Opinion
No. 15–0397
09-19-2016
Pioneer Pipe, Inc., Petitioner v. Stephen Swain, Brayman Construction, and J & J General Maintenance, Inc., Respondents
James W. Heslep, Esq, Steptoe & Johnson PLLC, Bridgeport, West Virginia, Counsel for Petitioner, Pioneer Pipe. Jeffrey B. Brannon, Esq., Cipriani & Werner, P.C., Charleston, West Virginia, Counsel for Respondent, J & J General Maintenance. Lawrence B. Lowry, Esq, Barrett, Chafin, Lowry & Amos, Huntington, West Virginia, Counsel for Respondent Stephen Swain. Lisa Warner Hunter, Esq., Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Charleston, West Virginia, Counsel for Respondent, Brayman Construction.
James W. Heslep, Esq, Steptoe & Johnson PLLC, Bridgeport, West Virginia, Counsel for Petitioner, Pioneer Pipe.
Jeffrey B. Brannon, Esq., Cipriani & Werner, P.C., Charleston, West Virginia, Counsel for Respondent, J & J General Maintenance.
Lawrence B. Lowry, Esq, Barrett, Chafin, Lowry & Amos, Huntington, West Virginia, Counsel for Respondent Stephen Swain.
Lisa Warner Hunter, Esq., Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Charleston, West Virginia, Counsel for Respondent, Brayman Construction.
Chief Justice Ketchum :
The parties in this workers' compensation case debate a simple question: should the word “may” in a statute actually be construed to mean “shall?” We find that the general rule is that a statute that uses the word “may” is inherently permissive in nature and signifies that the Legislature meant to make the referenced act discretionary, rather than mandatory.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Respondent Stephen Swain worked out of a union hall for thirty-three years as a heavy-equipment operator employed by different construction companies. Mr. Swain testified that he was routinely exposed to unusual or excessively loud noise in the course of his employment, not only from the machines he operated but also from the other equipment being used around him.
Mr. Swain last worked, and was last exposed to the hazards of occupational noise, on March 21, 2013. Mr. Swain's employer on his date of last exposure is the petitioner in this appeal, Pioneer Pipe, Inc. Pioneer Pipe employed Mr. Swain for a total of forty hours.
On May 1, 2013, an otolaryngologist diagnosed Mr. Swain with bilateral sensorineural hearing loss directly attributable to industrial noise exposure in the course of and resulting from his employment. Mr. Swain thereafter filed claims for workers' compensation benefits for his occupational hearing loss.
An administrative law judge with the Workers' Compensation Office of Judges later identified Pioneer Pipe and two other employers as being potentially “chargeable” for Mr. Swain's claim.
Those other two employers are respondents Brayman Construction and J&J General Maintenance, Inc.
West Virginia's workers' compensation system has been administered by the Insurance Commissioner since 2006. West Virginia's workers' compensation statutes provide that when a claimant files a hearing loss claim, the “Insurance Commissioner may allocate to and divide any charges resulting from the claim among the employers with whom the claimant sustained exposure to hazardous noise for as much as sixty days during the three years immediately preceding the date of last exposure.” However, the Insurance Commissioner issued a policy statement saying that, because “claims allocation is a discretionary practice” and “does not exist in most other states,” the Insurance Commissioner “will no longer be allocating workers' compensation claims” to different employers in occupational hearing loss claims.
See W.Va. Code § 23–1–1(e) [2007].
W.Va. Code § 23–4–6b(g) [2009] (emphasis added).
The document, entitled “Notification for Claims Allocation,” is available on the Insurance Commissioner's website. http://www.wvinsurance.gov/Portals/0/pdf/wc/notices/claims–allocation–information.pdf (last visited September 15, 2016).
