caused by the placement of
a prosthetic eye in his eye socket and the disfigurement caused by his eye injury. In
considering this question, we are reminded that West Virginia’s workers’ compensation
system was created by the Legislature as a comprehensive statutory system of insurance
for work-related injuries to serve West Virginia’s employers and employees. See
Meadows v. Lewis, 172 W. Va. 457, 307 S.E.2d 625 (1983). In considering this legal
question, we therefore endeavor to give effect to the Legislature’s intentions.
4
The Board below determined that Mr. Goff may not seek recovery beyond
the functional loss of his vision for any permanent conditions resulting from the physical
loss of his right eye, concluding that Mr. Goff is legally entitled only to the statutory
percentage of disability contained in W. Va. Code § 23-4-6(f) (2005) for a full functional
loss of vision in an eye. The statute upon which the Board relied states as follows:
If the injury results in the total loss by severance of
any of the members named in this subdivision, the percentage
of disability shall be determined by the percentage of
disability, specified in this table:
....
The total and irrevocable loss of the sight of one eye
shall be considered a thirty-three percent disability. For the
partial loss of vision in one or both eyes, the percentages of
disability shall be determined by the commission, using as a
basis the total loss of one eye.
W. Va. Code § 23-4-6(f) (emphasis added).
The medical evidence is largely uncontroverted in regard to the current
status of Mr. Goff’s eye injury. Mr. Goff argues that based upon the report of Dr.
Guberman, he should be awarded a permanent disability award beyond the statutory
thirty-three percent award due to the permanent physical conditions caused by the
removal of his eye distinct from and in addition to the functional loss of vision in his
right eye. These alleged conditions included alleged facial disfigurement from a
prosthetic right eye, chronic blepharitis (eyelid inflammation) and conjunctivitis, all
purportedly related to the placement of a prosthetic right eye.
5
The employer contends that Mr. Goff is limited to the statutory thirty-three
percent award for the total loss of sight in one eye, regardless of what additional
conditions may relate to and result from Mr. Goff’s occupational injury to his right eye.
In other words, the employer argues that the statutory award is the extent of permanent
disability which Mr. Goff may receive related to his occupational eye injury and,
therefore, that the thirty-three per cent award includes any and all corollary physical
disability beyond the loss of vision of an eye. The Board below agreed. This case
therefore rests upon whether the Board was legally correct in concluding that Mr. Goff’s
disability percentage for the functional loss of his eye and its corollary physical effects is
limited to the thirty-three percent statutory amount for functional loss of vision in one
eye.
There is no disagreement that the relevant language contained within the
applicable statute is clear and unambiguous, and therefore not subject to more than one
interpretation. See Fountain Place Cinema 8, LLC v. Morris, 227 W. Va. 249, 253, 707
S.E.2d 859, 863 (2011) (“A statute is ambiguous when the statute’s language connotes
‘doubtfulness, doubleness of meaning . . . indistinctness or uncertainty of an
expression[.]’” quoting Crockett v. Andrews, 153 W. Va. 714, 718-19, 172 S.E.2d 384,
387 (1970). see also Martin v. Randolph Cty. Bd. of Ed., 195 W. Va. 297, 312, 465
S.E.2d 399, 414 (1995) (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249, 252–54
(1992) (‘“[C]ourts must presume that a legislature says in a statute what it means and
means what it says there.’”). We have consistently held that when a statute is
6
unambiguous, we accept its plain meaning as illustrated by syllabus point 2, State ex rel.
Underwood v. Silverstein, 167 W. Va. 121, 278 S.E.2d 886 (1981): ‘Where the language
of a statue is clear and without ambiguity the plain meaning is to be accepted without
resorting to the rules of interpretation.’ Syllabus Point 2, State v. Elder, 152 W.Va. 571,
165 S.E.2d 108 (1968).”
With respect to losses due to occupational eye injuries, the Legislature
limited its statutory wording to the functional loss of sight of an eye, not to the resulting
corollary permanent effects resulting from the actual physical loss of an eye. The
Legislature could have gone farther had it wanted to include the permanent effects
resulting from a physical loss of an eye just as it did within the statute with respect to the
physical severance of limbs and other body parts such as toes, feet, legs and so on—but it
did not. We therefore decline to write into the statute something which the Legislature
did not—but obviously could have. For us to do so, we would need to read into the
statute words which simply are not there. We therefore give effect to the plain meaning
of the statute as the Legislature obviously intended and determine that Mr. Goff is not
precluded from seeking an additional percent of disability for permanent impairment
from his eye injury beyond that of total loss of vision in his right eye.
In finding that Mr. Goff may seek a permanent disability award herein for
the physical harm caused by the work-related loss of his right eye over and beyond the
functional loss of vision, we do not disturb our holding in Linville v. State Compensation
7
Commissioner, 112 W. Va. 522, 165 S.E. 803 (1932) (relating to the effect of an award
for the total physical, not functional, loss of a foot). In Linville, the claimant had already
received a disability award for his foot equal to the statutory award for the total physical
loss of the foot. In Linville, the applicable statutory section related to the total physical
loss of a limb, which includes all functional uses related to the loss of that limb.
Therefore, the claimant could not recover any greater award than for the total physical
loss of the limb. Here, however, the Legislature chose its words carefully, focusing on
something short of a total physical loss of the eye—limiting its words to the “loss of
vision” or “sight” of the eye, rather than the impairments related to the loss of the
physical eye itself. Giving effect to this plainly worded statute, we therefore hold that the
statutory percentage disability award contained within W. Va. Code § 23-5-6(f) (2005)
for the total functional loss of vision of an eye caused by an occupational injury does not
preclude an additional award, if appropriate, for permanent disfiguring effects and other
permanent disabling effects caused by the physical removal of the eye itself.
In holding that Mr. Goff may be entitled to an award for permanent
disability beyond the statutory thirty-three percent awarded, we do not determine what
the appropriate additional percentage of disability, if any, might be. Because the
underlying order relied upon the presumption that the award must be limited to the
statutory impairment for loss of vision in one eye, our review of the limited appellate
record reveals that the evidence related to such potential additional disability has not been
fully developed or analyzed.
8
Finding that the Board erred as a matter of law in its application of W. Va.
Code § 23-5-6(f), we therefore reverse the order of the Board and remand this case for
further development of medical evidence related to what, if any, additional award Mr.
Goff should receive for permanent disability caused by the physical removal of his right
eye over and beyond the loss of his vision in that eye.
IV. CONCLUSION
For the foregoing reasons, we reverse the Board’s order of August 26,
2014, that affirmed the denial of additional permanent partial disability to Mr. Goff, and
remand this claim for further development of medical evidence related to what, if any,
additional impairment should be awarded to Mr. Goff for permanent disability caused by
the physical removal of his right eye beyond the loss of his vision in that eye.
Reversed and remanded.
9