The opinion
IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
JOSEPH CRAIG DORSEY,
Claimant Below, Petitioner
May 22, 2025
released at 3:00 p.m.
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
v.) No. 24-ICA-254 (JCN: 2023006378) INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
BLACKHAWK MINING, LLC,
Employer Below, Respondent
and
JOHN ADKINS
Claimant Below, Petitioner
v.) No. 24-ICA-256 (JCN: 2023023264)
MARFORK COAL COMPANY, LLC,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Joseph Craig Dorsey (“Mr. Dorsey”) appeals the June 12, 2024, order of
the Workers' Compensation Board of Review (“BOR”). Respondent Blackhawk Mining,
LLC (“Blackhawk”) filed a timely response. Mr. Dorsey filed a reply. Petitioner John
Adkins (“Mr. Adkins”) appeals the May 22, 2024, order of the BOR. Respondent Marfork
Coal Company, LLC (“Marfork”) filed a timely response. Mr. Adkins filed a reply.1 The
issues on appeal are whether Mr. Dorsey and Mr. Adkins are entitled to initial lump sum
permanent partial disability award payments based on their dates of disability and whether
they are entitled to interest on the initial lump sum payments.
This Court has jurisdiction over these appeals pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds that there is error in the BOR’s decisions but no substantial
question of law. These cases satisfy the “limited circumstances” requirement of Rule 21(d)
of the Rules of Appellate Procedure for reversal in a memorandum decision. For the
1
Mr. Dorsey and Mr. Adkins are represented by Samuel B. Petsonk, Esq.
Blackhawk is represented by T. Jonathan Cook, Esq. Marfork is represented by Sean
Harter, Esq.
1
reasons set forth below, the BOR's decision with respect to Mr. Dorsey is reversed, and his
case is remanded for further proceedings consistent with this decision. Mr. Adkins’ appeal
is dismissed as moot.
This is a consolidated appeal of two workers’ compensation occupational
pneumoconiosis cases in which Mr. Dorsey and Mr. Adkins, who were awarded permanent
partial disability benefits, challenge the date on which their award payments commenced.
In both cases, Mr. Dorsey and Mr. Adkins started receiving installment payments soon
after the date of their respective permanent partial disability award orders. Mr. Dorsey and
Mr. Adkins argued before the BOR that their permanent partial disability payments should
have been paid from an earlier date, which would have entitled them to an initial lump sum
payment representing the period from the date of disability through the date of the
permanent partial disability award orders. Mr. Dorsey and Mr. Adkins also sought an award
of interest for the delayed commencement of payments. The BOR denied Mr. Dorsey and
Mr. Adkins relief in the separate orders and they now appeal to this Court.
We conclude that, in light of the record in this case, the date of disability referenced
in West Virginia Code § 23-4-18 (2003) requires permanent partial disability payments in
occupational pneumoconiosis claims to commence as of the date of the Occupational
Pneumoconiosis Board (“OP Board”) findings and that periodic payments due between the
date of disability and the date upon which periodic payments commence should be paid in
a lump sum arrearage payment to the claimant. However, West Virginia Code § 23-4-16a
(2005) does not provide for interest on permanent partial disability arrearage payments
under the circumstances of these cases. The entire award in Case No. 24-ICA-256 is fully
paid, so we find the appeal of Mr. Adkins to be moot. However, insofar as periodic
payments remain for Mr. Dorsey in Case No. 24-ICA-254, the BOR order of June 12, 2024,
in that case is reversed and remanded for further action consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Mr. Dorsey filed an application for workers’ compensation occupational
pneumoconiosis benefits on September 9, 2022, alleging a date of last exposure to
occupational dust of July 12, 2022. According to Mr. Dorsey’s arguments before the BOR,
a September 2022, medical report was submitted with his application for occupational
pneumoconiosis benefits.2 At the time, Mr. Dorsey was sixty-two years old and had a forty-
three-year work history as a coal miner. He spent twenty years as an underground coal
miner and twenty-three years as a surface coal miner. His chest x-rays were interpreted as
showing a nodular and fibrotic process throughout both lungs of large coalescent opacities,
2
Mr. Dorsey did not include the September 2022 medical report in the appendix
record.
