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___________________ _____________________ ________________ IN THE SUPREME COURT OF AP PEALS OF WEST VIRGINIA January 2018 Term

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### FILED June 6, 2018 No. 17-0864 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA EDWARD REED, Petitioner

v. EXEL LOGISTICS, INC., Respondent

Appeal from the Workers’ Comp ensation Board of Review Claim No. 2014000133

Appeal No. 2051867 REVERSED AND REMANDED
Submitted: May 9, 2018 Filed: June 6, 2018
M. Jane Glauser, Esq. Lisa Warner Hunter, Esq. Schrader Byrd & Companion, PLLC Pullin, Fowler, Flanagan, Wheeling, West Virginia Brown & Poe, PLLC Counsel for the Petitioner Charleston, West Virginia Counsel for the Respondent

JUSTICE KETCHUM delivered the Opinion of the Court. JUSTICE WALKER dissents and reserves th e right to file a separate opinion.SYLLABUS BY THE COURT
1. When a question on ap peal from the Workers Compensation Board of Review raises a question of law, under W.Va. Code § 23-5-15 [2005] this Court reviews the Board’s resolution of the question de novo

. 2. “The primary object in construing a statute is to ascertain and give effect to the intent of the Le gislature.” Syllabus Point 1, Smith v. State Workmen’s Comp.
Com’r , 159 W.Va. 108, 219 S.E.2d 361 (1975).
3. “A statutory provision which is clear and unambigu ous and plainly expresses the legislative intent will not be in terpreted by the courts but will be given full force and effect.” Syllabus Point 2, State v. Epperly , 135 W.Va. 877, 65 S.E.2d 488 (1951).

iJustice Ketchum: In this appeal from th e Workers’ Compensation Board of Review, an employer paid temporary total disability benefits to a clai mant for almost two-and-a-half years while the claimant was undergoing medical and physical rehabilitation. Months later, the employer discovered it had paid the claimant benefits for an extr a 156 days beyond the date the employer was statutorily required to pay. The employer then declared those 156 days an “overpayment” and sought to recover the benefits from the claimant. The Board of Review concluded that, under our workers’ compensation laws, the employer could reclaim those benefits. Ho wever, this Court finds the Board of Review has misread those laws. Under the re levant workers’ compensation law, W.Va. Code § 23

- 4-1c(h) [2009], an employer is required to (1) give the claimant notice and clearly move to modify or terminate temporary total disability benefits on a specific date; (2) be initially unsuccessful in the modification or termination; and then (3) receive a successful ruling on the modification or termination in an adversarial proceeding. Only then may the employer recover the benefits overpaid between the date of the motion and date of the successful ruling. As set forth below, because the empl oyer never sought to m odify or terminate the benefits until 156 days after the statutory deadline, and wholly failed to follow the process set out in W.Va. Code § 23-4-1c(h), we reverse the Board of Review.

I. FACTUAL AND PROCED URAL BACKGROUND The claimant in this workers’ comp ensation case is Edward Reed, who worked as a shuttle driver for his employer, Ex el Logistics, Inc. On June 27, 2013, the 1claimant stepped on the frame of a truck and slipped. He heard a “snap” in his left foot as he fell. A doctor diagnosed the claimant with a left ankle fracture, 1 and he underwent several surgeries to repair a nd stabilize the injury. The reco rd indicates that, despite the surgeries, the claimant continued to have instability in the ankle. The claimant promptly submitted a claim for workers’ compensation benefits, and his employer’s workers’ comp ensation insurer promptly found the claim compensable. More importan tly, the claims examiner for the insurer promptly began paying the claimant temporary total di sability benefits of $67.37 a day.
The claimant continued to visit doctors and physical therapists over the next two-and-a-half years. Then , on November 25, 2015, the claimant’s doctor prepared a “Physician’s Report of Work Ability” wherein he declared th at the claimant had reached his maximum degree of medical improvement (“ MMI”). The doctor also opined that the claimant was a candidate for vocational reha bilitation services focu sed on returning the claimant to work. In response to the doctor’s report of MMI, the claims examiner halted the claimant’s temporary total disability benefits , effective November 24 , 2015. Additionally, the claims examiner entered orders refusi ng to approve further physical therapy or vocational evaluations.

