IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2018 Term 

FILED 

June 4, 2018 No. 17-0993 released at 3:00 p.m. 

EDYTHE NASH GAISER, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

LOUISE MORAN,
 

DEPENDENT OF WILLIAM MORAN (DECEASED),
 

Claimant Below, Petitioner
 

V. 

ROSCITI CONSTRUCTION CO., LLC,
 

Respondent Below, Respondent
 

Appeal from the Workers’ Compensation Board of Review
 

Claim No. 2012038847
 

Appeal No. 2051864
 

REVERSED AND REMANDED
 

Submitted: May 9, 2018 

Filed: June 4, 2018 

Kelly Elswick-Hall Jeffrey B. Brannon 

The Masters Law Firm lc Cipriani & Werner, P.C. 

Charleston, West Virginia Charleston, West Virginia 

Attorney for the Petitioner Attorney for the Respondent 

JUSTICE DAVIS delivered the Opinion of the Court. 
 

SYLLABUS BY THE COURT
 

1. When reviewing a decision of the West Virginia Workers’ 

Compensation Board of Review (“the Board”), this Court will give deference to the Board’s 

findings of fact and will review de novo its legal conclusions. The decision of the Board may 

be reversed or modified only if it (1) is in clear violation of a constitutional or statutory 

provision; (2) is clearly the result of erroneous conclusions of law; or (3) is based upon 

material findings of fact that are clearly wrong. 

2. An award of dependents’ death benefits under the workers’ 

compensation laws of West Virginia is payable, notwithstanding W. Va. Code § 23-2-1c(d) 

(2003) (Repl. Vol. 2017), while benefits awarded under the workers’ compensation laws of 

another state for the same injury are suspended due to a third-party settlement. 

i 
 

 

 

 

 

 

Davis, Justice: 

This appeal raises the issue of whether W. Va. Code § 23-2-1c(d) (2003) (Repl. 

Vol. 2017) applies when awards for workers’ compensation dependents’ death benefits 

(“dependents’ benefits”) have been properly granted under the laws of West Virginia and 

another state for the same injury, but the benefits awarded under the laws of the other state 

have been suspended due to a related third-party settlement. After considering the parties’ 

briefs, the relevant law, and oral arguments, we find that W. Va. Code § 23-2-1c(d) does not 

apply and, therefore, dependents’ benefits awarded under West Virginia law are payable as 

long as the benefits awarded under the laws of the other state remain suspended. 

Accordingly, we reverse the West Virginia Workers’ Compensation Board of Review. 

I.
 

FACTUAL AND PROCEDURAL HISTORY
 

Mr. William Moran (“Mr. Moran”) was an employee of the respondent, Rosciti 

Construction Company, LLC (hereinafter “Rosciti”), when he succumbed to carbon 

monoxide intoxication and passed away on January 31, 2012, in West Virginia. Rosciti is 

based in Rhode Island, where Mr. Moran lived. Mr. Moran was part of a Rosciti crew that 

had been sent to West Virginia to lay fiber optic lines at Yeager Airport in Charleston for the 

West Virginia National Guard. The Rosciti crew, including Mr. Moran, arrived in South 

Charleston, West Virginia, on the evening of January 30, 2012, and checked into a local hotel 

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that apparently had been selected by Rosciti. The following morning, Mr. Moran was found 

deceased in his hotel room; another crew member who was staying in the same room was 

unresponsive.1 The room was found to contain high levels of carbon monoxide, which had 

caused Mr. Moran’s death.2 

Thereafter, the petitioner, Mr. Moran’s wife, Louise Moran (“Mrs. Moran”), 

filed workers’ compensation claims for dependents’ benefits in both Rhode Island and West 

Virginia on behalf of herself, her twelve-year-old daughter, and her father-in-law, as 

dependents of the decedent, Mr. Moran. 3 The Rhode Island claim resulted in an award of 

weekly dependents’ benefits in the amount of $765.15. The West Virginia claim originally 

was denied by the claims administrator. On appeal, the decision was reversed by the West 

Virginia Workers’ Compensation Office of Judges (“OOJ”). In granting dependents benefits, 

the OOJ noted that the award was subject to W. Va. Code § 23-2-1c(d) (2003), which 

provides for a credit of workers’ compensation benefits “awarded or recovered” under laws 

of another state. The West Virginia Workers’ Compensation Board of Review (“BOR”) 

1

Both men were transported to CAMC General Hospital. 

