        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                January 2015 Term                      FILED
                                 _______________                   April 10, 2015
                                                                    released at 3:00 p.m.

                                                                  RORY L. PERRY II, CLERK

                                   No. 13-0875                  SUPREME COURT OF APPEALS

                                                                     OF WEST VIRGINIA
                                 _______________

   SHEENA H. FOR RUSSELL H., deceased, on behalf of the minor child, L.H.,

                             Petitioner


                                        v.

   WEST VIRGINIA OFFICE OF THE INSURANCE COMMISSIONER; and

                         AMFIRE, LLC.,

                          Respondents


       ____________________________________________________________

            Appeal from the Workers’ Compensation Board of Review

                             Claim No. 2009085340

                          Board of Review No. 2048239


                       REVERSED AND REMANDED

       ____________________________________________________________

                             Submitted: March 10, 2015

                                Filed: April 10, 2015


Stephen P. New, Esq.                         Robert J. Busse, Esq.
Amanda J. Taylor, Esq.                       Timothy E. Huffman, Esq.
Beckley, West Virginia                       Jackson Kelly PLLC
Counsel for the Petitioner                   Charleston, West Virginia
                                             Counsel for the Respondent
John H. Shumate, Jr., Esq.
Attorney at Law
Mount Hope, West Virginia
Guardian Ad Litem for L.H.



JUSTICE KETCHUM delivered the Opinion of the Court.
CHIEF JUSTICE WORKMAN concurs and reserves the right to file a concurring

opinion.


JUSTICE DAVIS concurs and reserves the right to file a concurring opinion.


JUSTICE BENJAMIN concurs and reserves the right to file a concurring opinion.


JUSTICE LOUGHRY concurs and reserves the right to file a concurring opinion.

                             SYLLABUS BY THE COURT



              1.     “The primary rule of statutory construction is to ascertain and give

effect to the intention of the Legislature.” Syl. Pt. 8, Vest v. Cobb, 138 W.Va. 660, 76

S.E.2d 885 (1953).

              2.     “It is the duty of a court to construe a statute according to its true

intent, and give to it such construction as will uphold the law and further justice. It is as

well the duty of a court to disregard a construction, though apparently warranted by the

literal sense of the words in a statute, when such construction would lead to injustice and

absurdity.” Syl. Pt. 2, Click v. Click, 98 W.Va. 419, 127 S.E.194 (1925).

              3.     “Where a particular construction of a statute would result in an

absurdity, some other reasonable construction, which will not produce such absurdity,

will be made.” Syl. Pt. 2, Newhart v. Pennybacker, 120 W.Va. 774, 200 S.E. 350 (1938).

              4.     “A statute should be so read and applied as to make it accord with

the spirit, purposes, and objects of the general system of law of which it is intended to

form a part[.]” Syl. Pt. 5, in part, State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908).

              5.     Where a claimant to dependent’s death benefits under the Workers’

Compensation Act delays filing a claim because the claimant was unaware, and could not

have learned through reasonable diligence, that the decedent’s cause of death was work-

related, and the delay was due to the medical examiner completing and making available

an autopsy report, the six-month time limitation on filing a claim in West Virginia Code §

23-4-15(a) [2010] is tolled until the claimant, through reasonable diligence, could have


                                              i
learned of the autopsy report finding that the decedent’s death was, in any material

degree, contributed to by an injury or disease that arose in the course of and resulting

from the decedent’s employment.




                                           ii
Justice Ketchum:


             Petitioner, Sheena H. (“Ms. H.”), on the behalf of her six-year-old

granddaughter (“L.H.”), appeals an order of the Workers’ Compensation Board of

Review, denying dependent’s death benefits for the death of L.H.’s father, Russell H.1

The Board of Review based its denial on Ms. H. not filing her application within six

months after Mr. H’s death.