1 In technical terms, the claimant suffered a “fracture of the lateral malleolus.”

2A physician examined the claimant fo r any permanent impairment caused by his work-related injury. Based upon that exam ination, the claims examiner granted a 4% permanent partial disability award to the claimant, e qual to $7,553.44. However, West Virginia law limits the payment of temporary total disability benefits to a claimant to a maximium period of “one hundr ed four weeks.” W.Va. Code 23-4-6(c) [2005]. In an orde r dated June 22, 2016, relying upon this statute, the claims examiner for the first time deci ded that the payment of tempor ary total disability benefits to the claimant should have terminated two year s after his injury, that is, by June 27, 2015. The insurer’s claims examiner retroactively declared that the insurer had improperly paid the claimant benefits for 156 days beyond th e 104-week statutory cap, until November 24, 2015. The claims examiner calculated that th e insurer had overpaid the claimant $ 10,509.72 . Using this overpayment figure , the claims examiner refused to pay the claimant his permanent partial disability award and instead declared that the claimant had a remaining overpayment – to be credited against any future award – of $2,956.28. The claimant protested the claims ex aminer’s overpayment order to the Office of Judges. On March 6, 2017, the Of fice of Judges entered an order reversing the claims examiner and finding that the claims examiner had failed to timely seek to terminate the claimant’s benefits in June 2015, or to otherwise comply with workers’ compensation laws pertaining to the modifi cation or overpayment of temporary total di sability benefits. The Office of Judges therefore concluded that the claims examiner was legally prohibited from declaring an overpayment of the 156 days of benefits paid after that date. However, 3in an order dated August 30, 2017, the Workers’ Compensati on Board of Review reversed the Office of Judges and reinstated the cl aims examiner’s decisions regarding an overpayment. The claimant, Mr. Reed, now appeals the Board of Review’s overpayment decision.

II. STANDARD OF REVIEW This case comes to this Court from an order of the Board of Review which reversed the decision of the Office of Judg es. Our review is, therefore, guided by W.Va. Code § 23-5-15(d) [2005], wh ich provides in part: (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 is sue 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 st atutory provisions, [or] is clearly the result of erroneous conclusions of law, . . . Moreover, the Board of Review’s deci sion involved the interpretation of workers’ compensation statutes pertaining wh ether an “overpayment” of temporary total disability benefits has occurre d. In Syllabu s Point 1 of Appalachian Power Company v. State Tax Department , 195 W.Va. 573, 466 S.E.2d 424 (199 5), this Court explained that “[i]nterpreting a statute or an administrativ e rule or regulation pr esents a purely legal question subject to de novo review.” Hence, when a ques tion on appeal from the Board of Review raises a ques tion of law, under W.Va. Code § 23-4-15 we review the Board’s

4resolution of the question de novo

. See , e.g. , Lovas v. Consolidation Coal Company , 222 W.Va. 91, 95, 662 S.E.2d 645 , 649 (2008) (Conclusions of law of the Workers’ Compensation Board of Revi ew “are subjected to de novo inspection.”); Dodson v. Workers’ Compensation Division , 210 W.Va. 636, 641, 558 S. E.2d 635, 640 (2001) (This Court applies a de novo standard of review to questions of law aris ing in the context of Workers’ Compensation Appeal Board decisions.); Rhodes v. Workers’ Compensation
Division , 209 W.Va. 8, 12, 543 S.E.2d 289, 293 (2000) (This Court reviews de novo questions of law decided by the Workers’ Compensation Appeal Board.); Syllabus Point 4, Emmel v. State Compensation Director , 150 W.Va. 277, 145 S.E.2d 29 (1965) (“An order of the workmens’ compensation appeal board, approving an order of the state compensation commissioner, will be reversed by this Court on appeal, where the legal conclusions of the appeal board are erroneous.”).

