DAVIS, Chief Justice:
The instant proceeding consists of two consolidated appeals, both of which present the same issue for this Court's resolution: is an injured worker entitled to receive temporary total disability workers' compensation benefits (hereinafter referred to as "TTD benefits")
Although both of the appeals in this case present the same legal issue, we separately will consider the facts giving rise to each claimant's request for TTD benefits.
On May 30, 2000, Charles W. Bevins (hereinafter referred to as "Mr. Bevins"), a coal miner, injured his back in the course of and as a result of his employment when he attempted to move a loaded wheelbarrow. While treating his back injury, Mr. Bevins' physician discovered that Mr. Bevins also had sustained an injury to his ankle, causing his foot to drop. For this condition, Mr. Bevins underwent two surgeries, the most recent of which was on November 27, 2007. On December 10, 2007, Mr. Bevins filed an application to reopen his workers' compensation claim for the purpose of receiving TTD benefits. On his reopening application, Mr. Bevins did not indicate that he had retired; rather, he left both the "yes" and the "no" boxes next to the retirement question blank. However, Mr. Bevins did state on his application that "I'm receiving Social Security Disability Insurance[;] I no longer work due to this injury." By this application, Mr. Bevins sought TTD benefits for the period from November 27, 2007, to February 27, 2008. At the time he submitted this application, Mr. Bevins was fifty-one years old.
By decision dated March 10, 2008, the Workers' Compensation Claims Manager (hereinafter referred to as "Claims Manager") ruled that Mr. Bevins' claim could not be reopened, explaining:
Thus, the Claims Manager determined that Mr. Bevins was not entitled to receive TTD benefits.
Mr. Bevins appealed this determination. By decision dated October 27, 2008, the Workers' Compensation Office of Judges (hereinafter referred to as "OOJ") awarded Mr. Bevins TTD benefits, thus reversing the earlier determination. In summary, the OOJ stated that "[t]he claimaint [Mr. Bevins] is not disqualified from temporary total disability benefits due to the sole reason that he is receiving Social Security Disability benefits." This ruling was based upon the OOJ's observations that Mr. Bevins is "52 years old" and that "[t]he preponderance of the evidence shows that the claimant has not retired." Therefore, the OOJ awarded Mr. Bevins the TTD benefits he had requested.
Thereafter, the Commissioner appealed the OOJ's decision to the Board of Review. By order entered June 4, 2009, the Board of Review reversed the OOJ's decision, thus denying Mr. Bevins' application for TTD benefits. In this regard, the Board of Review determined that TTD benefits serve as a wage replacement. Thus, because Mr. Bevins is receiving Social Security disability benefits and "has not returned to work since the May 30, 2000[,] injury in this claim," Mr. Bevins "has no wages to replace and is, therefore, not entitled to reopening on a temporary total disability basis or temporary total disability benefits[.]" From this adverse
On December 17, 2003, Marty L. Greathouse (hereinafter referred to as "Mr. Greathouse"), a security guard, injured his arm, neck, and shoulder in the course of and as a result of his employment when a fellow employee pushed him into some office equipment. Mr. Greathouse received treatment for his injuries and ultimately received a six percent permanent partial disability award therefor. Following his maximum degree of medical improvement evaluation on February 28, 2005, however, Mr. Greathouse allegedly experienced an aggravation or progression of his work-related injury. Therefore, on August 16, 2006, Mr. Greathouse filed an application to reopen his workers' compensation claim for the purpose of receiving TTD benefits. On his reopening application, Mr. Greathouse indicated that he had retired and stated that he was receiving benefits from "Social Security." By this application, Mr. Greathouse sought TTD benefits for the period from June 26, 2006, to October 1, 2006. At the time he submitted this application, Mr. Greathouse was forty-one years old.
By decision dated September 25, 2006, the Claims Manager ruled that Mr. Greathouse's claim could not be reopened, explaining:
Thus, the Claims Manager determined that Mr. Greathouse was not entitled to receive TTD benefits.
Mr. Greathouse appealed this determination. By decision dated March 29, 2007, the Office of Judges awarded Mr. Greathouse TTD benefits, thus reversing the earlier determination. In summary, the OOJ stated that "[t]he claimaint [Mr. Greathouse] is entitled to additional temporary total disability benefits. The claimant's treating physician has demonstrated that the claimant has suffered a progression or aggravation of his compensable condition." This ruling was based upon the OOJ's observations that Mr. Greathouse was "approved for Social Security Disability benefits and not retirement benefits [and] that the claimant is only 41 years of age." The OOJ further explained that
Therefore, the OOJ awarded Mr. Greathouse the TTD benefits he had requested.