             Ms. H. argues that there was no indication that the death of L.H.’s father

was work-related until eight months after his death, when the Chief Medical Examiner’s

autopsy report was completed and made available to her. She asserts that the time

limitation on applying for death benefits begins to run when she could have learned that

the death was work-related, not when the death occurred. Respondent (“the insurance

commissioner”) contends that the time limitation on applying for death benefits begins to

run on the date of the death and may never be tolled.

             We reverse and remand the Board of Review’s order. We find that the

Legislature did not intend to completely bar a claim for dependent’s death benefits when,

due to the medical examiner’s delay in preparing an autopsy report, there was no

indication that an employee’s death was work-related until eight months after the death.

Furthermore, Ms. H. was a proper party to file a claim for dependent’s death benefits


             1
                Because L.H. is a minor, we follow our traditional practice in cases
involving sensitive facts and use only her initials. See Shelby J.S. v. George L.H., 181
W.Va. 154, 155 n.1 381 S.E.2d 269, 270 n.1 (1989). See also W.VA. R.APP. P. 40(e)(1).


                                            1

under West Virginia Code § 23-4-15(a) [2010] on L.H.’s behalf. The Board of Review

erred in finding otherwise.

                                  I.

                 FACTUAL AND PROCEDURAL BACKGROUND



              On December 7, 2010, Russell H., a twenty-four-year-old coal miner, died

in his sleep from a seizure. He left behind his mother, Ms. H., who is the petitioner, and

a now six-year-old daughter, L.H., on whose behalf Ms. H. petitions this Court. L.H.’s

mother (who never married Mr. H.) is not a party to this proceeding.

              Mr. H. suffered a work-related injury on March 24, 2009, when a wrench

fell from a coal mine’s ceiling and hit him on the head. The injury left him unconscious

for one minute and resulted in a golf-ball-size knot on his head. Even though he was

transported to the local hospital, neither he, his employer, nor his treating physicians

recognized the magnitude of Mr. H’s injury. He did not stay in the hospital overnight.

Rather, his treating physicians prescribed him pain medication and told him to return to

the walk-in clinic for a follow up visit if he deemed it necessary. He did not seek

additional medical treatment for this injury or for health-related issues arising out of the

injury. Mr. H. returned to work a couple of days later, and in May 2009, his claim for

temporary total disability benefits was closed because he was off work for less than three

days.

              Twenty-one months later (on December 7, 2010), Mr. H. died in his sleep.

The Office of the Chief Medical Examiner performed an autopsy on Mr. H. the following

day, December 8, 2010. However, for unknown reasons, the autopsy report was not

                                             2

completed and made available to Mr. H’s family until August 24, 2011 (more than eight

months after his death). The autopsy report declared that Mr. H’s 2010 death was the

result of a traumatic seizure disorder that stemmed from the 2009 work-related injury. It

stated: “[Mr. H.] died as a result of a seizure while sleeping; in the setting of a traumatic

seizure disorder following a remote head injury at work[.] . . . [T]he manner of death is

best certified as accident.” (Emphasis added). The autopsy report did not establish when

Mr. H. began to suffer from the seizure disorder. His death certificate was then amended

to reflect that his cause of death was a “seizure” as a consequence of “traumatic seizure

disorder.”

              There is conflicting evidence as to whether the family knew at the time of

the death that Mr. H. (who lived alone) suffered from seizures. The Chief Medical

Examiner stated in the autopsy report that Mr. H’s family “reported witnessed seizure

activity.” By contrast, Ms. H. responded to an interrogatory that the family did not know

he suffered from seizures. What is clear, however, is that there was no medical evidence

at that time which linked Mr. H’s death to his work-related injury.

              Dependents of a deceased employee have six months to apply for death

benefits under the Workers’ Compensation Act.2 Ms. H. (on L.H.’s behalf) applied for

dependent’s death benefits on February 24, 2012, exactly six months after she received




              2
               See W.VA. CODE § 23-4-15(a). We discuss this statute in greater detail in
Section A of our Analysis.


                                             3

the autopsy report and amended death certificate indicating that Mr. H’s cause of death

stemmed from a work-related injury.