III. ANALYSIS The parties’ arguments require this Court to examine several workers’ compensation statutes. Before we set forth t hose statutes, we roughly define the parties’ arguments. The employer argues that West Vi rginia’s workers’ compensation law is clear: a claimant is limited to a maximum of 104 we eks of temporary total disability benefits for a single injury. There are no exceptions to this statutor y maximum limit. Hence, any benefits paid to the claimant in excess of th is limit should automatically be considered an overpayment. The employer therefore asserts that the claims examiner in this case was

5statutorily entitled to declare an overpayment of temporary total disability benefits, and was entitled to recover that overpayment from future benefit awards to the claimant. The claimant, however, argues that West Virginia’s work ers’ compensation statutes expressly limit a clai ms examiner’s ability to declare an overpayment of temporary total disability benefits. Under the law, a clai mant who is totally but temporarily disabled by a work injury is presumptively entitled to temporary total disability benefits. The employer must pay the claimant these benefits . An overpayment ex ists only where the claims examiner (or other representative of the employer) tries to modi fy or terminate those benefits but, due to litigation, is require d to continue paying until the employer’s representative receives a favorable ruling in the adversarial process. The claimant asserts that only then may the claims examiner recover an “overp ayment,” and then only the amounts paid between the date of the attempte d modification or termination and the ruling that the claimant was not entitled to th e temporary total disability benefits. The claimant argues that, in this case , the claims examiner never objected to or sought to modify or terminate the claimant ’s overall receipt of temporary total disability benefits. The claims examiner also did nothi ng to order the termination of the benefits at the end of 104 weeks. Instead, despite havi ng a duty to monitor the claim, the claims examiner negligently authorized and paid an extra 156 days of benefits beyond the statutory maximum limit and then, months later, arbitrarily declared those benefits an overpayment. The claimant contends he is blameless for the claims examiner’s actions, and says he relied upon the benefits, to his detriment, and con tinued physical rehabilitation in an attempt to return to the workforce. The claimant asserts that the claims examiner’s declaration of an 6overpayment clearly violated West Virginia’s workers’ compensation la ws. We agree with
the claimant. 2 We begin with the relevant workers’ compensation laws. When an employee is injured in the course of and as a result of his or her employment, and “the injury causes temporary total disability, the employee sha ll receive during the continuance of the disability a maximum week ly benefit” based upon a percenta ge of the employee’s wages. W.Va. Code § 23-4-6(b) [2005]. However, the payment of those temporary total disability benefits “is limited as follows: . . . [the] aggr egate award for a single injury for which an award of temporary total disability benefits is made . . . shall be for a period not exceeding one hundred four weeks. Notw ithstanding any other provision of this subdivision to the contrary, no person may receive temporary to tal disability benefits under an award for a single injury for a period exceedi ng one hundred four weeks[.]” W.Va. Code § 23-4-6(c). The workers’ compensation laws require a claims examiner for an employer’s insurer to terminat e temporary total disability be nefits when the claimant reaches his or her MMI. The law provides th at a claims examiner “shall enter a notice suspending the payment of tempor ary total disability benefits . . . (2) When the authorized treating physician advises the . . . private carrie r . . . that the claimant has reached his or her maximum degree of improvement[.]” W.Va. Code § 23-4-7a(e)(2) [2005].

2 The claimant also argues that the 156 days of benefits should be construed as rehabilitation benefits. We de cline to consider this argument.