2
consistent with progressive massive fibrosis.3 Eleven months after filing his application,
Mr. Dorsey underwent pulmonary function testing at the Charleston Area Medical Center’s
Occupational Lung Disease Center (“Occupational Lung Disease Center”). The OP Board
found on August 1, 2023, that Mr. Dorsey’s pulmonary function tests indicated total
pulmonary impairment attributed to occupational pneumoconiosis. The OP Board’s
findings were transmitted by the West Virginia Offices of the Insurance Commissioner
(“OIC”) to the claim administrator who issued an order dated October 3, 2023, granting
Mr. Dorsey a sixty-five percent permanent partial disability award.4 According to the order,
Mr. Dorsey would be paid $174,246.80 in 260 biweekly installments of $670.18. Payments
commenced soon thereafter and were prospective only, so that no lump-sum arrearage
payment was made.
Mr. Dorsey filed a protest to the October 3, 2023, order with the BOR. He argued
that, pursuant to West Virginia Code § 23-4-18, permanent partial disability payments must
begin from the date of disability, which Mr. Dorsey argues was in September of 2022, the
same month that an initial medical report, not included in the appendix record, found
impairment due to occupational pneumoconiosis. On June 12, 2024, the BOR issued an
order affirming the claim administrator’s order dated October 3, 2023, insofar as it did not
provide for any lump sum arrearage payment. The BOR found that the claim administrator
adhered to the provisions of West Virginia Code § 23-4-6a, and that Mr. Dorsey was not
entitled to a lump sum arrearage payment that Mr. Dorsey contended should have been paid
beginning in September 2022, his alleged date of disability. The BOR’s order did not
address Mr. Dorsey’s request for interest payments.
Mr. Adkins filed an application for workers’ compensation occupational
pneumoconiosis benefits on June 21, 2023, alleging a date of last exposure to occupational
dust on June 21, 2023. According to Mr. Adkins, his application included an April 2, 2023,
pulmonary function test administered by Richard Spencer, M.D., which found that Mr.
Adkins had pulmonary impairment due to occupational pneumoconiosis.5 Mr. Adkins was
3
Progressive massive fibrosis, also known as complicated pneumoconiosis, is a
severe form of irreversible and progressive dust induced lung disease which causes larger
masses of fibrotic tissue to coalesce, producing extensive fibrosis, emphysema formation,
and cavitation and destruction of normal lung tissue. Progressive massive fibrosis causes
significant pulmonary impairment and in some cases death.
4
The award is consistent with a 2011 West Virginia Informational Letter (No. 177)
issued by the OIC declaring that claimants who suffer from total pulmonary function
impairment attributable to occupational pneumoconiosis should be awarded a sixty-five
percent permanent partial disability award.
5
Neither Mr. Adkins’ application for benefits nor Dr. Spencer’s pulmonary function
testing were included in the appendix record.
3
referred by the OP Board to the Occupational Lung Disease Clinic on November 2, 2023.
According to the OP Board’s findings dated November 2, 2023, Mr. Adkins had an
eighteen-year exposure to the hazards of occupational pneumoconiosis. He worked as an
underground coal miner for fifteen years and a surface miner for three years. Mr. Adkins’
chest x-rays showed no evidence of occupational pneumoconiosis. However, his
pulmonary function studies revealed a fifteen percent pulmonary impairment.6 By order
dated December 27, 2023, the claim administrator granted Mr. Adkins a fifteen percent
permanent partial disability award based on the November 2, 2023, OP Board findings.7
The order states that Mr. Adkins would be paid monthly installments of $2,912.09 from
January 1, 2024, through February 23, 2025.
Mr. Adkins filed a protest to the December 27, 2023, order with the BOR and argued
that his permanent partial disability payments must begin from the date of disability, which
he asserts was April 2, 2023, the date of Dr. Spencer’s pulmonary function tests which
presumably found pulmonary impairment. On May 22, 2024, the BOR issued an order
affirming the claim administrator’s order dated December 27, 2023, concerning the
arrearage issue. Like in Mr. Dorsey’s case, the BOR stated that the claim administrator
adhered to the requirements of West Virginia Code § 23-4-6a, and that Mr. Adkins was not
entitled to an arrearage payment. The BOR order did not address interest payments. Mr.
Adkins appealed to this Court. During oral argument before this Court, Mr. Adkins’ counsel
disclosed that the entire permanent partial disability award had been paid to Mr. Adkins by
installments.
STANDARD OF REVIEW
Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, and summarized by the Supreme Court of Appeals of West Virginia (“SCAWV”) as
follows:
The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
6
The OP Board based the fifteen percent impairment on its November 2, 2023,
diffusion studies administered at the Occupational Lung Disease Clinic.