              On March 19, 2012, the employer’s claims administrator rejected the

application for benefits, finding: (1) it was filed more than six months after Mr. H’s

death; (2) Ms. H. was not the proper person to file the application on L.H.’s behalf

because she was not L.H.’s legal guardian; and (3) there was insufficient evidence to

establish that Mr. H’s work-related injury in March 2009 was a material contributing

factor to his death in December 2010. Ms. H. protested the decision, but the Workers’

Compensation Office of Judges affirmed the claims administrator on the ground that the

application was filed more than six months after Mr. H’s death.             The Workers’

Compensation Board of Review affirmed the Office of Judges.

              By order of this Court, the parties addressed whether Ms. H’s application

for dependent’s death benefits was timely and whether Ms. H. was a proper party to bring

a claim for dependent’s death benefits on L.H.’s behalf. This Court appointed a guardian

ad litem to represent L.H.’s interests.

                                        II.

                                STANDARD OF REVIEW



              When considering a question of law, we have held: “[w]here the issue on an

appeal from the circuit court is clearly a question of law or involving an interpretation of

a statute, we apply a de novo standard of review.” Syl. Pt. 1, Chrystal R.M. v. Charlie

A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Furthermore, we review de novo legal



                                             4

conclusions of the Workers’ Compensation Board of Review. Johnson v. W.Va. Office of

Ins. Comm’r., 226 W.Va. 650, 654, 704 S.E.2d 650, 654 (2010).

                                          III.

                                       ANALYSIS



             Dependents of a deceased employee have six months from the date of a

work-related death to apply for death benefits under the Workers’ Compensation Act.

The parties dispute two issues: (1) whether the time limitation for applying for death

benefits may be tolled until a claimant could have reasonably learned that the death was

work-related; and (2) whether Ms. H. (L.H.’s grandmother) is a proper party to apply for

dependent’s death benefits on L.H.’s behalf. We examine the parties’ arguments in turn.

               A. Statutory Deadline to Apply for Dependent’s Benefits

             In 1986, the Legislature adopted a six-month period in which claims may

be filed for workers’ compensation dependent’s death benefits. The pertinent statute

provides:

             To entitle any employee or dependent of a deceased employee
             to compensation under this chapter, other than for
             occupational pneumoconiosis or other occupational disease,
             the application for compensation shall be . . . [filed] within six
             months from and after the injury or death, as the case may be,
             and unless filed within the six months period, the right to
             compensation under this chapter is forever barred, such time
             limitation being hereby declared to be a condition of the right
             and hence jurisdictional[.]”

W.VA. CODE § 23-4-15(a) [2010] (emphasis added).

             Ms. H. argues that, despite the time limitation in West Virginia Code § 23­

4-15(a) being jurisdictional, there was no way of knowing that Mr. H’s death was work­

                                             5

related until the autopsy report was completed and made available. She argues this is a

narrow circumstance in which the time limitation for filing a claim may be tolled. The

insurance commissioner responds that West Virginia Code § 23-4-15(a) does not specify

an exception to its time limitation, and therefore, it may not be tolled under any

circumstances, even when there was no indication that the decedent’s death was work-

related until eight months after the death had passed.