In an order dated November 6, 2014, an administrative law judge noted the Insurance Commissioner's discretionary policy not to allocate and divide any charges for hearing loss claims. Under this policy, “the chargeable employer will be the last employer with whom the claimant was exposed to hazardous noise in the course of and resulting from employment.” The administrative law judge found that Mr. Swain worked for Pioneer Pipe on March 21, 2013, his date of last exposure to the hazards of occupational noise; accordingly, Pioneer Pipe was ruled to be the sole chargeable employer responsible for paying Mr. Swain's hearing loss claim. Pioneer Pipe appealed the order, but the Workers' Compensation Board of Review affirmed it in an order dated April 3, 2015.
Pioneer Pipe now appeals the determination finding it to be the sole chargeable employer in this workers' compensation claim.
II.
STANDARD OF REVIEW
Pioneer Pipe asks this Court to interpret West Virginia's workers' compensation statutes, and to find that the interpretations of the statutes by the Insurance Commissioner, by the Office of Judges, and by the Board of Review are wrong. “Where the issue on an appeal is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.”
Conley v. Workers' Comp. Div ., 199 W.Va. 196, 199, 483 S.E.2d 542, 545 (1997) (citing Syllabus Point 1, Chrystal R.M. v. Charlie A.L ., 194 W.Va. 138, 459 S.E.2d 415 (1995) ). See also , Johnson v. W.Va. Office of Ins. Com'r , 226 W.Va. 650, 654, 704 S.E.2d 650, 654 (2010) (finding that in a review of a workers' compensation appeal under W.Va. Code § 23–5–15(c) [2005], “any legal conclusions made below must be reviewed by this Court de novo .”); Syllabus Point 1, Appalachian Power Co. v. State Tax Dep't of W.Va. , 195 W.Va. 573, 466 S.E.2d 424 (1995) (“Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review.”).
III.
ANALYSIS
Pioneer Pipe's argument focuses on W.Va. Code § 23–4–6b(g) [2009], which sets forth standards for awarding benefits in an occupational hearing loss claim. The statute also provides a means for apportioning and separating responsibility for paying a hearing loss claim. The statute provides, in pertinent part and with emphasis added:
The Insurance Commissioner may allocate to and divide any charges resulting from the claim among the employers with whom the claimant sustained exposure to hazardous noise for as much as sixty days during the period of three years immediately preceding the date of last exposure. The allocation is based upon the time of exposure with each employer. In determining the allocation, the Insurance Commissioner shall consider all the time of employment by each employer during which the claimant was exposed and not just the time within the three-year period under the same allocation as is applied in occupational pneumoconiosis cases.
As previously noted, the Insurance Commissioner has interpreted this statutory language as being discretionary, not mandatory. The Insurance Commissioner has, in light of this discretionary language, chosen not to allocate and divide charges for hearing loss claims. Rather, the Insurance Commissioner's policy is that the sole chargeable employer is the one that employed the claimant on his or her date of last exposure to hazardous noise.
Pioneer Pipe contends that the language of W.Va. Code § 23–4–6b(g) imposes a mandatory duty upon the Insurance Commissioner to allocate and divide the charges for a hearing loss claim, if the claimant was injured while in the employ of multiple employers. Furthermore, Pioneer Pipe interprets this statute to mean that, for an employer to be chargeable with a hearing loss claim, the claimant must have worked for the employer for at least sixty days in the three years preceding the date of last exposure. Because Mr. Swain only worked for Pioneer Pipe a total of forty hours in the days preceding March 21, 2013, Pioneer Pipe argues it cannot be charged with his hearing loss claim.
We reject Pioneer Pipe's argument. W.Va. Code § 23–4–6b(g) plainly says that the “Insurance Commissioner may allocate and divide any charges” for a hearing loss claim between employers. Under the statute, if the Insurance Commissioner chooses to separate and assign the charge for the claim to different employers, then the charge can be assigned only to a limited class of employers (those who exposed the claimant to hazardous noise for at least sixty days in the three years preceding the date of last exposure). However, the Insurance Commissioner has elected not to allocate charges for hearing loss claims. “An elementary principle of statutory construction is that the word ‘may’ is inherently permissive in nature and connotes discretion.” “The word ‘may’ generally should be read as conferring both permission and power[.]” The Legislature's choice of the word “may” usually “renders the referenced act discretionary, rather than mandatory, in nature.”
