Lambert v. WCD and Vecellio & Grogan, etc. (concurring)
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No. 30041 -- Harvey Lambert v. Workers Compensation Division and Vecellio & Grogan, Inc. RELEASED FILED July 3, 2002 July 3, 2002 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA Maynard, Justice, concurring in part, and dissenting in part: I concur with the decisions in the instant cases. I believe that Mr. Lambert s PTD award should have an earlier onset date. However, I have serious concerns with regard to the new law created by the majority in Syllabus Points 3 and 4. First, I do not agree with new Syllabus Point 4. Because of the substantial differences between social security disability benefits and workers compensation awards, I believe that the fact that a workers compensation claimant has been awarded social security disability benefits should not be accorded any greater weight than other evidence in PTD onset date cases. Second, I would have found a way to award Mr. Lambert a PTD award as of the date of his below-the-knee amputation without revisiting and refining Miracle and Young. By providing that the beginning for a PTD award should be based on the date on which medical or other expert evidence indicated that a permanent total disability existed, the Miracle/Young rule inserted an element of certainty and supplied a much-needed benchmark in the selection 1 of PTD onset dates. In contrast, the new rule articulated in Syllabus Point 3 of the majority opinion makes the selection of PTD onset dates a much more subjective and uncertain exercise. Recently, I expressed my conviction that this Court regularly disregards applicable standards of review in order to find for claimants in workers compensation cases. See Martin v. Workers Compensation Div., 210 W.Va. 270, 557 S.E.2d 324 (2001) (Maynard, J., dissenting). I fear that the subjective nature of the new totality-of-the-evidence rule announced by the majority will allow that practice to continue. In conclusion, I concur with the Court s resolution of the instant cases, but I dissent to the newly-formulated law. Accordingly, I concur in part, and dissent in part. 2
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