No. 13-0875 – Sheena H. for Russell H. v. Amfire, LLC

                                                                              FILED
                                                                            April 10, 2015

                                                                        RORY L. PERRY II, CLERK

                                                                      SUPREME COURT OF APPEALS

                                                                          OF WEST VIRGINIA


Workman, Chief Justice, concurring, with Davis, Justice, joining:



              I fully agree with the decision reached by the majority in this case to reverse

and remand the Workers’ Compensation Board of Review’s decision and allow the claimant

to pursue dependent’s death benefits on behalf of her grandchild on remand. I write

separately, however, because the new law enunciated by the majority in syllabus five is far

too fact specific and needlessly restrictive regarding the tolling of the statute of limitations.

The majority recognizes that despite the lack of any exceptions to West Virginia Code § 23­

4-15(a), “[t]he legislative intent behind setting time limitations for claims under the Workers’

Compensation Act is two-fold. On the one hand, it protects employers from frivolous or

outdated claims, while on the other hand, it is intended to afford claimants sufficient

opportunity to investigate a claim before it is filed.” The majority then determines that to

find that the statute of limitations set forth in West Virginia Code § 23-4-15(a) “can never,

under any circumstances, be tolled is contrary to both these goals[,]” as well as is inconsistent

with other provisions of the Act. See W. Va. Code § 23-4-16(a)(3) (bars awards under the

Workers’ Compensation Act from being made more than two years after an employee’s death




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would be obsolete if the six-month statute of limitation in West Virginia Code § 23-4-15(a)

could never be tolled).

              Given the sound reasoning relied upon by the majority to support the

determination that the relevant statute of limitations can be tolled, it is unwise and

unnecessary to overly-restrict this recognition by limiting the general legal conclusion that

the statute of limitations can be tolled only when “the delay was due to the medical examiner

performing an autopsy.” The principles upon which the majority relies should be available

to other claims, not just to the unique facts of this case.




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