7
In occupational pneumoconiosis claims, if a claimant was exposed to the hazards
of occupational pneumoconiosis for ten years during the fifteen years immediately
preceding his or her date of last exposure, it is presumed that the claimant’s pulmonary
impairment is due to his or her occupation. This presumption is not conclusive. W. Va.
Code § 23-4-8c(b).
4
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:
(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
Syl. Pt. 2, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024).
DISCUSSION
Before addressing the merits of the Mr. Dorsey’s and Mr. Adkins’ arguments, we
recognize the statutory nature of West Virginia’s workers’ compensation claim process,
including permanent partial disability awards for occupational pneumoconiosis. In West
Virginia, “[t]he right to workmen’s compensation is wholly statutory and in no way based
on the common law; the statutes are sui generis and controlling, and the rights, remedies,
and procedure provided thereby are exclusive…[A] claimant is entitled to receive benefits
only in the manner and to the extent authorized by statute….” Dunlap v. State Comp. Dir.,
149 W. Va. 266, 270-71, 140 S.E.2d 448, 451-52 (1965) (citations omitted).
In most workers’ compensation injury and disease claims, a claim administrator8
has sole authority to act on behalf of an employer when making claim decisions, and
employers have no right protest a claim administrator order. See W. Va. Code R. § 85-1-
7.3 (2009). In injury and most occupational disease claims, a claim administrator
determines a claimant’s impairment from the occupational injury or disease, and it issues
a permanent partial disability award order which only a claimant may protest. 9 See W. Va.
Code § 23-4-1d(a) (2005); W. Va. Code R. § 85-1-7.3. However, in occupational
8
The phrase “claim administrator” encompasses private carriers, self-insured
employers, and the administrator of the Old Fund, as the context requires.
9
A claim administrator’s impairment findings are typically based on medical
evaluations to which claimants are referred for examination.
5
pneumoconiosis claims, the OP Board, and not the claim administrator, exclusively decides
a claimant’s pulmonary impairment from occupational pneumoconiosis. See W. Va. Code
§ 23-4-8c(c)(1) (2009). The impairment findings of the OP Board are forwarded to the
claim administrator, which must issue the permanent partial disability award in accordance
with the OP Board’s findings. See W. Va. Code § 23-4-6a (2005); W. Va. Code R. § 85-1-
10.5.d (2009). Unlike injury and most occupational disease claims, employers have a right
to protest permanent partial disability award orders in occupational pneumoconiosis
claims. See W. Va. Code § 23-5-1a(b)(1) (2022); W. Va. Code R. § 85-1-7.3.a. The findings
of the OP Board shall be affirmed unless the decision is clearly wrong in view of the
reliable, probative, and substantial evidence on the whole record. See W. Va. Code § 23-4-
6a. “If the [claim administrator] makes an award for permanent partial…disability, the
[claim administrator] shall start payment of benefits…within fifteen working days from the
date of the award.” W. Va. Code § 23-4-1d(a). Finally, permanent partial disability awards
are typically paid in installments, but a claim administrator may make lump sum payments.
See W. Va. Code R. § 85-1-10.5.c.
Commencement of PPD Benefit Installment Payments
The BOR found that the claim administrator in each case complied with the relevant
statutes by making installment payments of the awards that did not include any arrearage
payments based upon a prior date of disability. Mr. Dorsey and Mr. Adkins argue that the
BOR made an error of law because permanent partial disability benefits must begin on the
“date of disability” pursuant to the plain text of West Virginia Code § 23-4-18, which states
in part, “[p]ayments [of benefits] may be made in…periodic installments determined by
the commission in each case…In all cases where compensation is awarded or increased,
the amount of compensation shall be calculated and paid from the date of disability.”
(emphasis added). Blackhawk and Marfork support the BOR’s orders and contend that
West Virginia Code § 23-4-18 is inapplicable and that West Virginia Code § 23-4-1d(a) (“If
the [claim administrator] makes an award for permanent partial… disability, the [claim
administrator] shall start payment of benefits…within fifteen working days from the date
of the award”) controls.
