IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2016 Term
_______________ FILED
No. 15-0397 September 19, 2016
released at 3:00 p.m.
_______________ RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
PIONEER PIPE, INC.,
Petitioner
v.
STEPHEN SWAIN,
BRAYMAN CONSTRUCTION, and
J & J GENERAL MAINTENANCE, INC.,
Respondents
____________________________________________________________
Appeal from the Workers’ Compensation Board of Review
Claim Nos. 2014002593 and 2014010112
Appeal No. 2049999
AFFIRMED
____________________________________________________________
Submitted: September 7, 2016
Filed: September 19, 2016
James W. Heslep, Esq Lawrence B. Lowry, Esq
Steptoe & Johnson PLLC Barrett, Chafin, Lowry & Amos
Bridgeport, West Virginia Huntington, West Virginia
Counsel for Petitioner Counsel for Respondent Stephen Swain
Pioneer Pipe
Lisa Warner Hunter, Esq.
Jeffrey B. Brannon, Esq. Pullin, Fowler, Flanagan,
Cipriani & Werner, P.C. Brown & Poe, PLLC
Charleston, West Virginia Charleston, West Virginia
Counsel for Respondent Counsel for Respondent
J & J General Maintenance Brayman Construction
CHIEF JUSTICE KETCHUM delivered the Opinion of the Court.
JUSTICE DAVIS dissents and reserves the right to file a separate opinion.
JUSTICE WORKMAN concurs and reserves the right to file a separate opinion.
SYLLABUS BY THE COURT
1. 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.
2. By using the term “may” in W.Va. Code § 23-4-6b(g) [2009], 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.
i
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.
1
An administrative law judge with the Workers’ Compensation Office of
Judges later identified Pioneer Pipe and two other employers1 as being potentially
“chargeable” for Mr. Swain’s claim.
West Virginia’s workers’ compensation system has been administered by the
Insurance Commissioner since 2006.2 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.”3 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.4
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
1
Those other two employers are respondents Brayman Construction and J&J
General Maintenance, Inc.
2
See W.Va. Code § 23-1-1(e) [2007].
3
W.Va. Code § 23-4-6b(g) [2009] (emphasis added).
4
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).
2
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.”5
5
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.”).
3
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.6
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
6
W.Va. Code § 23-4-6b(g).
4
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.”7 “The word ‘may’ generally
7
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”).
5
should be read as conferring both permission and power[.]”8 The Legislature’s choice of
the word “may” usually “renders the referenced act discretionary, rather than mandatory,
in nature.”9
In a policy statement interpreting W.Va. Code § 23-4-6b(g),10 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.”11 The Insurance
8
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.”).
9
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).
10
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.
11
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.
6
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.
The respondents in this case point out that the Insurance Commissioner has
adopted regulations establishing the minimum contents of a workers’ compensation
insurance policy.12 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[.]”13 Importantly, the regulations require a policy have coverage
12
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.”).
13
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,
7
“for any occupational disease” – such as noise-induced hearing loss – “with a date of last
exposure within the policy period[.]”14
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[.]”15 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).16 “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.”17
including all dependent benefits and related death benefits
provided for under chapter twenty-three of the West Virginia
Code.
14
Id.
15
W.Va. Code § 23-4-6b(a).
16
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).
17
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,’
8
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.18 The existence or non-existence of insurance coverage for a
hearing loss claim is generally dependent upon one day: the date of last exposure.
When a government agency issues an interpretation of a statute, it is “entitled
to some deference by the court.”19 Such interpretations are “entitled on judicial review
only to the weight that their inherent persuasiveness commands.”20 The rulings,
interpretations and opinions of an agency
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.21
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).
18
Again, this is based upon our reading of 85 C.S.R. § 8.8.2. See supra, note
13. At oral argument, the parties agreed with this interpretation.
19
Appalachian Power Co. v. State Tax Dep’t of W.Va, 195 W.Va. 573, 583,
466 S.E.2d 424, 434 (1995).
20
Id.
21
Id., quoting Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 141-42, 97 S.Ct. 401,
411 (1976) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164 (1944)).
9
Of course, any interpretation of a statute by an agency “must faithfully reflect the intention
of the Legislature, as expressed in the controlling legislation.”22 “[A]n administrative
agency may not issue a regulation which is inconsistent with, or which alters or limits its
statutory authority.”23
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.
22
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).
23
Syllabus Point 3, in part, Rowe v. W.Va. Dept. of Corr., 170 W.Va. 230,
292 S.E.2d 650 (1982).
10
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.”24 That said, the wisdom, desirability or overall
24
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[.]”).
11
fairness of policy decisions and statutes made by the executive and legislative branches are
outside the province of the judicial branch.25
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.26
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.
25
Huffman v. Goals Coal Co., 223 W.Va. 724, 728, 679 S.E.2d 323, 327
(2009).
26
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).
12