Gebr. Eickhoff Maschinenfabrik Und Eisengieberei mbH v. Starcher , 174 W.Va. 618, 626 n.12, 328 S.E.2d 492, 501 n.12 (1985) ; accord Rosen v. Rosen , 222 W.Va. 402, 409, 664 S.E.2d 743, 750 (2008) ; Daily Gazette Co. v. W.Va. Dev. Office , 206 W.Va. 51, 64–65, 521 S.E.2d 543, 556–57 (1999) ; State v. Hedrick , 204 W.Va. 547, 552, 514 S.E.2d 397, 402 (1999) ; Hodge v. Ginsberg , 172 W.Va. 17, 22, 303 S.E.2d 245, 250 (1983). See also U.S. v. Rodgers , 461 U.S. 677, 706, 103 S.Ct. 2132, 76 L.Ed.2d 236 (1983) (explaining that “[t]he word ‘may,’ when used in a statute, usually implies some degree of discretion”).
Weimer–Godwin v. Bd. of Educ. of Upshur Cty. , 179 W.Va. 423, 427, 369 S.E.2d 726, 730 (1988). See also , Manchin v. Browning , 170 W.Va. 779, 785, 296 S.E.2d 909, 915 (1982) (“Under settled rules of construction, the word ‘shall’ when used in constitutional provisions is ordinarily taken to have been used mandatorily, and the word ‘may’ generally should be read as conferring both permission and power.”).
In re Cesar L. , 221 W.Va. 249, 261, 654 S.E.2d 373, 385 (2007) ; accord Weimer v. Sanders , 232 W.Va. 367, 374, 752 S.E.2d 398, 405 (2013) ; Lawyer Disciplinary Bd. v. Smoot , 228 W.Va. 1, 11, 716 S.E.2d 491, 501 (2010).
In a policy statement interpreting W.Va. Code § 23–4–6b(g), the Insurance Commissioner determined that “claims allocation is a discretionary practice” and that while allocation of responsibility had happened in the past, no further allocation of claims would occur. The Insurance Commissioner stated that “the benefit of allocating claims would be outweighed by the problems which would be created by attempting to allocate claims in West Virginia's privatized workers' compensation [insurance] market.” The Insurance Commissioner's decision to no longer allocate claims “was further based on the fact that the practice of claims allocation does not exist in most other states, and therefore continuing claims allocation in West Virginia would be counter-productive to encouraging a competitive [workers's compensation insurance] market[.]” In other words, the Insurance Commissioner exercised his discretion not to allocate and divide charges for claims among employers with whom the claimant was exposed to hazardous noise for as much as sixty days during the three years prior to the date of last exposure.
In addition to hearing loss claims under W.Va. Code § 23–4–6b, the Insurance Commissioner's policy statement on allocation also applies to occupational pneumoconiosis claims and other occupational diseases.
The Insurance Commissioner's policy statement provides that allocation of claims would stop on January 1, 2006. From its inception in 1913 until 2006, West Virginia's workers' compensation program was a publicly-owned fund that “was created by the State legislature and [was] regulated exclusively by the State.” Verizon W.Va., Inc. v. W.Va. Bureau of Employ. Programs, Workers' Comp. Div. , 214 W.Va. 95, 135–36, 586 S.E.2d 170, 210–11 (2003). After that date, the system gradually shifted to a private-insurer-based system overseen by the Insurance Commissioner.
The respondents in this case point out that the Insurance Commissioner has adopted regulations establishing the minimum contents of a workers' compensation insurance policy. Under these regulations, each workers' compensation policy sold to a West Virginia employer must provide coverage for “any bodily injury with a date of injury within the policy period[.]” Importantly, the regulations require a policy have coverage “for any occupational disease”—such as noise-induced hearing loss—“with a date of last exposure within the policy period[.]”
See generally , 85 C.S.R. § 8.1 [2008], adopted pursuant to W.Va. Code § 23–2C–17(b) [2008] (the Insurance Commissioner “shall promulgate a rule which prescribes the requirements of a basic policy to be used by private carriers.”).