We reject Blackhawk’s and Marfork’s request that this Court find that West Virginia
Code 23-4-18 is inapplicable to permanent partial disability claims. Under the rule of in
pari materia, “[s]tatutes which relate to the same subject matter should be read and applied
together so that the Legislature’s intention can be gathered from the whole of the
enactments.” Syl. Pt. 3, Smith v. State Workmen’s Comp. Com’r, 159 W. Va. 108, 219
S.E.2d 361 (1975). Similarly, “[w]here it is possible to do so, it is the duty of the courts, in
the construction of statutes, to harmonize and reconcile laws, and to adopt that construction
of a statutory provision which harmonizes and reconciles it with other statutory
provisions.” Charleston Gazette v. Smithers, 232 W. Va. 449, 468, 752 S.E.2d 603, 622
(2013) (quoting State v. Williams, 196 W. Va. 639, 641, 474 S.E.2d 569, 571 (1996)).
6
Blackhawk argues that the date of disability trigger in West Virginia Code § 23-4-
18 applies only to permanent total disability awards, and that as long as it complies with
West Virginia Code § 23-4-1d(a), and payments begin within fifteen days of an order
awaiting permanent partial disability benefits, no lump sum arrearage payments are
required. However, on its face West Virginia Code § 23-4-18 applies to permanent partial
disability awards as well as permanent total disability awards. Moreover, the SCAWV has
found that “any award of disability benefits made for a personal injury, whether temporary
total, permanent partial or permanent total, ‘shall be calculated and paid from the date of
disability.’” Dunlap v. State Comp. Dir., 149 W. Va. at 268, 140 S.E.2d at 450.
Applying the “date of disability” standard is not straightforward, however. “The
phrase ‘date of disability’ is not statutorily defined, and no statutory guidance is provided
regarding how that date should be determined [for permanent partial disability awards].
Consequently, in the absence of legislative direction, this Court has been required to discern
a suitable approach.” Lambert v. Workers’ Comp. Div., 211 W. Va. 436, 444, 566 S.E.2d
573, 581 (2002). Several SCAWV cases address how to determine the date of disability
concerning permanent total disability claims, but we have located no definitive authority
concerning the “date of disability” language in West Virginia Code § 23-4-18 in the context
of permanent partial disability awards.
Mr. Dorsey and Mr. Adkins argue that for occupational pneumoconiosis permanent
partial disability claims, the date of disability should begin on a date determined by the OP
Board, and if the OP Board does not specify a particular date of disability, the date of
disability should be the first date on which a medical expert offers an opinion that a
claimant has pulmonary impairment due to occupational pneumoconiosis. In support of
their position, Mr. Dorsey and Mr. Adkins cite Lambert and Miracle v. Workers’ Comp.
Comm’r, 181 W. Va. 443, 383 S.E.2d 75 (1989) which interpret “date of disability” in the
context of permanent total disability onset. The SCAWV recognized in Miracle the
“inherent difficulties in determining the date upon which an injured worker becomes
permanently and totally disabled. Medical evidence and expert opinion are frequently
conflicting, since estimates of permanent disability are often nothing more than that -
estimates.” Id., 181 W. Va. at 446, 383 S.E.2d at 78.
However, determining the date of disability for permanent total disability onset may
be distinguished from establishing a date of disability for permanent partial disability
payments. “In awards short of those based on total permanent disability the time when
payments begin is not of controlling importance, because the limited number of payments
will ultimately be made, and the claimant cannot be seriously prejudiced.”10 Burgess v. State
10
West Virginia Code § 23-4-6(l) (2005) also provides that permanent partial
disability installment payments will be made to the dependents of a claimant who dies
before being paid in full. “Compensation, either temporary total or permanent partial, under
7
Comp. Comm’r, 121 W. Va. 571, 575, 5 S.E.2d 804, 806 (1939). This approach reflects that
a permanent partial disability award is a fixed monetary sum, and changing the date of
disability will not alter the amount of the award. On the other hand, a permanent total
disability award is not a fixed monetary amount because permanent total disability benefits
begin on the date of disability and are paid until a claimant reaches retirement age. Thus,
a change in the date of disability in permanent total disability awards can increase or
decrease an employer’s liability. These differences suggest the importance of precision
when determining dates of disability in permanent total disability awards, while
establishing a date of disability for purposes of permanent partial disability claims is
generally less consequential, although the legislative direction that such claims be
processed expeditiously must be met.