2

An investigation report bythe South Charleston Fire Department indicated that 

the cause of the carbon monoxide in the room was a separated flue exhaust pipe. 

3

Mrs. Moran identified her father-in-law as disabled and dependent upon Mr. 

Moran at the time of his death. 

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affirmed as modified the decision of the OOJ. 4 This Court affirmed the BOR decision in a 

prior appeal of this matter. See Rosciti Constr. Co., LLC v. Moran, No. 14-0398, 2015 WL 

6839865 (W. Va. Nov. 4, 2015) (memorandum decision). Nevertheless, no dependents’ 

benefits were actually paid out in connection with Mrs. Moran’s West Virginia award 

because the $765.15 in weekly benefits paid in relation to the Rhode Island claim were 

greater than, and credited against, the West Virginia benefits awarded, which were 

determined to be $711.30. See W. Va. Code § 23-2-1c(d). 

Meanwhile, Mrs. Moran reached a confidential settlement with several 

defendants in a civil action she filed in relation to Mr. Moran’s death. As a result of this 

third-party settlement, and pursuant to Rhode Island law, her Rhode Island dependents’ 

benefits were suspended on December 11, 2014. See R.I. Gen. Laws § 28-35-58(a) (2002).5 

4

The OOJ had found that Mr. Moran’s father was wholly dependent upon Mr. 

Moran. The BOR disagreed and found that Mr. Moran’s father was only partially dependent. 

This Court affirmed the BOR. See Rosciti Constr. Co., LLC v. Moran, No. 14-0398, 2015 

WL 6839865 (W. Va. Nov. 4, 2015) (memorandum decision). 

5

Pursuant to the relevant Rhode Island statute: 

Where the injury for which compensation is payable 

under chapters 29–38 of this title was caused under 

circumstances creating a legal liabilityin some person other than 

the employer to pay damages in respect of the injury, the 

employee may take proceedings, both against that person to 

recover damages and against any person liable to pay 

compensation under those chapters for that compensation, and 

the employee shall be entitled to receive both damages and 

(continued...) 

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The parties have stipulated that the third-party settlement was in excess of the amount 

required to meet the weekly Rhode Island benefits for the remainder of Mrs. Moran’s life 

5

(...continued) 

compensation. The employee, in recovering damages either by 

judgment or settlement from the person so liable to pay 

damages, shall reimburse the person by whom the compensation 

was paid to the extent of the compensation paid as of the date of 

the judgment or settlement and the receipt of those damages by 

the employee shall not bar future compensation. An insurer 

shall be entitled to suspend the payment of compensation 

benefits payable to the employee when the damages recovered 

by judgment or settlement from the person so liable to pay 

damages exceeds the compensation paid as of the date of the 

judgment or settlement. The suspension paid shall be that 

number of weeks which are equal to the excess damages paid 

divided by the employee’s weekly compensation rate; however, 

during the period of suspension the employee shall be entitled 

to receive the benefit of all medical and hospital payments on 

his or her behalf. If the employee has been paid compensation 

under those chapters, the person bywhom the compensation was 

paid shall be entitled to indemnity from the person liable to pay 

damages, and to the extent of that indemnity shall be subrogated 

to the rights of the employee to recover those damages. When 

money has been recovered either by judgment or by settlement 

by an employee from the person liable to pay damages, by suit 

or settlement, and the employee is required to reimburse the 

person by whom the compensation was paid, the employee or 

his or her attorney shall be entitled to withhold from the amount 

to be reimbursed that proportion of the costs, witness expenses, 

and other out-of-pocket expenses and attorney fees which the 

amount which the employee is required to reimburse the person 

by whom compensation was paid bears to the amount recovered 

from the third party. 