7In this case, it is undisputed that th e claims examiner properly awarded temporary total disability benef its to the claimant beginning upon his injury in June 2013, and properly suspended those be nefits in November 2015 when the claimant’s physician concluded that the claimant had reached hi s MMI. The question we must resolve is whether, under the workers’ comp ensation laws, the 156 days of benefits that the claims examiner paid to the claimant beyond the 104-week limit le gally constitutes an “overpayment” under the law. As we di scuss below, we find that it does not. West Virginia Code § 23-4-1c(h) [2009] governs the overpayment of temporary total disability benefits. The stat ute establishes that an overpayment occurs when two things occur: “an employer files a timely objection” to an order “denying an application for modification with respect to temporary total disability benefits;” and an adversarial proceeding results in an order finding “that the claimant was not entitled to receive such temporary tota l disability benefits.” Id . Stated another way, an overpayment exists only when an employer has “applied for modi fication of a temporary total disability award” and has later received, in an adversaria l proceeding, a “final decision in that case [which] determines that the claimant was not entitled to the benefits[.]” Id . That statute provides, in pertinent part: (h) In the event that an em ployer files a timely objection to any order of the Insurance Commissioner, private carrier or self-insured, whichever is a pplicable, with respect to compensability, or any order denying an application for modification with respect to tem porary total disability benefits, . . . the division shall continue to pay to the claimant such benefits . . . during the period of such disability. Where it is subsequently found by the Insurance Commissioner, private carrier or self-insured, whiche ver is applicable, that the 8claimant was not entitled to receive such temporary total disability benefits . . . , or any part thereof, so paid, the Insurance Commissioner, private carrier or self-insured, whichever is applicable, shall credit said employer’s account with the amount of the overpayment. When the employer has protested the compensability or applied for modification of a temporary total disability benefit award . . . and the final decision in that case determin es that the claimant was not entitled to the benefits . . . , the amount of benefits or expenses is considered overpaid. For all awards made . . . the Insurance Commissioner, private carriers or self-insured employer may recover the amount of overpaid benefits or expenses by withholding, in whole or in pa rt, future disability benefits payable to the individual in the same or other claims and credit the amount against the overpayment until it is repaid in full. Id. See also 85 CSR § 1.12.1 [2009] (defining “ove rpayments” as “any monies received from, or paid on a claimant’s behalf by, the responsible party to wh ich it is subsequently determined by the responsible party that the injured worker was not entitled. Overpayment may include, but shall not be limited to, the payment of temporary total disability benefits[.]”). The employer contends, in effect, that the overpayment statute is a meaningless relic of a bygone era. The employer asserts that employers no longer object to decisions made by private insurance carrier s, or apply for modifications of temporary total disability benefits. Instead, the employer’s insurance “carrier has sole authority to act on the employer’s behalf in all aspects related to litigation of the claim,” W.Va. Code § 23