Burgess primarily addresses permanent total disability onset and has been modified
by Lambert and Miracle, but the date of disability language in Burgess offers a sound
approach to deciding the date of disability in Mr. Adkins’ and Mr. Dorsey’s occupational
pneumoconiosis permanent partial disability claims. Burgess affirmed the former Workers’
Compensation Appeal Board (“Appeal Board”),11 which found that the date of disability
was the date of its order. Burgess described two reasons for affirming the Appeal Board: 1)
the Appeal Board was a factfinding agent and the date of disability was in dispute until it
made a decision; and 2) the claimant was working through the date of the award. The
former reasoning is applicable to this case.
As established by West Virginia Code § 23-4-8c12 and acknowledged by Mr. Adkins
and Mr. Dorsey, the OP Board is the fact finder in occupational pneumoconiosis permanent
this section shall be payable only to the injured employee and the right to the compensation
shall not vest in his or her estate, except that any unpaid compensation which would have
been paid or payable to the employee up to the time of his or her death, if he or she had
lived, shall be paid to the dependents of the injured employee if there are any dependents
at the time of death.” Id.
11
When Burgess was decided, “[t]he [Workers’] Compensation Appeal Board [was]
a fact-finding tribunal, and its findings of fact [were] not…set aside…unless clearly
wrong.” Id. at Syl. Pt. 1. The court held that, “[u]p to the date when the order of the Appeal
Board was entered…, the disability of the claimant was in dispute…[and because the
claimant’s] disability was not ascertained, [it] could not be said to exist in legal effect,
until the entry of the Appeal Board’s order.” Id., 121 W. Va. at 575, 5 S.E.2d at 806.
Burgess found that the date of disability was the date on which the fact finder made its
decision regarding the claimant’s disability.
12
West Virginia Code § 23-4-8c reads, in part:
8
partial disability claims. It reviews the medical evidence and issues a decision in the form
of findings, which must be adopted by the private carrier or self-insured employer’s claim
administrator. Before the OP Board issues its findings, a claimant’s impairment is
undetermined and legally does not exist. However, once the OP Board releases its findings,
a claimant’s disability is established for the purposes of West Virginia Code § 23-4-18. We
find this method consistent with Burgess and not prejudicial to either Mr. Adkins or Mr.
Dorsey under the record in this case. We therefore hold that the date of disability for Mr.
Adkins’ and Mr. Dorsey’s occupational pneumoconiosis permanent partial disability claims
is the date on which the OP Board issued its findings.
The BOR affirmed the private carrier’s orders which presumed the date of disability
was the date of the claim administrator’s permanent partial disability award. However, as
aforementioned, we find that the date of disability is the date of the OP Board findings.
With respect to Mr. Adkins, he has already received full payment for his permanent partial
disability award. With no payments due, we find the issue of arrearage payments moot.
“Generally, moot questions are not proper for consideration by this Court…
Moot questions or abstract propositions, the decision of which would avail nothing in the
determination of controverted rights of persons or of property are not properly cognizable
by a court.” State ex rel. Jeannette H. v. Pancake, 207 W. Va. 154, 159, 529 S.E.2d 865,
870 (2000) (citation omitted). Because Mr. Adkins was fully paid for his permanent partial
(a) The Occupational Pneumoconiosis Board, as soon as practicable, after it
has completed its investigation, shall make its written report, to the Insurance
Commissioner, private carrier or self-insured employer, whichever is
applicable, of its findings and conclusions on every medical question in
controversy…
(c) The findings and conclusions of the board shall set forth, among other
things, the following:
(1) Whether or not the claimant or the deceased employee has contracted
occupational pneumoconiosis and, if so, the percentage of permanent
disability resulting therefrom;
(2) Whether or not the exposure in the employment was sufficient to have
caused the claimant’s or deceased employee’s occupational pneumoconiosis
or to have perceptibly aggravated an existing occupational pneumoconiosis
or other occupational disease; and
(3) What, if any, physician appeared before the board on behalf of the
claimant or employer and what, if any, medical evidence was produced by or
on behalf of the claimant or employer….
9
disability award, we dismiss as moot the issue of whether he is entitled to arrearage
payments.
Mr. Dorsey is still receiving installment permanent partial disability payments.
Therefore, his case is remanded to the claim administrator, and it is ordered that Mr. Dorsey
be paid arrearage permanent partial disability benefits in a manner consistent with this
opinion.