Thereafter, the Commissioner appealed the OOJ's decision to the Board of Review. By order entered March 5, 2008, the Board of Review reversed the OOJ's decision, thus denying Mr. Greathouse's application for TTD benefits. In this regard, the Board of Review ruled that
From this adverse ruling, Mr. Greathouse appeals to this Court.
Governing our review of both Mr. Bevins' and Mr. Greathouse's appeals is the
We have interpreted the scope of our review to mean that "[w]hen it appears from the proof upon which the Workmen's 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. 5, Bragg v. State Workmen's Comp. Comm'r, 152 W.Va. 706, 166 S.E.2d 162 (1969).
We now will consider the errors assigned by the parties in light of this standard.
Both of the consolidated cases on appeal to this Court present the same issue for our resolution: can a claimant, who is receiving Social Security disability benefits in connection with the claimant's compensable injury, also receive temporary total disability workers' compensation benefits as a result of an aggravation or progression of the same compensable injury? In both of the cases presently before us, the claimant sustained a compensable injury that prevented him from returning to work, and, as a result, the claimant applied for and received Social Security disability benefits. Subsequently, the claimant sustained an aggravation or progression of his compensable injury and filed an application for reopening to request TTD benefits therefor. The Claims Manager denied each claimant's request for TTD benefits; the Office of Judges granted each claimant the TTD benefits he had requested; and the Board of Review reversed each award, thereby denying the claimants TTD benefits.
On appeal to this Court, Mr. Bevins argues that the Board of Review erred by ruling that his receipt of Social Security Disability benefits precludes him from receiving an award of TTD benefits. In this regard, Mr. Bevins claims that the provision upon which the Claims Manager denied reopening, W. Va.C.S.R. § 85-1-5.2 (2009),
Similarly, Mr. Greathouse argues that the Board of Review erred by ruling that his receipt of Social Security Disability benefits precludes him from receiving an award of TTD benefits. In this regard, Mr. Greathouse asserts that he testified that he "sought Social Security Disability on a temporary basis until he could medically recover and return to work." Insofar as he has established a progression or aggravation of his compensable injury, Mr. Greathouse contends that he is entitled to an award of TTD benefits.
In both cases, the Commissioner responds that the claimants are not entitled to TTD benefits because they are receiving Social Security Disability benefits. In this regard, the Commissioner contends that, "[b]y receiving Social Security Disability benefits, the claimant[s] ha[ve] voluntarily removed [themselves] from the workforce and therefore ha[ve] no wages to replace." The Commissioner further argues that TTD benefits are intended to serve as a form of wage replacement for workers who are injured in the workplace and who, as a result of those injuries, are prevented from returning thereto. Thus, the Commissioner urges that "[i]f the claimant[s] ha[ve] applied for and [are] receiving Social Security Disability benefits, [they] could not be working for the employer, or any employer, and [they] therefore would not receive compensation." Consequently, the Commissioner contends, the claimants are not eligible to receive TTD benefits, which serve to replace wages lost as a result of a compensable injury, because they have no lost wages to replace.
Before reaching the specific issue presented by these consolidated appeals, it is instructive to review the statutory and case law governing TTD benefits and reopening applications, generally. We previously have explained that "[t]emporary total disability," for which TTD benefits may be awarded, "is an inability to return to substantial gainful employment requiring skills or activities comparable to those of one's previous gainful employment during the healing or recovery period after injury." Syl. pt. 1, Allen v. Workers' Comp. Comm'r, 173 W.Va. 238, 314 S.E.2d 401 (1984). Typically, TTD benefits are awarded to compensate an injured worker immediately following his/her compensable injury. The governing rules further clarify that,
W. Va.C.S.R. § 85-1-5.1 (2009).
Once a claimant has received a TTD award, "[t]he claimant's entitlement to temporary
Apart from receiving TTD benefits at the time of the compensable injury, a claimant whose claim has been closed may later request that his/her claim be reopened for an award of additional TTD benefits if he/she has incurred a progression or aggravation
Syl. pt. 4, Wilson v. Workers' Comp. Comm'r, 174 W.Va. 611, 328 S.E.2d 485 (1984). Therefore,
Syl., Harper v. State Workmen's Comp. Comm'r, 160 W.Va. 364, 234 S.E.2d 779 (1977) (footnotes added). See also W. Va. Code § 23-5-3 (2009) (Repl.Vol.2010)
Regardless of whether the claimant has received TTD benefits at the time of the compensable injury or later through an application for reopening, though, the maximum amount of TTD benefits a claimant may receive for a compensable injury is fixed and set by statute. See W. Va.Code § 23-4-6(b-c) (2005) (Repl.Vol.2010).