- 5-1(a) [2009], and to enter fi nal, appealable decisions. W.Va. Code § 23-5-1(b). In response, the claimant argues th at a claims representative for an employer’s insurance carrier is still, in essence, the repres entative of the employer. And workers’ compensation law speci fically allows that represen tative to “make[] application 9in writing for a modification of any award previously made to an employee of the employer” – including making an application in writing to m odify or terminate temporary total disability benefits. W.Va. Code § 23-5-4 [2005]. Furthermore, the claimant argues that West Virginia Code § 23-4-1c(h) provides a clear, narrow guideline defining the “overpayment” of temporary total disability benefits. The claimant contends that W.Va. Code § 23-4-1c(h) permits the employer or its representative to recover overpayments only when there has been an adjudicated final decision in the employer’s favor of an empl oyer’s modification or termination of the claimant’s receipt of temporary total disability benefits. In this case, neither the employer nor the claims examiner gave the claimant any notice, objection, or appealable order indicating the claimant’s benefits should have been terminated in June 2015. The claimant therefore could reasonably have believed the benefits he re ceived after June 2015 were intended for his care and rehab ilitation, and neither his employe r nor the claims examiner did anything to suggest otherwise. The claimant stresses that, on this record, it is apparent that the claims examiner violated the “syste matic [workers’ compensation] program for the monitoring of injury claims where the disability continues longer than might ordinarily be expected.” W.Va. Code 23-4-7a(a). The claimant asserts it violates standards of fairness and due process for an employer to pay a claimant benefits needed to assist in the claimant’s rehabilitation and then, without any fault on the part of the claimant, arbitrarily and retroactively declare those benefits as “overpayments.” We reject the employer’s arguments that West Virginia Code § 23-4-1c(h) is a pointless anachronism. The statute continues to have a strong foun dation based in West 10Virginia’s workers’ compensation history. As we discussed in Butcher v. State Workers’ Compensation Commissioner , 173 W.Va. 306, 315 S.E.2d 563 (1983), prior to the Legislature’s 1974 adoption of the language now found in W.Va. Code § 23-4-1c(h), “payments of temporary total disability benef its were stopped when an employer protested their continued payment.” 173 W.Va. at 309-310, 315 S.E.2d at 567. As a result, “the handling of temporary total disa bility claims was a veritable Serbonian Bog of adversarial proceedings which resulted in te mporary total disability claims being litigated over periods of months or years.” 173 W.Va . at 309, 315 S.E.2d at 566. “The ultimate consequence of this procedure was that an employer’s protes t would suspend the payment of a claimant’s temporary total disability bene fits, which would work substa ntial economic hardship on the injured claimant because th e adversarial hearings took so long to resolv e the issue.” 173 W.Va. at 310, 315 S. E.2d at 567. “The mo st apparent beneficiaries were the lawyers whose clients could withstand the fee-rigors of the system.” 173 W.Va . at 309, 315 S.E.2d
at 566. In 1974, the Legislature amended W.Va. Code § 23-4-1c to expressly restrict an employer’s ability to stymie a claimant’s receipt of temporar y total disability benefits. The Legislature also narrowly defined the pr ocess under which an employer could recover overpayments of temporary total disability be nefits. The Legislature’s 1974 amendment provided that if an employer filed a protes t to a temporary total disability award, the Commissioner should c ontinue to pay the disability benefits during the course of the protest. The amendment also provided that if the Commi ssioner ultimately decided the claimant was not entitled to th e benefits, the Commissioner 11should enter an order reimbursing the employer for the overpayment. The Commissioner would then seek to collect the overpayment from the claimant. 173 W.Va. at 310, 315 S.E.2d at 567.
In Mitchell v. State Workmen’ s Compensation Commissioner , 163 W.Va. 107, 256 S.E.2d 1 (1979 ), this Court made a comprehensive examination of W.Va. Code 23-4-1c. We concluded, in Sy llabus Point 4, as follows: The overpayment provisions of W.Va. Code, 23-4-1c, apply only where the Commissioner determines in a W.Va. Code, 23-5-1, proceeding, that the claimant was not lawfully entitled to the temporary total di sability benefits originally by virtue of the fact that the claim did not jurisdictionally qualify. 163 W.Va. at 108, 256 S.E.2d at 4. Building upon the Court’s reasoning in Mitchell , the Court in Butcher determined that nothing in W.Va. Code § 23-4-1c “authorizes an employer, who has not originally protested th e initial award of temporary total disability benefits, to protest subsequent awards of tem porary total disability be nefits and secure an evidentiary hearing over the continuation of temporary total disability benefits. Such employer’s remedy is to file a petition for modification[.]” Butcher , 173 W.Va. at 312, 315 S.E.2d at 569-70. In the decades since Mitchell and Butcher were decided, the workers’ compensation commissioner has been re placed by the insurance commissioner, and adversarial proceedings under W.Va. Code § 23-5-1 are now resolv ed by the Office of Judges rather than a commissioner. Neverthe less, the central proposition of these cases continues to stand: the overpayment provisions of W.Va. Code § 23-4-1c(h) apply only where, after an adversarial proceeding to re solve an employer’s a ttempt to modify or
12terminate, the claimant is de termined to not be lawfully entitled to temporary total disability benefits. Moreover, since its initial adoption in 1974, this statutory overpayment scheme has survived eleven am endments by the Legislature, including the 2 009 version of the statute currently di sputed by the parties. 3 On this history, we refuse to accept the employer’s assertion that the Le gislature’s 2009 adoption of W.Va. Code § 23-4-1c(h) was a pointless act. “The primary object in construing a statut e is to ascertain an d give effect to the intent of the Legislat ure.” Syllabus Point 1, Smith v. State Workmen’s Compensation
Comm’r , 159 W.Va. 108, 219 S.E.2d 361 (1975). Wh en this Court’s resolution of an issue requires us to pass upon the meaning of a statut e, “[w]e look first to the statute’s language. If the text, given its plain meaning, answers the interpretive question, the language must prevail and further inquiry is foreclosed.” Appalachian Power Co. v. State Tax Dep’t of West Virginia , 195 W.Va. 573, 587, 466 S.E.2d 424, 438 (1995). Well-established rules of statutory construction require that “[a] statutory provision which is clear and unambiguous and plainly expresses the legisla tive intent will not be interpreted by the