              We have held that, “[t]he primary rule of statutory construction is to

ascertain and give effect to the intention of the Legislature.” Syl. Pt. 8, Vest v. Cobb, 138

W.Va. 660, 76 S.E.2d 885 (1953). “If the literal meaning of a statute is inconsistent with

the meaning or intent of the legislature, or would lead to perverse results, the words of the

statute must be interpreted to reflect the intention of the legislature.” Pryor v. Gainer,

177 W.Va. 218, 222, 351 S.E.2d 404, 408 (1986). See also Mitchell v. Broadnax, 208

W.Va. 36, 46, 537 S.E.2d 882, 892 (2000) (“Although a provision’s language may be

plain, there nevertheless may arise circumstances in which the plain language does not

speak completely on the subject to which it is addressed.”). In the same vein, we have

said:

              It is the duty of a court to construe a statute according to its
              true intent, and give to it such construction as will uphold the
              law and further justice. It is as well the duty of a court to
              disregard a construction, though apparently warranted by the
              literal sense of the words in a statute, when such construction
              would lead to injustice and absurdity.

Syl. Pt. 2, Click v. Click, 98 W.Va. 419, 127 S.E.194 (1925) (emphasis added). Likewise,

“[w]here a particular construction of a statute would result in an absurdity, some other


                                             6

reasonable construction, which will not produce such absurdity will be made.” Syl. Pt. 2,

Newhart v. Pennybacker, 120 W.Va. 774, 200 S.E. 350 (1938).

              Therefore, our inquiry does not end just because West Virginia Code § 23­

4-15(a) does not specify any exceptions to its time limitation that is “a condition

precedent and hence jurisdictional.”3 Rather, we read the statute so as to effectuate the

Legislature’s intent. In ascertaining the Legislature’s intent behind the time limitation in

West Virginia Code 23-4-15(a), we are guided by the spirit, purposes, and objects of the

general Workers’ Compensation Act. As we have often said: “[a] statute should be so

read and applied as to make it accord with the spirit, purposes, and objects of the general

system of law of which it is intended to form a part[.]” Syl. Pt. 5, in part, State v. Snyder,

64 W.Va. 659, 63 S.E. 385 (1908).

              The 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.

              As to the Legislature’s goal of protecting employers from frivolous or

outdated claims, we have stated, “[i]t is generally accepted that the purpose of time

              3
                 Similarly, in Miller v. Romero, 186 W.Va. 523, 413 S.E.2d 178 (1991)
(overruled on other grounds by Bradshaw v. Soulsby, 210 W.Va. 682, 558 S.E.2d 681
(2001)), we tolled a time limitation that was a “an integral part of the statute itself and
creates a condition precedent to . . . the bringing of an action” on grounds of defendant’s
fraudulent concealment of facts. Although Miller dealt with the Wrongful Death Act, the
fact that the time limitation was a “condition precedent” to the cause of action in that case
makes it analogous to this case.


                                               7

limitations in filing workers’ compensation claims is to provide notice and to enable the

employer to protect himself by prompt investigation and treatment of the injury.”

Holdren v. Workers’ Comp. Comm’r., 181 W.Va. 337, 339, 382 S.E.2d 51, 533 (1989)

(emphasis added).     Pursuant to this goal, the Legislature amended the Workers’

Compensation Act in 1986 to provide that the time limitations are “jurisdictional.” These

1986 amendments were in response to a prior decision by this Court in Bailey v. SWCC,

170 W.Va. 771, 296 S.E.2d 901 (1982), which held that the time limitations for workers’

compensation claims were procedural, not jurisdictional. Syl Pt. 1, Id., 170 W.Va. 771,

296 S.E.2d 901. Under Bailey, even when the claimant missed the deadline by years, the

delay in filing would be excused for a wide array of reasons, such as “innocent mistake,

excusable neglect, unavoidable cause, fraud, misrepresentation, or any other reason

justifying relief from the running of the time period.” Syl Pt. 2, Id., 170 W.Va. 771, 296

S.E.2d 901.    The 1986 amendments to the Workers’ Compensation Act effectively

overruled Bailey. See Syl. Pt. 2, Fucillo v. Workers’ Comp. Comm’r., 180 W.Va. 595,

378 S.E.2d 637 (1988).

              As to the Legislature’s goal of affording claimants sufficient time to

investigate and file claims, we have stated:

              [A] literal construction of the statute, which . . . would end
              the jurisdiction of the commissioner . . . eight days after the
              claimant asked that his case be reopened, would in many
              cases result in a lack of opportunity to properly investigate
              the claim. . . . Such a construction cannot reasonably be held
              to have been within the intent of the Legislature.
              Consideration of the merits of every claim, with reasonable
              time for investigation, must have been what was intended.