In this regard, the Legislature has precisely identified certain instances in spite of which a claimant nevertheless may receive workers' compensation benefits. See, e.g., W. Va.Code § 23-4-2(c) (2005) (Repl.Vol. 2010) (allowing injured worker to receive workers' compensation benefits when compensable injury was caused by employer's intentional act); W. Va.Code § 23-4-6c (1995) (Repl.Vol.2010) (extending workers' compensation coverage to sheltered workshop employees); W. Va.Code § 23-4-6d (2003) (Repl.Vol.2010) (permitting part-time employees to receive workers' compensation benefits); W. Va.Code § 23-4-15a (2005) (Repl.Vol.2010) (recognizing nonresident aliens among beneficiaries of workers' compensation benefits); W. Va.C.S.R. § 85-1-5.2 (lifting bar to receipt of workers' compensation benefits imposed upon retired employees for employees who retired because their compensable injuries prevented them from returning to work). See also W. Va.Code § 23-4-6(l) (stating that TTD benefits are not deductible from PPD award).
By contrast, the Legislature has decided that other scenarios expressly preclude an injured employee from receiving workers' compensation benefits. See, e.g., W. Va.Code § 23-4-1e (2005) (Repl.Vol.2010) (precluding receipt of workers' compensation benefits during periods of confinement); W. Va.Code § 23-4-1f (1993) (Repl.Vol.2010) (abolishing mental-mental claims); W. Va.Code § 23-4-2(a) (denying workers' compensation benefits to employee whose work-related injury was self-inflicted or sustained while the employee was intoxicated); W. Va.Code § 23-4-9b (2003) (Repl.Vol.2010) (refusing to consider preexisting conditions in computation of workers' compensation benefits); W. Va. C.S.R. § 85-1-5.2 (barring most retired employees, including those receiving Social Security retirement benefits, from receiving workers' compensation benefits); W. Va. C.S.R. § 85-1-5.3 (2009) (prohibiting seasonal workers from receiving workers' compensation benefits during their scheduled absences from work). See also W. Va.Code § 23-4-5 (2003) (Repl.Vol.2010) (determining claimant whose "period of disability does not last longer than three days" to be ineligible to receive TTD benefits).
Conspicuously missing from any of these categories, however, is the answer to the question squarely before us: "Does an award of Social Security disability benefits preclude a claimant's entitlement to receive temporary total disability workers' compensation benefits for the same compensable injury?" Absent a definite statement from the Legislature on this point, we are left to believe the answer is a resounding "No." Because workers' compensation is solely a creature of statute, the rules of statutory construction provide support for this conclusion in those scenarios for which the Legislature has provided specific guidance.
In matters of statutory interpretation, this Court must presume that the Legislature knows what it has said in its prior enactments and that it means what it has said therein. Martin v. Randolph Cnty. Bd. of Educ., 195 W.Va. 297, 312, 465 S.E.2d 399, 414 (1995) ("`Courts must presume that a legislature says in a statute what it means and means in a statute what it says there.'" (quoting Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992))). As such, "[i]t is not the province of the courts to make or supervise legislation, and a statute may not, under the guise of interpretation, be modified, revised, amended, distorted, remodeled or rewritten." State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 145, 107 S.E.2d 353, 358 (1959) (citation omitted). Thus, "[i]f the language of an enactment is clear and within the constitutional authority of the lawmaking body which passed it, courts must read the relevant law according to its unvarnished meaning, without any judicial embroidery." Syl. pt. 3, in part, West Virginia Health Care Cost Review Auth. v. Boone Mem'l Hosp., 196 W.Va. 326, 472 S.E.2d 411 (1996). In other words, this Court is "obliged not to add to statutes something the Legislature purposefully omitted." Banker v. Banker, 196 W.Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996) (citations omitted).
