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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 

January 2018 Term 

_______________ 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’ Compensation 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 the right to file a separate opinion. 
SYLLABUS BY THE COURT
 

1. When a question on appeal 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 Legislature.” 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 unambiguous and plainly 

expresses the legislative intent will not be interpreted 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). 

i 
Justice Ketchum: 

In this appeal from the Workers’ Compensation Board of Review, an 

employer paid temporary total disability benefits to a claimant 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 extra 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. However, this Court finds the Board of Review 

has misread those laws. Under the relevant 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 employer never sought to modify 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 PROCEDURAL BACKGROUND 

The claimant in this workers’ compensation case is Edward Reed, who 

worked as a shuttle driver for his employer, Exel Logistics, Inc. On June 27, 2013, the 

1 
 

claimant 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 and stabilize the injury. The record 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’ compensation insurer promptly found the claim 

compensable. More importantly, the claims examiner for the insurer promptly began 

paying the claimant temporary total disability 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 that the claimant had reached 

his maximum degree of medical improvement (“MMI”). The doctor also opined that the 

claimant was a candidate for vocational rehabilitation services focused 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 refusing to approve further physical therapy or 

vocational evaluations. 

1

 In technical terms, the claimant suffered a “fracture of the lateral 

malleolus.” 

2 
 

A physician examined the claimant for any permanent impairment caused by 

his work-related injury. Based upon that examination, the claims examiner granted a 4% 

permanent partial disability award to the claimant, equal 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 hundred four weeks.” W.Va. Code 

23-4-6(c) [2005]. In an order dated June 22, 2016, relying upon this statute, the claims 

examiner for the first time decided that the payment of temporary total disability benefits 

to the claimant should have terminated two years 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 the 104-week statutory cap, until November 24, 

2015. 

The claims examiner calculated that the 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 examiner’s overpayment order to the 

Office of Judges. On March 6, 2017, the Office 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 modification or overpayment of temporary total disability 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, 

3 
in an order dated August 30, 2017, the Workers’ Compensation Board of Review reversed 

the Office of Judges and reinstated the claims 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 Judges. Our review is, therefore, guided by W.Va. 

Code § 23-5-15(d) [2005], which 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 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, [or] is 

clearly the result of erroneous conclusions of law, . . . 

Moreover, the Board of Review’s decision involved the interpretation of 

workers’ compensation statutes pertaining whether an “overpayment” of temporary total 

disability benefits has occurred. In Syllabus Point 1 of Appalachian Power Company v. 

State Tax Department, 195 W.Va. 573, 466 S.E.2d 424 (1995), this Court explained that 

“[i]nterpreting a statute or an administrative rule or regulation presents a purely legal 

question subject to de novo review.” Hence, when a question on appeal from the Board of 

Review raises a question of law, under W.Va. Code § 23-4-15 we review the Board’s 

4 
resolution 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 Review “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 arising 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 those statutes, we roughly define the parties’ 

arguments. The employer argues that West Virginia’s workers’ compensation law is clear: 

a claimant is limited to a maximum of 104 weeks of temporary total disability benefits for 

a single injury. There are no exceptions to this statutory maximum limit. Hence, any 

benefits paid to the claimant in excess of this limit should automatically be considered an 

overpayment. The employer therefore asserts that the claims examiner in this case was 

5 
 

statutorily 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 workers’ compensation 

statutes expressly limit a claims examiner’s ability to declare an overpayment of temporary 

total disability benefits. Under the law, a claimant 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 exists only where the 

claims examiner (or other representative of the employer) tries to modify or terminate those 

benefits but, due to litigation, is required 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 “overpayment,” and then only the 

amounts paid between the date of the attempted modification or termination and the ruling 

that the claimant was not entitled to the 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 nothing to order the termination of the benefits at 

the end of 104 weeks. Instead, despite having 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 continued physical rehabilitation in an attempt to 

return to the workforce. The claimant asserts that the claims examiner’s declaration of an 

6 
 

overpayment clearly violated West Virginia’s workers’ compensation laws. 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 shall receive during the continuance of the 

disability a maximum weekly benefit” based upon a percentage 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] aggregate 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. Notwithstanding any other provision of this subdivision to the 

contrary, no person may receive temporary total disability benefits under an award for a 

single injury for a period exceeding 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 terminate temporary total disability benefits when the claimant 

reaches his or her MMI. The law provides that a claims examiner “shall enter a notice 

suspending the payment of temporary total disability benefits . . . (2) When the authorized 

treating physician advises the . . . private carrier . . . 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 decline to consider this argument. 