R.I. Gen. Laws § 28-35-58(a) (2002) (emphasis added). 

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expectancy. As a result, Mrs. Moran’s Rhode Island dependents’ benefits are expected to 

remain suspended. 

Due to the suspension of her Rhode Island benefits, Mrs. Moran requested 

payment of West Virginia dependents’ benefits. She reasoned that, since her Rhode Island 

benefits had been suspended, there were no Rhode Island payments to be credited against her 

West Virginia benefits. The claims administrator denied Mrs. Moran’s request by order 

entered December 2, 2015, finding that “Rhode Island benefits are still being paid but have 

been suspended and/or are being offset pending exhaustion of the excess damages paid by 

the Third-Party’s [sic] pursuant to the settlement.” Mrs. Moran protested the order. The 

OOJ affirmed the claims administrator and explained that 

[i]t is clear that the claimant was not entitled to any 

dependents [sic] benefits from the state of West Virginia as long 

as she was being paid and received an amount in excess of the 

workers’ compensation benefits by the state of Rhode Island in 

the form of workers’ compensation benefits. A more complex 

issue is how does the third-party settlement affect the obligation 

of West Virginia to pay dependents [sic] benefits. The amount 

of Rhode Island’s workers’ compensation benefits [that] the 

claimant would receive if there was no third-party settlement is 

being deducted from the third-party settlement. The Office of 

Judges cannot base this Decision on how the state of Rhode 

Island applies their subrogation law. It is found that the 

reduction of the third-party settlement by the weekly rate of 

Rhode Island workers’ compensation benefits represents a 

recovery of damages to the claimant from the state of Rhode 

Island, and therefore, the Order of December 2, 2015, is found 

to be proper and in accordance with the intent of the above cited 

statutes. 

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The BOR affirmed the OOJ’s order, but did not adopt the above quoted discussion. Instead, 

the BOR reasoned that 

[i]n the West Virginia claim, dependent’s [sic] benefits 

were granted subject to West Virginia Code § 23-2-1c(d), which 

provides as follows: “If any employee or his or her dependents 

are awarded workers’ compensation benefits or recover damages 

from the employer under the laws of another state for an injury 

received in the course of and resulting from the employment, the 

amount awarded or recovered, whether paid or to be paid in 

future installments, shall be credited against the amount of any 

benefits payable under this chapter for the same injury.” 

[Emphasis added.] Dependent’s [sic] benefits in the amount of 

$129,984.61 were paid under the Rhode Island workers’ 

compensation claim. Then the benefits were suspended 

pursuant to the dependent’s decision to enter into a settlement 

agreement in a third-party civil action. The dependent knew or 

should have known that the laws of Rhode Island allowed for 

suspension of workers’ compensation dependents [sic] benefits. 

The Rhode Island claim remains an active claim and additional 

benefits may be payable under that claim. After considering all 

the factors, the Board concludes that the claims administrator’s 

order dated December 2, 2015, is proper and in accordance with 

the statutes. 

This appeal followed. 

II. 

STANDARD OF REVIEW 

The standards for this Court’s review of decisions rendered by the BOR are set 

out in W. Va. Code § 23-5-15 (2005) (Repl. Vol. 2017) as follows: 

(b) In reviewing a decision of the board of review, the 

Supreme Court of Appeals shall consider the record provided by 

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the board and give deference to the board’s findings, reasoning 

and conclusions, in accordance with subsections (c) and (d) of 

this section. 

