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No. 27831- Robert S. Rhodes v. Workers' Compensation Division and Anchor Glass Container

FILED
January 26, 2001
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

RELEASED
January 26, 2001
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

Scott, J., concurring:

In a continuing trend by some members of this Court to politicize the nature of the judicial process to the ultimate detriment of the citizens and the State, the dissenting opinion advances a position in this case that would literally bankrupt the fund earmarked for occupational pneumoconiosis (OP) claims. I am dismayed by the dissenting opinion's distortion of the applicable law. As I more fully outline below, the majority decision in this case simply provides a judicial rule to bolster a procedure that employees and employers have consistently followed in Workers' Compensation litigation. It does not add any real burden to any party.

I. OP Claims Procedure The majority opinion correctly notes that when an OP claim is made, the Workers' Compensation Division (Division) must submit the claim to the Occupational Pneumoconiosis Board (OP Board). The OP Board is then charged with making a determination regarding the claim. The OP Board submits its findings and conclusions to the Division. The Division is thereafter required to make its determination of the claim based upon the OP Board's report. See W. Va. Code

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West Virginia Law