85 C.S.R. § 8.8.2. That regulation provides, in full:
Each West Virginia workers' compensation insurance policy shall provide coverage and benefit payments consistent with the provisions of chapter twenty-three of the West Virginia Code and the rules promulgated there under [sic] for any bodily injury with a date of injury within the policy period and for all benefits types thereafter awarded, including all dependent benefits and related death benefits provided for under chapter twenty-three of the West Virginia Code. Each workers' compensation policy shall also provide coverage for any occupational disease or occupational pneumoconiosis award with a date of last exposure within the policy period, including all dependent benefits and related death benefits provided for under chapter twenty-three of the West Virginia Code.
Id.
In the context of hearing loss claims, these insurance requirements reflect workers' compensation statutes which recognize that hearing loss may be caused “by either a single incident of trauma or by exposure to hazardous noise [.]” The Legislature has provided that jurisdiction for a hearing loss claim is based upon a single day: the claimant's date of last exposure to unusual or excessive workplace noise. W.Va. Code § 23–4–15(c) provides that where the claimant alleges occupational hearing loss caused by long-term noise exposure, the claimant is required to file a claim “within three years from and after the day on which the employee was last exposed to the particular occupational hazard involved” (or after discovering the hearing loss, whichever occurs last). “The ‘date of last exposure,’ ... is the date upon which the employee was last exposed to the hazards of the occupational disease which renders him/her eligible for the compensation award for which he/she has applied.”
W.Va. Code § 23–4–15(c) [2010] (emphasis added). See generally Holdren v. Workers' Comp. Com'r , 181 W.Va. 337, 382 S.E.2d 531 (1989).
Syllabus Point 10, State ex rel. ACF Indus., Inc. v. Vieweg , 204 W.Va. 525, 514 S.E.2d 176 (1999). “In a claim for noise-induced occupational hearing loss, a ‘hazard,’ as contemplated by the Workers' Compensation Act, exists in any work environment where unusual or excessive noise is shown to be present.” Syllabus, Hannah v. Workers' Comp. Com'r , 176 W.Va. 608, 346 S.E.2d 757 (1986).
Under the regulations establishing the minimum contents of a workers' compensation insurance policy, we discern that a workers' compensation insurance policy does not have to cover claims for an occupational disease with a date of last exposure outside of the policy period. The existence or non-existence of insurance coverage for a hearing loss claim is generally dependent upon one day: the date of last exposure.
Again, this is based upon our reading of 85 C.S.R. § 8.8.2. See supra ,. At oral argument, the parties agreed with this interpretation.
When a government agency issues an interpretation of a statute, it is “entitled to some deference by the court.” Such interpretations are “entitled on judicial review only to the weight that their inherent persuasiveness commands.” The rulings, interpretations and opinions of an agency
Appalachian Power Co. v. State Tax Dep't of W.Va , 195 W.Va. 573, 583, 466 S.E.2d 424, 434 (1995).
Id.
do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.
Id. quoting Gen. Elec. Co. v. Gilbert , 429 U.S. 125, 141–42, 97 S.Ct. 401, 411, 50 L.Ed.2d 343 (1976) (quoting Skidmore v. Swift & Co. , 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944) ).
Of course, any interpretation of a statute by an agency “must faithfully reflect the intention of the Legislature, as expressed in the controlling legislation.” “[A]n administrative agency may not issue a regulation which is inconsistent with, or which alters or limits its statutory authority.”
Syllabus Point 4, in part, Maikotter v. University of West Virginia Bd. of Trustees/West Virginia Univ. , 206 W.Va. 691, 527 S.E.2d 802 (1999).
Syllabus Point 3, in part, Rowe v. W.Va. Dept. of Corr. , 170 W.Va. 230, 292 S.E.2d 650 (1982).