(c) If the decision of the board represents an affirmation 

of a prior ruling by both the commission and 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 provision, is clearly the 

result of erroneous conclusions of law, or is based upon the 

board’s material misstatement or mischaracterization of 

particular components of the evidentiary record. 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 

based upon the board’s material misstatement or 

mischaracterization of particular components of the evidentiary 

record. 

(d) 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 

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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. 

We also have previously recognized that, “‘[w]hen it appears from the proof 

upon which the [Workers’ Compensation Board of Review] acted that its finding was plainly 

wrong[,] an order reflecting that finding will be reversed and set aside by this Court.’” Syl. 

pt. 1, Bowers v. West Virginia Office of the Ins. Comm’r, 224 W. Va. 398, 686 S.E.2d 49 

(2009) (quoting Syl. pt. 5, Bragg v. State Workmen’s Comp. Comm’r, 152 W. Va. 706, 166 

S.E.2d 162 (1969)). With respect to the legal conclusions of the Board of Review, we have 

established that a de novo review applies. See Crawford v. West Virginia Dep’t of 

Corr.-Work Release, 239 W. Va. 374, 377, 801 S.E.2d 252, 255 (2017) (“We have previously 

recognized . . . that this Court ‘review[s] de novo legal conclusions of the Workers’ 

Compensation Board of Review.’” (quoting Johnson v. West Virginia Office of Ins. Comm’r, 

226 W. Va. 650, 654, 704 S.E.2d 650, 654 (2010))); Sheena H. ex rel. Russell H. ex rel. L.H. 

v. Amfire, LLC, 235 W. Va. 132, 135, 772 S.E.2d 317, 320 (2015) (same). 

In accordance with the foregoing statutory directives and case law, and in 

recognition of the fact that it is now claims administrators, and not the Workers’ 

Compensation Commission, who make initial rulings with respect to workers’ compensation 

claims, this Court now expressly holds that, when reviewing a decision of the West Virginia 

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Workers’ Compensation Board of Review (“the Board”), this Court will give deference to 

the Board’s findings of fact and will review de novo its legal conclusions. The decision of 

the Board may be reversed or modified only if it (1) is in clear violation of a constitutional 

or statutory provision; (2) is clearly the result of erroneous conclusions of law; or (3) is based 

upon material findings of fact that are clearly wrong. 

To the extent that this case also requires examination of relevant statutory 

provisions, we finally note that, “[w]here the issue on an appeal from the circuit court is 

clearly a question of law or involving an interpretation of a statute, we apply a de novo 

standard of review.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 

415 (1995). We will apply these standards to our consideration of the instant appeal. 

III.
 

DISCUSSION
 

The issue raised in this appeal addresses whether W. Va. Code § 23-2-1c(d) 

requires the actual payment of a workers’ compensation award for dependents’ benefits when 

there has been a workers’ compensation award in another state for the same injury, but 

payment of the other state’s award has been suspended due to a settlement obtained from a 

third-party claim for the same injury. 

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Mrs. Moran asserts that, because her Rhode Island benefits are suspended, 

there is nothing to be credited against her West Virginia benefits under W. Va. Code § 23-2­

1c(d). She asserts that no West Virginia statute allows for an offset for payment of future 

workers’ compensation benefits because of a third-party personal injury settlement. 6 She 

reasons that the absence of a clear legislative offset of third-party settlement funds, when 

compared with the existence of a legislatively provided offset in other circumstances, such 

as when an employer has a fully funded private disability policy, see W. Va. Code § 23-4­

1c(j) (2009) (Repl. Vol. 2017), should be interpreted as meaning that the Legislature did not 

intend for there to be an offset of third-party settlements. She contends that workers’ 

compensation is a creature of statute and this Court cannot create an offset where none exists. 

Citing Bush v. Richardson, 199 W. Va. 374, 376, 484 S.E.2d 490, 492 (1997) (noting that 

“workers’ compensation is entirely a statutory creature. . . . Thus, whether the Commissioner 

is accorded the right to subrogation, and if so, what form it will take[,] are matters properly 

left for the legislature to determine.” (internal quotations and citations omitted)). 