Here, the Legislature specifically has enumerated certain instances in which a claimant can and cannot receive workers' compensation benefits. By expressly including conditions which would render a claimant ineligible from receiving workers' compensation benefits, the Legislature has implicitly excluded all others. That is to say, "`[i]nclusio unius est exclusio alterius,' the expression that `one is the exclusion of the others,' has force in this case. This doctrine informs courts to exclude from operation those items not included in the list of elements that are given effect expressly by statutory language." State ex rel. Roy Allen S. v. Stone, 196 W.Va. 624, 630 n. 11, 474 S.E.2d 554, 560 n. 11 (1996). Cf. Johnson v. Continental Cas. Co., 157 W.Va. 572, 578, 201 S.E.2d 292, 296 (1973) ("[T]he exclusion of one subject or thing in a statute is the inclusion of all others." (citations omitted)). When faced with similar statutory lists of included and excluded items, we have construed the items specified by the Legislature to constitute the boundaries, or outer limits, of its legislative classification. See, e.g., Collins v. AAA Homebuilders, Inc., 175 W.Va. 427, 429, 333 S.E.2d 792, 794 (1985) (observing that, because list of prohibited reasons for refusal to rent "does not include ... criminal convictions, ... the rule of construction expressed by the Latin, inclusio unius est exclusio alterius (the certain designation of one precludes the implication of another) leads us to the conclusion that the legislature did not intend to include any additional categories"). See also State ex rel. Baker v. Bolyard, 221 W.Va. 713, 719, 656 S.E.2d 464, 470 (2007) (Starcher, J., dissenting) (applying "inclusio unius est exclusio alterius" to conclude that, "by specifically including those convictions that result from pleas of guilty, the Legislature thereby means to exclude convictions resulting from pleas of nolo
Applying these rules of statutory construction to the legislation before us, we are left with the definite and firm conviction that the Legislature has not barred claimants, such as those before us, from receiving the relief they seek in this case choosing, instead, to remain silent on the matter. Accordingly, we hold that a claimant simultaneously may receive temporary total disability workers' compensation benefits while also receiving Social Security disability benefits for the same compensable injury. However, before a claimant may be awarded such temporary total disability workers' compensation benefits, he/she must be eligible to receive such an award based upon a progression or aggravation of his/her compensable injury or other medical evidence indicating such an award would be warranted as contemplated by W. Va.Code § 23-4-1c(b-c) (2009) (Repl.Vol. 2010), W. Va.Code § 23-4-1c(e) (2009) (Repl. Vol.2010), and W. Va.Code § 23-4-16(b) (2005) (Repl.Vol.2010).
As alluded to during the course of these proceedings, there exists a valid concern that claimants who are permitted to receive both TTD and Social Security disability benefits ultimately may receive more in benefits than they would have earned had they been employed; such a duplication of benefits is often referred to as a double recovery or "double dipping." See, e.g., U.S. West Commc'ns, Inc. v. Industrial Claim Appeals Office of State of Colorado, 978 P.2d 154, 156 (Colo.App.1999). Many jurisdictions have adopted statutes to adjust a claimant's workers' compensation award to account for his/her receipt of Social Security disability benefits. See, e.g., Frost v. Chater, 952 F.Supp. 659 (D.N.D.1996); Cody v. Industrial Claim Appeals Office of State of Colorado, 940 P.2d 1042 (Colo.App.1996); Sonnier v. Town of Vinton, 759 So.2d 818 (La.Ct.App. 1999). West Virginia has not done so.
Manchester v. Drivers Mgmt., LLC, 278 Neb. 776, 785-86, 775 N.W.2d 179, 186-87 (2009) (footnote added). But see Richardson v. Belcher, 404 U.S. 78, 94, 92 S.Ct. 254, 263, 30 L.Ed.2d 231 (1971) (Marshall, J., dissenting) ("However federal benefits may not be reduced if the workmen's compensation plan provides for a reduction of its benefits in the event of an overlap." (citation omitted)); Frost, 952 F.Supp. at 662 ("The [Social Security] Act does not allow the Commissioner to take an offset if the workers' compensation award already offset Social Security." (footnote omitted)). It goes without saying that the very fact that both state and federal offset provisions exist provides further support for our above-stated holding which finds that a claimant simultaneously may receive TTD and Social Security disability benefits.
The net effect of the federal offset legislation is to "limit[ ] total state and federal benefits to 80% of the employee's average earnings prior to the disability, reduce[ ] the duplication inherent in the [state workers' compensation and federal Social Security disability] programs and at the same time allow[ ] a supplement to workmen's compensation where the state payments were inadequate." Richardson v. Belcher, 404 U.S. at 83, 92 S.Ct. at 258, 30 L.Ed.2d 231. In other words,
Frost v. Chater, 952 F.Supp. at 661-62 (footnotes omitted).