We hold that as a general rule of statutory construction, the word “may” inherently connotes discretion and should be read as conferring both permission and power. The Legislature's use of the word “may” usually renders the referenced act discretionary, rather than mandatory, in nature. By using the term “may” in W.Va. Code § 23–4–6b(g), the Legislature clearly and unambiguously afforded the Insurance Commissioner discretion in deciding whether to allocate and divide charges for a hearing loss claim between various employers, or to charge only one employer. We also find that there is no limitation in the statute requiring sixty days of exposure to hazardous noise before the Insurance Commissioner may hold an employer solely responsible for a hearing loss claim. The controlling language employed by the Legislature is discretionary, not mandatory, and the Insurance Commissioner has exercised that discretion, made an informed judgment based upon a body of experience, and chosen not to allocate and divide charges for a claim. We see no conflict between the controlling statute and the Insurance Commissioner's actions.
One additional point must be noted, and that is Pioneer Pipe's justified assertion that this case reaches an unfair result. Mr. Swain worked for thirty-three years in noisy environments, but worked only four noisy days for Pioneer Pipe, and yet Pioneer Pipe's insurer will be charged for the entirety of Mr. Swain's hearing injury. Unfortunately, the regulations of the Insurance Commissioner and the statutes adopted by the Legislature impel this result. The executive and legislative branches have created a workers' compensation system that is easier to administer by the Insurance Commissioner, insurance companies and self-insured employers, yet can produce a capricious outcome.
Moreover, W.Va. Code § 23–4–6b(g) is a confusing, poorly-drafted anachronism, a vestigial flicker of the old workers' compensation system as it operated before it came under the administration of the Insurance Commissioner. This Court has repeatedly recognized that workers' compensation law is a “miasma” that “is a sui generis , jurisprudential hodge-podge that stands alone from all other areas of the law, causing decisions rendered in the workers' compensation realm to be almost wholly unusable in any other area of the law, and vice-versa.” That said, the wisdom, desirability or overall fairness of policy decisions and statutes made by the executive and legislative branches are outside the province of the judicial branch.
Wampler Foods, Inc. v. Workers' Comp. Div. , 216 W.Va. 129, 142, 602 S.E.2d 805, 818 (2004). See also Bounds v. State Workmen's Comp. Com'r , 153 W.Va. 670, 675, 172 S.E.2d 379, 382 (1970) (“It has been held repeatedly by this Court that the right to workmen's compensation benefits is based wholly on statutes, in no sense based on the common law; [and] that such statutes are sui generis and controlling[.]”).
Huffman v. Goals Coal Co. , 223 W.Va. 724, 728, 679 S.E.2d 323, 327 (2009).
This Court does not sit as a superlegislature, commissioned to pass upon the political, social, economic or scientific merits of statutes pertaining to proper subjects of legislation. It is the duty of the Legislature to consider facts, establish policy, and embody that policy in legislation. It is the duty of this Court to enforce legislation unless it runs afoul of the State or Federal Constitutions.
Syllabus Point 2, Id. , 223 W.Va. at 725, 679 S.E.2d at 324. See also Syllabus Point 11, Brooke B. v. Ray , 230 W.Va. 355, 738 S.E.2d 21 (2013) (“It is not for this Court arbitrarily to read into a statute that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted.”); accord State v. Louk , 237 W.Va. 200, 786 S.E.2d 219 (2016).
Whatever the merits of Pioneer Pipe's fairness complaints, those arguments must be addressed to the Insurance Commissioner and the Legislature.
IV.
CONCLUSION
The Workers Compensation Board of Review properly affirmed the decision of the Office of Judges, which correctly concluded that under W.Va. Code § 23–4–6b(g), Pioneer Pipe is the sole chargeable employer for Mr. Swain's hearing loss claim.
Affirmed.
JUSTICE DAVIS dissents and reserves the right to file a separate opinion.
JUSTICE WORKMAN concurs and reserves the right to file a separate opinion.
