Supreme Court Approves Vacating Prior PTD Award

by Spilman Thomas & Battle, PLLC

[authors: H. Dill Battle III and Lindsay Griffin Smith]


In Roy Justice v. West Virginia Office Insurance Commission and Lowe’s Home Centers, Inc., No. 11-0113 (W.Va. Nov. 14, 2012), the West Virginia Supreme Court of Appeals issued a significant decision impacting reopening and reevaluation of permanent total disability awards under the continuing authority over PTD awards established by West Virginia Code § 23-4-16. Under the language of West Virginia Code § 23-4-16(d)(2), which permits a self-insured employer to reopen a permanent total disability claim for the purpose of reevaluating the continuing nature of the disability, the inclusion of language directing that a claimant’s former employer “shall not be a party to the reevaluation” appears to be the result of legislative oversight according to the Court. Consequently, the Court held that notwithstanding statutory language that suggests otherwise, an order issued by the West Virginia Workers’ Compensation Board of Review which modifies or vacates a previous award of permanent total disability is not subject to challenge based on the involvement of a self-insured former employer in the reevaluation process given that the participation of the self-insured former employer is clearly anticipated and authorized by the provisions of West Virginia Code § 23-4-16(d).

The Justice decision applies to PTD claims granted on or after April 8, 1993, the effective date of the 1993 amendments to W.Va. Code 23-4-16(d), and allows such claims to be reopened and reevaluated under the authority and timetable set forth in the statute. The Justice decision should settle any reluctance to continuously monitor PTD claims and to reopen those awards after due notice to the claimant for reevaluation of the continuing nature of the disability and possible modification of the award. See West Virginia Code § 23-4-16(d)(1).

Facts and Procedural History

The claimant Roy Justice (“claimant”), suffered an injury while employed by Lowe’s Home Centers, Inc. (“Lowe’s”). During the process of loading a riding lawnmower with assistance from co-workers, claimant was injured on February 22, 1990. He was initially diagnosed with lumbar sprain but an MRI revealed herniated discs associated with degenerative changes. Claimant was initially granted a 5% permanent partial disability (“PPD”) award. Maintaining that he was unable to return to work, claimant filed a claim seeking a permanent total disability award. On December 7, 1994, claimant was granted a PTD award with an onset date of February 22, 1990. The issue of claimant’s entitlement to PTD was litigated and the award was upheld under the now discarded liberality rule.

In February 2006, Lowe’s reopened the PTD claim to evaluate whether claimant continued to be eligible for PTD benefits. See W. Va. Code § 23-4-16(d); 85 W. Va. C.S.R. § 5-5. Lowe’s, through its claims administrator, referred claimant to various examiners who reached a conclusion that claimant could perform a sedentary level of work. The claims administrator advised claimant that he had 120 days in which to submit evidence to support the continuation of his PTD benefits. After reviewing evidence submitted by the parties, the claim administrator vacated the PTD award and the benefits were immediately suspended. The claim administrator determined that the evidence demonstrated an ability to perform sedentary work level.

The Office of Judges upheld the ruling of the claim administrator, despite Lowe’s reopening the PTD claim for reevaluation — and seemingly being a party to that reevaluation — by finding that Lowe’s complied with the “letter and spirit” of West Virginia Code § 23-4-16(d). The Workers’ Compensation Board of Review affirmed the Office of Judges’ decision and claimant appealed to the West Virginia Supreme Court of Appeals.


West Virginia Code § 23-4-16 establishes continuing authority over PTD awards. The Court acknowledged that, as the Legislature made clear, “whether it is the Commission, the successor to the Commission, a private carrier, or a self-insured employer – the applicable entity ‘has continuing power and jurisdiction over claims in which permanent total disability awards have been made after [April 8, 1993].’” Justice, at p. 6 (quoting W. Va. Code § 23-4-16(d)).

The Court noted that West Virginia Code § 23-4-16(d)(1) compels any of the four statutorily-identified entities, including the self-insured employer, to monitor PTD awards and“reopen a claim for reevaluation of the continuing nature of the disability and possible modification of the award.” The claimant sought to set aside a decision by the self-insured employer which vacated his PTD award, and argued that the language in West Virginia Code § 23-4-16(d)(2) barred the claimant’s former employer from being “a party to the reevaluation . . . .” The claimant argued that Lowe’s involvement in the reopening and reevaluation process constituted a violation of the statute.

The Court found that reading the statute to disallow a self-insured employer from entitlement to invoke the provisions of West Virginia Code § 23-4-16(d) would be illogical and would nullify significant portions of the statute and create an absurd result. The Court noted that the proscription of former employers from being a party to the reevaluation process made arguable sense when the Commission was the entity who both assessed the requests to reopen PTD claims and then had responsibility for issuing rulings in conjunction with the reevaluation. To initially authorize the self-insured employer to reopen a PTD claim in one subsection of the statute but to disallow participation in the next subsection was paradoxical, in the Court’s words. In a footnote the Court noted that it was forced to interpret the “inherent inconsistency” in the statute’s language “in a manner that both makes sense and also prevents the remaining provisions of the statute from being rendered meaningless. If the Legislature disagrees with the interpretation, it can amend the statutory language that we were required to interpret through this opinion.”

The Court decided that to allow self-insured employers to initiate and be involved in the reevaluation process of PTD claims effectuates the purpose of the statute. The self-insured former employer’s involvement in the evaluation cannot be cited as a cause for challenge to an order issued by the West Virginia Worker’s Compensation Board of Review which modifies or vacates a previous award of PTD.


The West Virginia Supreme Court of Appeals held that the involvement of a self-insured employer in the reopening and reevaluation of a former employee’s PTD award is not a cause for challenge to an order that modifies or vacates a previous PTD award.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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