She next contends that she is entitled to her West Virginia dependents’ benefits 

notwithstanding her settlement because W. Va. Code § 23-2A-1(b)(1), which pertains to 

6

Pursuant to W. Va. Code § 23-2A-1(b)(1) (2009) (Repl. Vol. 2017), “[w]ith 

respect to any claim arising from a right of action that arose or accrued, in whole or in part, 

on or after January 1, 2006, the private carrier or self-insured employer, whichever is 

applicable, shall be allowed statutory subrogation with regard to indemnity and medical 

benefits paid as of the date of the recovery.” (Emphasis added). Thus subrogation covers 

only those benefits paid out as of the date of the recovery of a settlement, not future benefits. 

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subrogation, does not provide for a suspension of the payment of future benefits because of 

third-party personal injury settlements. Mrs. Moran claims that this statute is clear that the 

insurance company can recover only what was paid up to the date of settlement. 

Rosciti responds that the BOR’s decision is clearly correct and consistent with 

the law applicable to this claim. Rosciti points out that the Rhode Island benefits awarded 

to Mrs. Moran are greater than her West Virginia award. The payments of the Rhode Island 

award are simply suspended pending the exhaustion of the third-party settlement (which the 

parties have stipulated will not be exhausted in this case because the settlement exceeded the 

amount of Rhode Island benefits Mrs. Moran would be entitled to receive during her life 

expectancy). Thus, the Rhode Island award is offset by the settlement proceeds. According 

to Rosciti, the fact that the Rhode Island award is offset by the settlement does not change 

the fact that the West Virginia benefits are offset by the Rhode Island benefits pursuant to 

W. Va. Code § 23-2-1c(d). 

Because our resolution of this appeal requires scrutiny of the relevant statutes, 

we begin by recognizing that “[t]he primary object in construing a statute is to ascertain and 

give effect to the intent of the Legislature.” Syl. pt. 1, Smith v. State Workmen’s Comp. 

Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975). In ascertaining the intent of the 

Legislature, we are constrained to “look first to the statute’s language. If the text, given its 

11
 
 

 

 

 

plain meaning, answers the interpretive question, the language must prevail and further 

inquiry is foreclosed.” Appalachian Power Co. v. State Tax Dep’t, 195 W. Va. 573, 587, 466 

S.E.2d 424, 438 (1995). Conversely, “[a] statute that is ambiguous must be construed before 

it can be applied.” Syl. pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992). 

The extent to which a workers’ compensation award must be paid under West 

Virginia law when there also is an award under the laws of another state is governed by 

W. Va. Code § 23-2-1c(d). 	 Pursuant to W. Va. Code § 23-2-1c(d), 

[i]f any employee or his or her dependents are awarded 

workers’ compensation benefits or recover damages from the 

employer under the laws of another state for an injury received 

in the course of and resulting from the employment, the amount 

awarded or recovered, whether paid or to be paid in future 

installments, shall be credited against the amount of any 

benefits payable under this chapter for the same injury. 

(Emphasis added). The language of the foregoing provision is ambiguous with regard to the 

instant matter insofar as it does not provide explicit guidance on the effect of a suspension 

of the benefits awarded under the laws of another state, due to a third-party settlement, on 

benefits payable under West Virginia workers’ compensation law. However, reading the 

foregoing statute in the context of these circumstances leads to the conclusion that the 

Legislature’s intent is to pay benefits awarded under West Virginia law where the other 

state’s benefits have been suspended due to a third-party settlement. In reaching this 

conclusion, we first note that W. Va. Code § 23-2-1c(d) applies a credit for only an award 

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of workers’ compensation benefits or a recovery of damages “from the employer under the 

laws of another state.” (Emphasis added). There is no mention of a credit being applied in 

relation to a third-party recovery. The absence of any mention of a recovery from a third 

party indicates an intention on the part of the Legislature that the provision is not meant to 

apply to such recoveries. 

