PER CURIAM:
In this appeal, Appellant Donna McKneely seeks reversal of an order entered July 31, 2009, in the Circuit Court of Kanawha County, which affirmed a final decision of the West Virginia Consolidated Public Retirement Board ("Board"), denying her so-called "duty-related" partial disability retirement benefits under W.Va.Code § 15-2-29 (2000)(Repl.Vol.2004). Instead, the Board awarded Appellant "non-duty" disability retirement benefits pursuant to W.Va.Code § 15-2-30 (1994)(Repl. Vol.2004). Our task is to determine whether Appellant is entitled to a partial disability retirement benefits award under the provisions of W.Va.Code § 15-2-29.
Upon careful consideration of the petition for appeal, the briefs and arguments of counsel and the applicable legal authority, and for the reasons discussed below, we reverse the order of the circuit court.
On June 28, 1999, Appellant had been an active member of the West Virginia State Police ("State Police") for more than eight years. On that date, she, along with other members of the State Police, sat for a promotion examination (also referred to as "sergeant's exam") at the State Police Academy. It is undisputed that, during a break in the examination, Appellant slipped and fell on a newly-waxed floor as she was walking across it, injuring her back, neck and spine. Thereafter, Appellant worked on and off in her capacity as a member of the State Police until, in January 2001, the injury forced her to seek a partial disability retirement award under the West Virginia State Police Death, Disability and Retirement Fund ("Plan A").
Appellant applied for "duty related" partial disability retirement benefits under W.Va Code § 15-2-29.
(Emphasis added)
By letter from the Board dated January 24, 2001, Appellant was advised that she had been granted a "non-duty disability" award.
Appellant did not file an administrative appeal of the Board's decision; however, on or about September 9, 2005, through a lay representative, she requested that her partial disability retirement award be changed from "non-duty" to "duty-related" status. By letter dated September 22, 2005, the Board denied Appellant's request, determining that Appellant "is not eligible for partial duty related disability benefits as she is already in retirement status and is no longer an active participant of Plan A."
Appellant requested an appeal hearing and, on August 17, 2006, the matter was heard before Hearing Officer Jack W. DeBolt. Appellant testified that, prior to the June 28, 1999, examination date, she received a written "order" from her superiors which required her to sit for the sergeant's exam on the scheduled date.
Appellant further testified that although she and other members of the State Police were not compensated for their time spent participating in the examination on June 28, 1999, that policy was subsequently changed. According to Appellant, currently, members of the State Police are paid for participating in promotion examinations. Appellant's testimony in this regard was not disputed by the Board.
As indicated above, Appellant was injured when she slipped and fell during a break in the examination and, although she attempted to return to her employment at the State Police — working on and off there following the injury — she eventually applied for duty-related partial disability retirement benefits under W.Va Code § 15-2-29.
In a Recommended Decision of Hearing Officer, dated April 10, 2007, it was recommended that Appellant's request to change her partial non-duty disability retirement award to a duty-related award be denied. In support thereof, the recommended decision relied on a February 26, 1999, letter from Captain Charles Bedwell, Promotional Standards Officer,
On or about May 23, 2007, the Board adopted the recommended decision as its final order, thereby denying Appellant's appeal. Thereafter, Appellant appealed the Board's order to the Circuit Court of Kanawha County. In an order entered July 31, 2009, the circuit court affirmed the final order of the Board. The court's order recognized that, under W.Va.Code § 15-2-29, Appellant would qualify for duty-related benefits if the following two prongs are met: "First, the beneficiary must have been injured as a result of an occupational risk or hazard inherent in or peculiar to the services required of members of the division. Secondly, the injuries must be incurred pursuant to or while such member was or
The circuit court determined that "whether a slip and fall is an occupational risk or hazard inherent in or peculiar to the services of a State Trooper is inconsequential[,]" and that "such a determination [is] unnecessary because [Appellant] does not qualify for benefits under the second prong." Relying on the aforementioned February 26, 1999, letter from Captain Bedwell to Appellant, the court concluded that Appellant's "participation in the examination for promotion was voluntary, not compensated and occurred while she was not on duty. The [Appellant's] failure to sit for the exam would only result in her forgoing the promotional cycle; participation or non-participation in the exam had no adverse affect [sic] on her present working conditions or the continuance of her employment as a State Trooper."
It is from the circuit court's July 31, 2009, order that Appellant now appeals.