                                               8
Wilkins v. State Comp. Comm’r, 120 W.Va. 424, 429, 198 S.E. 869, 871 (1938)

(emphasis added).

                 The position that the time limitation in West Virginia Code § 23-4-15(a)

can never, under any circumstances, be tolled is contrary to both of these goals. It would

be harmful to employers because it encourages a decedent’s family to file a rushed

application for death benefits before they have any medical evidence indicating that the

death was work-related. Despite the insurance commissioner’s suggestion that Ms. H.

should have filed her application for death benefits before she received the autopsy

report, such a claim would have been purely speculative without it. This finding would

necessarily entail that any dependent of a person who has died should file for death

benefits with the glimmering hope that some evidence might later present itself showing

that the death was work-related. Such a result flies in the face of the Legislature’s intent

of protecting employers from frivolous claims.

                 A finding in this case that the time limitation in West Virginia Code § 23-4­

15(a) can never, under any circumstances, be tolled is also patently unfair to the claimant.

Such a finding would saddle the claimant with the impossible task of linking an injury to

a death that occurred twenty-one months later.           The absurdity of such a result is

heightened by the fact that even the decedent’s treating physicians and his employer did

not recognize the injury as life-threatening, and the autopsy report was not completed and

made available to the claimant until eight months after the death. This result directly

contradicts the Legislature’s intent of affording a claimant reasonable time to investigate

his/her claim.

                                               9

              Furthermore, the insurance commissioner’s argument that West Virginia

Code § 23-4-15(a)’s time limitation can never be tolled is inconsistent with other

provisions in the Workers’ Compensation Act. For example, West Virginia Code § 23-4­

16(a)(3) bars awards under the Workers’ Compensation Act from being made more than

two years after the employee’s death, a provision which would be obsolete if the six-

month time limitation in West Virginia Code § 23-4-15(a) could not, under any

circumstances, be tolled. This position would be inconsistent with our prior holding that

“[i]t is always presumed that the legislature will not enact a meaningless or useless

statute.” Syl. Pt. 4, State ex rel. Hardesty v. Aracoma, 147 W.Va. 645, 129 S.E.2d 921

(1963).

              The insurance commissioner’s proposed interpretation of the time

limitation in West Virginia Code § 23-4-15(a) causes potential harm to employers and

claimants alike, and it is inconsistent with other provisions of the Workers’

Compensation Act. Therefore, adopting the insurance commissioner’s position would

bring about an absurd and unjust result that was surely unintended by the Legislature. As

we said in Syllabus Point 2 of Click, 98 W.Va. 419, 127 S.E. 194, when a construction of

a statute (even one that is apparently warranted by the literal sense of the statute’s words)

would lead to injustice or absurdity, this Court has a duty to disregard that construction.

Pursuant to this duty, we interpret West Virginia Code § 23-4-15(a) to reflect the

Legislature’s true intent, uphold the law, and further justice. Id. Thus, in drafting West

Virginia Code § 23-4-15(a), we find that the Legislature did not intend that a claimant be

completely barred from receiving dependent’s death benefits where: due to the medical

                                             10

examiner’s delay in completing the autopsy, there was no knowledge or understanding

that the decedent’s death was work-related until eight months after the death, and the

claimant promptly filed his/her claim within six months of learning that the death was

work-related.

