Edward Reed v. Exel Logistics, Inc. ( 2018 )

FILED
June 6, 2018
No. 17-0864 – Edward Reed v. Exel Logistics, Inc. released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
WALKER, J., dissenting. OF WEST VIRGINIA
West Virginia law limits a claimant’s entitlement to temporary total
disability (TTD) benefits for a single injury to 104 weeks of payments.1 Mr. Reed received
TTD benefits for 156 days after June 28, 2015, the 104-week statutory cut-off applicable
to his claim. So, I would affirm the Board of Review’s decision that Mr. Reed was not
entitled to the TTD benefits he received following June 28, 2015, and that the amount of
those benefits may be offset from his permanent partial disability (PPD) award and any
future disability payments to which he may become entitled.
West Virginia Code § 23-4-6(c) (2017) states, in pertinent part that “no
person may receive temporary total disability benefits under an award for a single injury
for a period exceeding one hundred four weeks from the effective date of the amendment
and reenactment of this section in the year two thousand three.” This language
unambiguously limits a claimant’s entitlement to TTD benefits for a single injury to a
period of 104 weeks. Here, Mr. Reed received TTD benefits for a period of time longer
than that permitted by § 23-4-6(c). Thus, as the claims administrator and Board of Review
properly concluded, Mr. Reed received TTD benefits to which he was never entitled, and
he must now repay those benefits through an offset against his PPD award and any future
1
West Virginia Code § 23-4-6(c) (2017).
disability awards pursuant to West Virginia Code of State Regulations § 85-1-12 (2009)
(“Overpayments”) and its particular limitations.
The majority’s foray into West Virginia Code § 23-4-1c(h) (2017) is
unnecessary. This Court has previously explained that “[t]he overpayment provisions of
W.Va. Code, 23-4-1c, apply only where the Commissioner determines in a W.Va.Code, 23-
5-1, proceeding, that the claimant was not lawfully entitled to the temporary total disability
benefits originally by virtue of the fact that the claim did not jurisdictionally qualify.”2
Further emphasizing that an employer protest made pursuant to § 23-5-1 relates to a
claimant’s original entitlement to TTD benefits, we also explained that such a protest “has
to be made within thirty days from receipt of the order awarding the benefits,” and “is
ordinarily made where the employer believes that the claimant was not injured in the course
of and resulting from covered employment.”3 In sum, we made clear in Mitchell that the
central purpose of a § 23-5-1 protest—that is, the predicate to the application of the
overpayment procedures in § 23-4-1c(h)—“is to initially contest the claimant’s right to any
2
Syl. Pt. 4, Mitchell v. State Workmen’s Comp. Comm’r, 163 W. Va. 107, 256
S.E.2d 1 (1979) (emphasis added).
3
Id. at 123, 256 S.E.2d at 12. Other jurisdictional requirements recognized by
Mitchell included the “timeliness of the filing under W.Va.Code, 23-4-15, or reapplication
under W.Va.Code, 23-4-16, or whether the injury was ‘self-inflicted’ or caused by ‘willful
misconduct, willful disobedience to such rules and regulations . . .’ under W.Va.Code, 23-
4-2.” Butcher v. State Workers’ Comp. Comm’r, 173 W. Va. 306, 311 n.7, 315 S.E.2d 563,
568 n.7 (1983) (quoting Mitchell, 163 W.Va. at 123 n.11, 256 S.E.2d at 12 n.11).
2
disability benefits—that is, the claimant does not meet the various statutory prerequisites
to entitle him to compensation.”4
In this case, the claims administrator and the Board of Review did not declare
an overpayment based on the conclusion that Mr. Reed was not initially entitled to TTD
benefits because, for example, he did not sustain his injury in the course of and resulting
from covered employment. Rather, they declared an overpayment because they concluded
that Mr. Reed had received TTD benefits for 156 days beyond the 104-week statutory cut-
off imposed by West Virginia Code § 23-4-6(c). Exhausting one’s statutory entitlement to
TTD benefits is different from failing to satisfy the jurisdictional requirements necessary
to qualify for workers’ compensation benefits, initially. Because the issue presented by
the overpayment to Mr. Reed was the statutorily-required termination of TTD benefits
pursuant to § 23-4-6(c), and not his initial entitlement to TTD benefits contested pursuant
to § 23-5-1, the overpayment provisions of § 23-4-1c(h) are simply inapplicable to this
matter.5
4
Id. (emphasis added); see also Butcher, 173 W. Va. at 311–12, 315 S.E.2d at 569
(“However, when the hearings are completed, if the Commissioner finds that the claim did
not jurisdictionally qualify, the claimant can be required to repay the benefits already
received under W.Va.Code, 23-4-1c. This result obtains because the claimant has been
found not to have lawfully qualified for the temporary total disability benefits initially since
his claim did not jurisdictionally qualify . . . .”) (emphasis added).
5
See Syl. Pt. 4, Mitchell, 163 W. Va. at 107, 256 S.E.2d at 1.
3
Mr. Reed’s appeal presents unfortunate circumstances. As the majority
states, we do not know why the claims administrator continued Mr. Reed’s TTD benefits
beyond the 104-week cutoff. But, the claims administrator did and Mr. Reed received more
TTD benefits than he should have, albeit through no fault of his own. These particular
facts, however, do not create a license to discount either the 104-week limitation upon the
availability of TTD benefits found in West Virginia Code § 23-4-6(c) or the limited
circumstances to which the overpayment provisions of § 23-4-1c(h) apply. Furthermore,
West Virginia Code of State Rules § 85-1-12—the overpayment regulation invoked by the
Board’s order—accounts for the majority’s equitable concerns by subjecting only 30% of
Mr. Reed’s PPD award and the periodic amounts of certain, future benefits to offset.6
Therefore, I would defer to the Board of Review’s decision that any TTD benefits paid to
Mr. Reed on or after June 28, 2015 are overpayments which must be offset from his PPD
award and any future disability awards, and I respectfully dissent.
6
See W. Va. C.S.R. § 85-1-12.3 (2009) (“Collection of overpayments from
temporary total disability benefits, permanent total disability benefits, temporary total
rehabilitation benefits and temporary partial rehabilitation benefits is limited to thirty
percent (30%) of the periodic benefit amount (i.e. weekly, bi-weekly, monthly, etc.):
Provided, That if the overpayment was based upon fraud, abuse or mistake, caused in
whole or in part, by the claimant or his or her agent, then the amount of the overpayment
may be recovered in full by withholding 100% of the periodic benefit amount until the
overpayment is recaptured.”).
4