Interest on Delayed Installment Payments
The next issue is whether Mr. Dorsey and Mr. Adkins would be entitled to interest
on any lump sum permanent partial disability payments that might accrue from the date of
disability until the first payment of benefits. In arguments before this Court, Mr. Dorsey
and Mr. Adkins described the relief being requested as prejudgment interest, outlined in
West Virginia Code § 56-6-31(b) (2018).13 They acknowledge the workers’ compensation
interest statute, West Virginia Code § 23-4-16a, which states:
Whenever any award of temporary total, permanent partial or permanent total
disability benefits or dependent benefits is made on or after the first day of
July, one thousand nine hundred seventy-one, and a protest is filed to the
award or an appeal is taken from the award by an employer only and not by
the claimant or dependent and the award is not ultimately denied or reduced
following the protest or appeal, the commission, successor to the
commission, other private carrier or self-insured employer, whichever is
applicable, shall add interest to the award at the simple rate of six percent per
annum from the date the award would have been payable had the protest or
appeal not been filed or taken, exclusive of any period for which a
13
West Virginia Code § 56-6-31(b) states as follows:
In any judgment or decree that contains special damages, as defined below,
or for liquidated damages, the court may award prejudgment interest on all
or some of the amount of the special or liquidated damages, as calculated
after the amount of any settlements. Any such amounts of special or
liquidated damages shall bear simple, not compounding, interest. Special
damages include lost wages and income, medical expenses, damages to
tangible personal property and similar out-of-pocket expenditures, as
determined by the court. If an obligation is based upon a written agreement,
the obligation bears prejudgment interest at the rate and terms set forth in the
written agreement until the date the judgment or decree is entered and, after
that, the judgment interest is the same rate as provided for below in
subsection (c) of this section.
10
continuance was granted upon motion of any party other than the protesting
or appealing employer. Any interest payable shall be charged to the account
of the protesting or appealing employer to the extent that the benefits upon
which such interest is computed are charged to the account of the employer.
However, Mr. Dorsey and Mr. Adkins argue that West Virginia Code § 23-4-16a only
addresses post-judgment interest. Therefore, this Court must apply the prejudgment interest
mandates in West Virginia Code § 56-6-31(b).
Mr. Dorsey’s and Mr. Adkins’ argument fails because employers covered by
workers’ compensation insurance are immunized from liability for statutory or common
law damages. “Prejudgment interest, according to West Virginia Code § 56-6-31 (1981)
and the decisions of this Court interpreting that statute, is not a cost, but is a form of
compensatory damages intended to make an injured plaintiff whole as far as loss of use of
funds is concerned.” Syl. Pt. 1, Buckhannon-Upshur Cnty. Airport Auth. v. R&R Coal
Contracting, Inc., 186 W. Va. 583, 413 S.E.2d 404 (1991). West Virginia Code § 23-2-6
(2022) exempts employers from compensatory damages. “Any employer subject to this
chapter who procures and continuously maintains workers’ compensation insurance as
required by this chapter or who elects to make direct payments of compensation as
provided in this section is not liable to respond in damages at common law or by statute
for the injury or death of any employee….” W. Va. Code § 23-2-6.
Workers’ compensation claims and administrative procedures are wholly statutory
and encompassed in Chapter 23 of the West Virginia Code. There is no indication the
Legislature intended West Virginia Code § 56-6-31(b) to apply to workers’ compensation
administrative claims. Indeed, we cannot locate any workers’ compensation precedent in
our state which applied West Virginia Code § 56-6-31(b) to an award for permanent partial
disability benefits or other workers’ compensation claims. Moreover, the Legislature did
not include additional language in West Virginia Code § 23-4-16a that would entitle a
claimant to interest on permanent partial disability arrearage payments. Applying
principles of statutory construction, we presume the Legislature intentionally excluded
other forms of interest not described in West Virginia Code § 23-4-16a. “In the
interpretation of statutory provisions the familiar maxim expressio unius est exclusio
alterius, the express mention of one thing implies the exclusion of another, applies.”
Ratcliff v. State Comp. Com’r, 146 W. Va. 920, 925, 123 S.E.2d 829, 831 (1962). If the
Legislature intended interest to be paid for permanent partial disability arrearage, it would
have included language in West Virginia Code § 23-4-16a permitting such payments. In
short, West Virginia Code § 56-6-31 is inapplicable to workers’ compensation claims.
11
CONCLUSION
Accordingly, we reverse the BOR’s June 12, 2024, order and remand Mr. Dorsey’s
claim for further proceedings consistent with this Court’s decision. Mr. Adkins’ appeal is
dismissed as moot.
Reversed, in part, and Remanded.
ISSUED: May 22, 2025
CONCURRED IN BY:
Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White
12