Appellant contends that the circuit court erred in affirming the final order of the Board, which denied her request to change her non-duty partial disability retirement benefits to duty-related partial disability retirement benefits. In considering her appeal, this Court applies the same standard of review that the circuit court applied to the Board's administrative decision. We held in syllabus point one of Black v. State Consol. Public Retirement Bd., 202 W.Va. 511, 512, 505 S.E.2d 430, 431 (1998) that
Furthermore, in syllabus point two of Black, we declared that
202 W.Va. at 513, 505 S.E.2d at 432.
The sole issue in this appeal is whether Appellant is entitled to duty-related partial disability retirement benefits under W.Va. Code § 15-2-29, which provides for such benefits for injuries "resulting from any occupational risk or hazard inherent in or peculiar to the services required of members of the [State Police] and incurred pursuant to or while such member was or shall be engaged in the performance of his or her duties as a member of the [State Police]." Appellant argues that the two requirements set forth in W.Va.Code § 15-2-29 are satisfied because her injury (1) resulted from an occupational hazard peculiar to the services required of members of the State Police, and (2) was incurred pursuant to the performance of her duties as a member of the State Police.
In considering the applicability of W.Va.Code § 15-2-29 to the particular facts of this case, we are mindful that the relevant statutory language is broadly worded and is not otherwise defined in the statute. Thus, as we held in syllabus point four of Bluestone Paving, Inc. v. Tax Commissioner, 214 W.Va. 684,
The first requirement that must be satisfied under W.Va.Code § 15-2-29 is that Appellant's injury must have "result[ed] from any occupational risk or hazard inherent in or peculiar to the services required of members of the [State Police]." (Emphasis added) It is Appellant's contention that her injuries resulting from the fall at the State Police Academy during the course of her participation in a promotional examination resulted from an occupational hazard
As indicated above, the relevant statutory language in W.Va.Code § 15-2-29 is not defined therein. Thus, this Court must give the words used in the statute their common, ordinary and accepted meaning. Ohio Cellular, 198 W.Va. at 421, 481 S.E.2d at 727. First, the statute uses the word "any" to modify "occupational risk or hazard." The use of "any" to describe from what occupational risk or hazard an injury (or illness or disease) may result is widely encompassing, clearly indicating that the statute applies to more than injuries received exclusively "in the line of duty."
Because Appellant contends her injury resulted from an "occupational . . . hazard . . . peculiar to the services required of members of the [State Police]," W.Va.Code
Having ascertained the common, ordinary and accepted meanings of the words and phrases used in the first requirement of W.Va.Code § 15-2-29, we must now determine whether this first requirement is satisfied under the facts presented herein. It is undisputed that participation in the sergeant's exam by Appellant and other members of the State Police is a prerequisite to promotion to the rank of sergeant. Indeed, sometime prior to the June 28, 1999, examination date, Appellant became eligible to participate in the exam. According to Appellant's testimony, when she contacted her superior to request that she be permitted to reschedule her attendance on the assigned examination date because she had just had a baby, her request was denied. Thus, Appellant testified that she participated in the sergeant's exam on that date because her superior denied her request to reschedule the exam and because she wished to be considered for promotion to sergeant. She further testified that if she successfully completed the exam, she would receive a corresponding and substantial increase in pay. Appellant's testimony in this regard was not disputed by the Board. As indicated above, it was during this examination at the State Police Academy that Appellant was injured when she slipped and fell on a newly-waxed floor. Clearly, only members of the State Police who were qualified and therefore eligible to participate in the exam and who wished to be considered for promotion to the rank of sergeant appeared at the State Police Academy on June 28, 1999, for the purpose of participating in the sergeant's exam. Under the facts presented herein, Appellant's injury resulted from an occupational hazard peculiar to the services required of her as a member of the State Police. Thus, the first requirement of W.Va.Code § 15-2-29 is satisfied.
The second requirement that must be satisfied under W.Va.Code § 15-2-29 is that Appellant's injury must have been incurred pursuant to or while she was engaged in the performance of her duties as a member of the State Police. Appellant argues that when she slipped and fell at the State Police Academy during her participation in the sergeant's exam, her resulting injury was incurred pursuant to the performance of her duties as a member of the State Police. We find this second requirement to be satisfied.
Clearly, Appellant's injury occurring at the State Police Academy during her participation in the sergeant's exam on June 28, 1999, was incurred pursuant to the performance of her duties as a member of the State Police. Accordingly, the second requirement of W.Va.Code § 15-2-29 is satisfied.
As discussed above, this Court is of the opinion that the facts of this case satisfy both of the foregoing requirements of W.Va. Code § 15-2-29.
Based upon the foregoing, the July 31, 2009, order of the Circuit Court of Kanawha County, is hereby reversed.
Reversed.
In Appellant's case, although her physician, Gyanesh Agrawal, M.D., opined that Appellant's injury resulted from an occupational risk or hazard inherent in and peculiar to the services required of a State Trooper, the physician selected by the Board, Paul. K. Forberg, M.D., disagreed.