                Therefore, we hold that where a claimant to dependent’s death benefits

under the Workers’ Compensation Act delays filing a claim because the claimant was

unaware, and could not have learned through reasonable diligence, that the decedent’s

cause of death was work-related, and the delay was due to the medical examiner

completing and making available an autopsy report, the six-month time limitation on

filing a claim in West Virginia Code § 23-4-15(a) [2010] is tolled until the claimant,

through reasonable diligence, could have learned of the autopsy report finding that that

the decedent’s cause of death was, in any material degree, contributed to by an injury or

disease that arose in the course of and resulting from the decedent’s employment.

However, we limit our holding to death benefits under the Workers’ Compensation Act

where the delay was on the part of the medical examiner, not the claimant.4 This holding

does not apply to claimants who delay having an autopsy performed.




                4
                We recognize that the language of the Workers’ Compensation Act
evidences an intent to limit a claimant’s ability to file for benefits, protest, object, or
appeal, subject to strict time limitations. Such language is necessary to bar frivolous or
outdated claims. Therefore, we tread lightly in our holding to render a narrow ruling that
does not have the same unintended, expansive consequences as Bailey, 170 W.Va. 771,
296 S.E.2d 901. It is for this reason that we limit our holding to death benefits.


                                            11

               However, we caution that the six-month time limitation in West Virginia

Code § 23-4-15(a) is jurisdictional and a condition of the right to compensation under the

Workers’ Compensation Act. Therefore, the claimant’s failure to timely file a claim

within six months of when he/she could have learned that the employee’s death arose in

the course of and resulting from employment will not be excused.

               There was no medical evidence at the time Mr. H. died linking the death to

his employment. The autopsy was the first known medical evidence indicating that his

cause of death was work-related, but it was not completed and made available to the

family until August 24, 2011 (eight months after the death).          Therefore, the time

limitation in West Virginia Code § 23-4-15(a) did not begin to run until August 24, 2011,

if Ms. H. could not have reasonably learned that Mr. H’s cause of death was work-related

before that time. However, the Board of Review failed to determine whether Ms. H.

could have reasonably learned that Mr. H’s death was work-related before then.

Therefore, Board of Review erred in finding that Ms. H’s application was time-barred, as

a matter of law, because she did not file her application within six months of Mr. H’s

death.

         B. Proper Party to File for Dependent’s Death Benefits on Minor’s Behalf

               The claims administrator also rejected the application for dependent’s death

benefits on the ground that Ms. H., L.H.’s grandmother, was not a proper party to file an

application on L.H’s behalf. West Virginia Code § 23-4-15(a) provides that when an

employee or dependent of an employee “is mentally or physically incapable of filing the

application, it may be filed by his or her attorney or by a member of his or her family.”

                                            12

(Emphasis added). See also W.VA. CODE § 2-2-10(m) [1998] (persons under the age of

eighteen years are “under disability”).    By law, L.H., a six-year-old child, is both

mentally and physically incompetent to file an application for dependent’s death benefits.

Because Ms. H. is L.H’s grandmother, she is a member of L.H.’s “family,” and she is a

proper party to file an application on L.H’s behalf. Accordingly, we find it was error to

have rejected Ms. H’s filed application on the ground that she was not L.H.’s legal

guardian.5

                                        IV.

                                    CONCLUSION



             For the reasons set forth herein, the Board of Review erred in finding that,

as a matter of law, Ms. H. was untimely in applying for dependent’s death benefits on

L.H.’s behalf. Furthermore, Ms. H. was a proper party to file for dependent’s death

benefits on L.H.’s behalf. Accordingly, we reverse and remand the Board of Review’s

order.6

                                                                Reversed and Remanded.




             5
              While Ms. H is a proper party to file the death benefits claim, ultimate
payment and/or settlement of such claim might rest with the child’s guardian.
             6
               This appeal does not encompass whether there is sufficient, credible
evidence linking Mr. H’s death to the work-related injury or whether Mr. H’s family
should have reasonably known at the time of his death that the cause of death was work-
related. On remand, the parties will have the opportunity to develop these issues.


                                           13