3 The modern overpayment scheme was a dopted by the Legislature in 1974. See Acts of the Legislature 1974 , ch. 145. It has since been amended and reenacted eleven times. See Acts of the Legislature 1975 , ch. 215; Acts of the Legislature 1976 , ch. 134; Acts of the Legislature 1978 , ch. 108; Acts of the Legislature 1979 , ch. 121; Acts of the Legislature 1986 , ch. 171; Acts of the Legislature 1991 , ch. 16; Acts of the Legislature 1994 , ch. 181; Acts of the Legislature 1995 , ch. 253; Acts of the Legislature 2003, 2nd Ex. Sess ., ch. 27; Acts of the Legislat ure 2005, 1st Ex. Sess ., ch. 4; Acts of the Legislature 2009 , ch. 222.
13courts but will be given full force and effect.” Syllabus Point 2, State v. Epperly , 135 W.Va. 877, 65 S. E.2d 488 (1951). The workers’ compensation law at issue in this cas e plainly expresses the Legislature’s intent behind W.Va. Code § 23-4-1c(h): once a work-related injury has been ruled compensable and a claimant has been aw arded temporary total disability benefits, the claimant continues to receive these benefits until the empl oyer (or it its representative) properly seeks to modify or terminate that award. While the modification or termination is pending or under review (such as by the Offi ce of Judges, the Board of Review, or this Court), the employer (or its in surer) must continue to pay the temporary total disability benefits. If the claimant is la ter found to not be entitled to the benefits that were paid, then an overpayment legally exists and the employer may seek to recover the overpayment. In the instant case, the claims examin er had complete control of the claim and of the payment of temporar y total disability benefits. We do not know why the claims examiner did not seek to modi fy and terminate the claimant’s benefits at the end of 104 weeks; perhaps it was carelessness, or perhaps it was an act of grace to assist the claimant. All we can say from this record is that the claimant relied to his detriment upon the claims examiner’s actions, did not return to the wo rk force, and continued to seek physical rehabilitation for his work-relate d injury. Because the claims examiner did not seek to modify and terminate the temporary total disa bility benefits at the end of 104 weeks, as required by the clear language of W.Va. Code § 23-4-1c(h), the claims examiner may not seek to recover as overpayments the 156 da ys of benefits paid beyond that deadline.

14IV. CONCLUSION The Board of Review conclu ded in its August 30, 2017, order that the claims examiner’s overpayment decision did not violate W.Va. Code § 23-4-1c(h). This was clearly an erroneous conclusion of law. The order is therefore reversed and the claim is remanded for further proceedings. Reversed and Remanded.

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