Moreover, pursuant to W. Va. Code § 23-2-1c(d), the amount to be credited 

against any benefits payable under West Virginia workers’ compensation law is “the amount 

awarded or recovered, whether paid or to be paid in future installments.” Thus, the language 

contemplates crediting only an actual payment of workers’ compensation benefits or a 

recovery from an employer that already has occurred or is to be made in the future. Where 

another state’s workers’ compensation benefits have been suspended due to a third-party 

settlement, no payments are being made. Likewise, under the particular circumstances of this 

case, no payments are “to be paid in future installments.”7 

We are mindful that “the statutorynature of our workers’ compensation system 

requires both deference and judicial restraint.” Old Republic Ins. Co. v. O’Neal, 237 W. Va. 

512, 529, 788 S.E.2d 40, 57 (2016). Thus, “it is not the proper function of the judicial branch 

7

We recognize that circumstances may exist in another case where payments 

are to be made “in future installments.” W. Va. Code § 23-2-1c(d). However, such is not 

the case here. 

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to supply legislative omissions from a statute in an attempt to make it conform to some 

presumed intention of the Legislature not expressed in statutory language.” Cart v. General 

Elec. Co., 203 W. Va. 59, 63 n.8, 506 S.E.2d 96, 100 n.8 (1998) (per curiam). Because 

W. Va. Code § 23-2-1c(d) does not provide that suspended benefits awarded under the laws 

of another state be credited against workers’ compensation benefits awarded pursuant to 

West Virginia law, it is not the proper role of this Court to create such a credit. See Syl. pt. 

2, Huffman v. Goals Coal Co., 223 W. Va. 724, 679 S.E.2d 323 (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.”). 

We find further support for our interpretation of this statute in our laws 

pertaining to subrogation. We agree with Mrs. Moran that the Legislature has demonstrated 

no intent to offset the future payment of West Virginia dependents’ benefits by an amount 

received in a third-party award. According to W. Va. Code § 23-2A-1, 

(a) [w]here a compensable injury or death is caused, in 

whole or in part, by the act or omission of a third party, the 

injured worker or, if he or she is deceased or physically or 

mentally incompetent, his or her dependents or personal 

representative are entitled to compensation under the provisions 

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of this chapter, and shall not by having received compensation 

be precluded from making claim against the third party. 

(b) Notwithstanding the provisions of subsection (a) of 

this section, if an injured worker, his or her dependents or his or 

her personal representative makes a claim against the third party 

and recovers any sum for the claim: 

(1) With respect to any claim arising from a right of 

action that arose or accrued, in whole or in part, on or after 

January 1, 2006, the private carrier or self-insured employer, 

whichever is applicable, shall be allowed statutory subrogation 

with regard to indemnity and medical benefits paid as of the 

date of the recovery. 

(Emphasis added). Under the foregoing provision, subrogation from a third-party settlement 

is allowed with regard to “indemnity and medical benefits paid as of the date of the 

recovery.” W. Va. Code § 23-2A-1(b)(1) (emphasis added). Although the instant matter 

does not involve subrogation in the strict sense, this code provision provides evidence of a 

legislative intent to offset workers’ compensation benefits by third-party settlements only to 

the extent of the amounts paid “as of the date of recovery.” W. Va. Code § 23-2A-1(b)(1). 

Finally, we find that the West Virginia workers’ compensation statute 

pertaining to dependents’ benefits also is relevant to ascertaining legislative intent insofar 

as it defines when such benefits shall terminate. In this regard, W. Va. Code § 23-4-10 

(2010) (Repl. Vol. 2017) provides, in relevant part, that 

[i]n case a personal injury, other than occupational 

pneumoconiosis or other occupational disease, suffered by an 

employee in the course of and resulting from his or her 

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employment, causes death, and disability is continuous from the 

date of the injury until the date of death, or if death results from 

occupational pneumoconiosis or from any other occupational 

disease, the benefits shall be in the amounts and to the persons 

as follows: 

. . . . 