WORKMAN, Justice, concurring:
I reluctantly concur in the conclusion reached by the majority only because the statute as written, together with the Commissioner's blanket policy refusing to apportion employer responsibility, leaves no room to conclude otherwise. However, I would strongly encourage the Legislature and/or Insurance Commissioner to reexamine its handling of this issue to ameliorate the inequitable results created, as well-illustrated in the case at bar. As noted by the majority, the claimant worked mere hours for Pioneer Pipe, yet it is saddled with the entirety of the charges resulting from his occupational hearing loss. Mr. Swain worked for thirty-three years as a heavy equipment operator; as among the employer parties to this appeal, he worked a little over a year for Brayman Construction. Nevertheless, under the statute granting the Commissioner discretion as to whether or not to allocate charges, Brayman escapes responsibility for any portion of Mr. Swain's hearing loss, and Pioneer gets hit with the entire obligation. The unfairness of this result is apparent and plainly should evoke consideration by the Legislature and/or Insurance Commissioner as to the wisdom of the statute and/or the Commissioner's misuse of the discretion granted him under the statute.
Accordingly, I respectfully concur.
Davis, Justice, dissenting:
This was a very simple case in which the majority opinion has confused the law and facts, by injecting irrelevant issues to reach a result that denies the Petitioner (hereinafter referred to as “Pioneer Pipe”), and all other employers in future cases, fundamental due process. In this case, the majority has determined that the Insurance Commissioner can, without authorization , create and impose a policy that denied Pioneer Pipe its statutory due process right to challenge the decision to not apportion charges for the claimant's hearing loss claim among all of his former employers. For the reasons set out below, I dissent.
The Majority Opinion Violated Pioneer Pipe's Constitutional Right to Due Process
I will begin by making a few basic constitutional observations that the majority opinion has pretended do not exist. It has long been recognized that “a corporation is a ‘person’ within the meaning of the ... due process of law clause[.]” Grosjean v. Am. Press Co. , 297 U.S. 233, 244, 56 S.Ct. 444, 447, 80 L.Ed. 660 (1936). See Coleman & Williams, Ltd. v. Wisconsin Dep't of Workforce Dev. , 401 F.Supp.2d 938, 943 (E.D. Wis. 2005) (“With respect to the Due Process Clause, the Court has long considered the property interests of corporations to be entitled to constitutional protection.”); Trapper Brown Constr. Co., Inc. v. Electromech, Inc. , 358 F.Supp. 105, 106 (D.N.H. 1973) (“Plaintiff corporation may claim the protection of the Fourteenth Amendment[.]”). It has been noted that “[t]o prove both its substantive and procedural due process claims, [a corporation] must prove that it was deprived of a constitutionally protected property ... interest.” SDDS, Inc. v. State of S.D. , 843 F.Supp. 546, 553 (D.S.D. 1994), rev'd on other grounds , 47 F.3d 263 (8th Cir. 1995).
To establish a procedural due process claim, a corporation must establish three elements: (1) a constitutionally protected interest; (2) a deprivation of that interest within the meaning of the due process clause; and (3) the government did not afford it adequate procedural rights prior to depriving the corporation of its protected interest. See Med. Corp., Inc. v. City of Lima , 296 F.3d 404, 409 (6th Cir. 2002). Moreover, in order “[t]o prevail on a substantive due process claim, a plaintiff must demonstrate that an arbitrary and capricious act deprived them of a protected property interest.” County Concrete Corp. v. Town of Roxbury , 442 F.3d 159, 165 (3d Cir. 2006). The Supreme Court has made clear that property interests are not created by the constitution, itself, but rather by “existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Board of Regents v. Roth , 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).
In the instant proceeding, Pioneer Pipe was granted a statutory right that protected its property from being arbitrarily and capriciously taken by the Insurance Commissioner. Through the enactment of W. Va. Code § 23–4–6b(g) (2009) (Repl. Vol. 2010), the Legislature outlined the procedure by which multiple employers of an employee could be held liable under the workers' compensation statutes for the employee's hearing loss. The statutory provision states:
An application for benefits alleging a noise-induced hearing loss shall set forth the name of the employer or employers and the time worked for each. The Insurance Commissioner may allocate to and divide any charges resulting from the claim among the employers with whom the claimant sustained exposure to hazardous noise for as much as sixty days during the period of three years immediately preceding the date of last exposure. The allocation is based upon the time of exposure with each employer. In determining the allocation, the Insurance Commissioner shall consider all the time of employment by each employer during which the claimant was exposed and not just the time within the three-year period under the same allocation as is applied in occupational pneumoconiosis cases.