7 
In this case, it is undisputed that the claims examiner properly awarded 

temporary total disability benefits to the claimant beginning upon his injury in June 2013, 

and properly suspended those benefits in November 2015 when the claimant’s physician 

concluded that the claimant had reached his MMI. The question we must resolve is 

whether, under the workers’ compensation laws, the 156 days of benefits that the claims 

examiner paid to the claimant beyond the 104-week limit legally constitutes an 

“overpayment” under the law. As we discuss below, we find that it does not. 

West Virginia Code § 23-4-1c(h) [2009] governs the overpayment of 

temporary total disability benefits. The statute 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 total disability benefits.” Id. Stated another way, an overpayment 

exists only when an employer has “applied for modification of a temporary total disability 

award” and has later received, in an adversarial 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 employer files a timely objection 

to any order of the Insurance Commissioner, private carrier or 

self-insured, whichever is applicable, with respect to 

compensability, or any order denying an application for 

modification with respect to temporary 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, whichever is applicable, that the 

8 
 

claimant 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 determines 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 part, 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 “overpayments” as “any monies received 

from, or paid on a claimant’s behalf by, the responsible party to which 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 carriers, 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 final, appealable decisions. W.Va. Code § 23-5-1(b). 

In response, the claimant argues that a claims representative for an 

employer’s insurance carrier is still, in essence, the representative of the employer. And 

workers’ compensation law specifically allows that representative to “make[] application 

9 
in writing for a modification of any award previously made to an employee of the 

employer” – including making an application in writing to modify 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 employer’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 received after June 2015 were 

intended for his care and rehabilitation, and neither his employer 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 “systematic [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 foundation based in West 

10 
Virginia’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 benefits 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 disability claims was a veritable Serbonian Bog of adversarial 

proceedings which resulted in temporary 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 protest would suspend the payment of a claimant’s 

temporary total disability benefits, which would work substantial economic hardship on 

the injured claimant because the adversarial hearings took so long to resolve the issue.” 

173 W.Va. at 310, 315 S.E.2d at 567. “The most 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 temporary total disability benefits. 

The Legislature also narrowly defined the process under which an employer could recover 

overpayments of temporary total disability benefits. The Legislature’s 1974 amendment 

provided 

that if an employer filed a protest to a temporary total disability 

award, the Commissioner should continue to pay the disability 

benefits during the course of the protest. The amendment also 

provided that if the Commissioner ultimately decided the 

claimant was not entitled to the benefits, the Commissioner 

11 
should 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 Syllabus 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 disability 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 the initial award of temporary total disability 

benefits, to protest subsequent awards of temporary total disability benefits 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 replaced by the insurance commissioner, and 

adversarial proceedings under W.Va. Code § 23-5-1 are now resolved by the Office of 

Judges rather than a commissioner. Nevertheless, 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 resolve an employer’s attempt to modify or 

12 
 

 

terminate, the claimant is determined to not be lawfully entitled to temporary total 

disability benefits. Moreover, since its initial adoption in 1974, this statutory overpayment 

scheme has survived eleven amendments by the Legislature, including the 2009 version of 

the statute currently disputed by the parties.3

 On this history, we refuse to accept the 

employer’s assertion that the Legislature’s 2009 adoption of W.Va. Code § 23-4-1c(h) was 

a pointless act. 

“The primary object in construing a statute is to ascertain and give effect to 

the intent of the Legislature.” Syllabus Point 1, Smith v. State Workmen’s Compensation 

Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (1975). When this Court’s resolution of an issue 

requires us to pass upon the meaning of a statute, “[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 legislative intent will not be interpreted by the 

3

 The modern overpayment scheme was adopted 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 Legislature 2005, 1st Ex. Sess., ch. 4; Acts of the Legislature 2009, 

ch. 222. 

13 
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). 

The workers’ compensation law at issue in this case 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 awarded temporary total disability benefits, the 

claimant continues to receive these benefits until the employer (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 Office of Judges, the Board of Review, or this 

Court), the employer (or its insurer) must continue to pay the temporary total disability 

benefits. If the claimant is later 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 examiner had complete control of the claim 

and of the payment of temporary total disability benefits. We do not know why the claims 

examiner did not seek to modify 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 work force, and continued to seek physical 

rehabilitation for his work-related injury. Because the claims examiner did not seek to 

modify and terminate the temporary total disability 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 days of benefits paid beyond that deadline. 

14 
IV. 

CONCLUSION 

The Board of Review concluded 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. 

15