(b) If there are dependents as defined in subdivision (d) 

of this section, the dependents shall be paid for as long as their 

dependency continues in the same amount that was paid or 

would have been paid the deceased employee for total disability 

had he or she lived. The order of preference of payment and 

length of dependence shall be as follows: 

(1) A dependent widow or widower until death or 

remarriage of the widow or widower, and any child or children 

dependent upon the decedent until each child reaches eighteen 

years of age or where the child after reaching eighteen years of 

age continues as a full-time student in an accredited high school, 

college, university, business or trade school, until the child 

reaches the age of twenty-five years, or if an invalid child, to 

continue as long as the child remains an invalid. All persons 

are jointly entitled to the amount of benefits payable as a result 

of [the] employee’s death; 

(2) A wholly dependent father or mother until death; and 

(3) Any other wholly dependent person for a period of six 

years after the death of the deceased employee; 

(c) If the deceased employee leaves no wholly dependent 

person, but there are partially dependent persons at the time of 

death, the payment shall be fifty dollars a month to continue for 

the portion of the period of six years after the death, determined 

by the commission, successor to the commission, other private 

carrier or self-insured employer, whichever is applicable, but no 

partiallydependent person shall receive compensation payments 

as a result of the death of more than one employee. 

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Compensation under this subdivision and subdivision (b) 

of this section shall, except as may be specifically provided to 

the contrary in those subdivisions, cease upon the death of the 

dependent, and the right to the compensation shall not vest in his 

or her estate. 

(Emphasis added). The foregoing provision establishes that dependents’ benefits are to be 

paid to dependents “for as long as their dependency continues” W. Va. Code § 23-4-10(b). 

This code section goes on to describe when dependency ends for various classifications of 

dependents. Nowhere does this section of the code terminate dependency upon the recovery 

of a third-party settlement. Because the Legislature has identified the means by which 

dependency terminates and did not include third-party settlements among those means, this 

Court may not read such a requirement into the statute. See Banker v. Banker, 196 W. Va. 

535, 546-47, 474 S.E.2d 465, 476-77 (1996) (“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.”); Martin v. Randolph Cty. Bd. of Educ., 195 

W. Va. 297, 312, 465 S.E.2d 399, 414 (1995) (“[C]ourts must presume that a legislature says 

in a statute what it means and means in a statute what it says there.” (quotations and citations 

omitted)); Syl. pt. 3, Manchin v. Dunfee, 174 W. Va. 532, 327 S.E.2d 710 (1984) (“In the 

interpretation of statutoryprovisions the familiar maxim expressio unius est exclusio alterius, 

the express mention of one thing implies the exclusion of another, applies.”). 

17
 
 

 

Accordingly, based upon the foregoing analysis, we now hold that an award 

of dependents’ death benefits under the workers’ compensation laws of West Virginia is 

payable, notwithstanding W. Va. Code § 23-2-1c(d), while benefits awarded under the 

workers’ compensation laws of another state for the same injury are suspended due to a thirdparty settlement. 

Applying this holding to the instant claim, we find that, because the 

dependents’ benefits awarded under Rhode Island law have been suspended, Mrs. Moran is 

entitled to receive payments of the dependents’ benefits awarded to her under West Virginia 

law. The BOR’s ruling to the contrary is in violation of W. Va. Code § 23-2-1c(d) and is the 

result of erroneous conclusions of law. Therefore, the ruling is reversed. 

IV.
 

CONCLUSION
 

For the reasons herein explained, the decision of the BOR is reversed, and this 

claim is remanded for payment of dependents’ benefits retroactive to the date on which the 

Rhode Island dependents’ benefits ceased to be paid. 

Reversed and remanded. 

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