The above statute is not complicated. It is not ambiguous in its application to this case. The statute provides that an employee filing a claim for hearing loss must list the names of all employers for whom he or she has worked. The statute then grants the Insurance Commissioner the authority to apportion or allocate the liability for the hearing loss between the employers, or make a fact-specific determination that only one employer will be held liable. The statute also clearly shows that, for any employer to be charged for the hearing loss, it must be shown that the employer exposed the employee “to hazardous noise for as much as sixty days during the period of three years immediately preceding the date of last exposure.” W. Va. Code § 23–4–6b(g).
Despite the plain statutory language, the Insurance Commissioner arbitrarily adopted its own policy. The policy states that it will never “consider” allocation of charges among employers as is clearly required by the statute. Under the existing policy, the Insurance Commissioner arbitrarily picks an employer from among those listed by the employee and imposes all charges on that employer—regardless of the employee's length of exposure while working for that employer. As a result of this policy, no employer can challenge the basis for being singled out as the exclusive chargeable employer. The majority opinion has determined that since the statute grants the Insurance Commissioner the discretion to consider allocation on a case-by-case basis, the Insurance Commissioner had the authority to adopt a policy that would never consider allocation of charges in any multiple employer hearing loss claim. There is no rule of statutory construction which states that, when a statute grants a government agency discretion to act, the agency may unilaterally create a policy that provides that it will never exercise its statutory discretion. Such an unbridled rule of statutory construction would wreak havoc in all areas of the law where an agency is given discretion to act.
Had the Legislature envisioned such a rule of statutory construction, the Legislature simply could have drafted the statute to say that, even though multiple employers may be charged for a hearing loss claim, the Insurance Commissioner “shall” only hold one employer chargeable in all cases. That is not what the statute says. The Insurance Commissioner and the majority opinion have interpreted the statute in that manner, through a new rule of statutory construction that is dangerous and nonsensical.
A plain reading of the statute illustrates that the Insurance Commissioner must make an independent determination in each hearing loss claim as to whether to allocate charges among multiple employers. The reason for this case-by-case determination is that it protects the due process right of an employer to judicially challenge the decision not to allocate charges among multiple employers as well as the right to challenge the sixty-day exposure requirement. These statutory due process rights afford an employer the basis for challenging the charging decision, on the grounds of an abuse of discretion and as being arbitrary and capricious. The Insurance Commissioner's unauthorized policy has stripped Pioneer Pipe of this statutory right to challenge the decision of chargeability for the subject hearing loss claim.
Pioneer Pipe has sustained three injuries because of the unlawful policy imposed by the Insurance Commissioner. First, Pioneer Pipe has been denied its right to have the Insurance Commissioner make an individual determination of allocation on the merits, so that Pioneer Pipe could appeal the decision on the grounds of an abuse of discretion. Second, under the current policy, Pioneer Pipe has been wrongfully prohibited from having other employers share in the “costs” of a hearing loss claim. Third, under the policy, Pioneer Pipe has been prohibited from showing that it should not be a part of the case at all, because the claimant worked only forty hours for Pioneer Pipe, not sixty days as required by the statute.
In the final analysis, the Insurance Commissioner's policy of never allowing allocation should have been stricken as violating Pioneer Pipe's due process rights. This case should have then been reversed, and the matter sent back to the Commissioner to comply with W. Va. Code § 23–4–6b(g) to determine whether Pioneer Pipe is a chargeable employer and whether allocation should be allowed. If, on remand, the Insurance Commissioner found that Pioneer Pipe was a chargeable employer and that allocation of charges would not be permitted, the Insurance Commissioner should have entered an order setting forth the reasons for its determination. Pioneer Pipe then could have exercised its right to challenge the Insurance Commissioner's case specific findings.
Based upon the foregoing, I dissent.