Thus, despite the lack of an offset provision in this State's workers' compensation statutes that applies when a claimant is receiving both state workers' compensation benefits and federal Social Security disability benefits, these federal provisions will operate to preclude either Mr. Bevins or Mr. Greathouse from receiving an impermissible double recovery. Therefore, we hold that when a claimant simultaneously receives temporary total disability workers' compensation benefits while also receiving Social Security disability benefits for the same compensable injury, the federal offset provisions set forth in 42 U.S.C. § 424a (1994) (2006 ed.) operate to preclude the claimant from receiving an impermissible double recovery of benefits.
Applying these holdings to the facts of the cases sub judice, it is evident that the Board of Review erred by refusing the reopening applications of Mr. Bevins and Mr. Greathouse, wherein they sought TTD benefits, solely because they already were receiving Social Security disability benefits. Accordingly, the Board's decisions in both cases are reversed.
With respect to Mr. Bevins' reopening application in Case Number 35548, we find that he has sufficiently demonstrated his medical eligibility for additional TTD benefits insofar as his request for benefits coincides with his convalescence from his most recent surgery required by his compensable injury. Therefore, we remand Mr. Bevins' case for entry of an order awarding him the TTD benefits he has requested, with such benefits not to exceed the maximum allowable by statute.
As for Mr. Greathouse's reopening application in Case Number 35219, we are not convinced that the evidence he has presented in connection therewith sufficiently demonstrates his medical eligibility for additional TTD benefits. Thus, we remand Mr. Greathouse's case for further factual development to determine whether he has, in fact, sustained a progression or aggravation of his compensable injury so as to warrant the award of TTD benefits he has requested.
For the foregoing reasons, the Workers' Compensation Board of Review order of June 4, 2009, in Case Number 35548, pertaining to Mr. Bevins, is hereby reversed and remanded for entry of an order awarding Mr. Bevins TTD benefits in connection with his November 27, 2007, surgery related to his compensable injury. Moreover, the Workers' Compensation Board of Review order of March 5, 2008, in Case Number 35219, pertaining to Mr. Greathouse, also is hereby reversed and remanded for further factual development to determine whether Mr. Greathouse is entitled to receive the TTD benefits he has requested.
Case Number 35548-Reversed and Remanded.
Case Number 35219-Reversed and Remanded.
20 C.F.R. § 404.1505(a) (2003) (Revised Vol. 2010).
(Emphasis added). Despite the great reliance placed upon this regulation in the initial denial of Mr. Bevins' reopening application, we find that this provision is not determinative of the issue before us because it does not speak directly to the receipt of Social Security disability benefits. See Section III., infra.
Because the differences in the applicable language between the former and the current versions of W. Va.Code § 23-4-1c are merely stylistic changes, this opinion will cite to the current, 2009, version of § 23-4-1c. Compare W. Va. Code § 23-4-1c (2005) (Repl.Vol.2005) with W. Va.Code § 23-4-1c (2009) (Repl.Vol.2010).
In all cases, a finding by the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, that the claimant has reached his or her maximum degree of improvement terminates the claimant's entitlement to temporary total disability benefits regardless of whether the claimant has been released to return to work. Under no circumstances shall a claimant be entitled to receive temporary total disability benefits either beyond the date the claimant is released to return to work or beyond the date he or she actually returns to work. . . .
See supra note 6.
W. Va.Code § 23-4-1c(j) (2009) (Repl.Vol.2010). See supra note 6. Cf. W. Va.Code § 23-4-1c(h) (describing procedure for recovery from claimant of overpayment of temporary total disability benefits); Syl. pt. 4, Mitchell v. State Workmen's Comp. Comm'r, 163 W.Va. 107, 256 S.E.2d 1 (1979) ("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.").
Accord 20 C.F.R. § 404.408 (1997) (Revised Vol. 2010) (same). See also Virginia Reno, Cecili Thompson Williams, & Ishita Sengupta, Workers' Compensation, Social Security Disability Insurance, and the Offset: A Fact Sheet, Soc. Sec. Bull. vol. 65, no. 4, 2003/2004, available at http:// www.ssa.gov/policy/docs/ssb/v65n4/v65n4p3.html (last modified Aug. 19, 2010) (discussing differences between state workers' compensation benefits and federal social security disability benefits; also explaining offset).
