ILP-DoLl3 STATE OF WEST WORKERS' COMPENSATION BOARD OF REVIEW WILLIAM F. CRAWFORD. Appellant Appeal No. 2050637 v. JCN:' 2014016722 001 0312812013 DePARTMENT OF CORRECTIONS - WORK RELEASE, ---------Appelleiee-------------------------- ORDER The following case is an appeal by -the claimant from a final order of the Work$rs' Compensation Office of Judges dated July 6,2015, which affirmed ihe claims administrator's order dated November 15, 2013, rfajectlng the claim. The Workers' Board of Review has compl$t$da thorough review of the record, briefs, and arguments. As required. the Workers' Compensation Board of Review has evaluated .tlle decision of the Office of Judges in light of the standard of review contained in West Virginia Code § 23..5-12, as well'as the applicable statutory langlJage as interpreted by the West Virginia Supreme Court of Appeals. Upon our review of this case, We have determined to affirm the decision of the Office of Judges. The Board adopts the findings of fact and conclUSions of law of the Administrative Law Judge's becision dated Jury 6, 2015, which relate to the issue on appeal, and the same are incorporated herein by reference, made a part hereof. and are ratified. confirmed and approved. I I I , i I 000001
Transcript
ILP-DoLl3 STATE OF WEST VII~GINIA
WORKERS COMPENSATION BOARD OF REVIEW
WILLIAM F CRAWFORD Appellant
Appeal No 2050637 v JCN 2014016722
001 0312812013 DePARTMENT OF CORRECTIONS - WORK RELEASE
---------Appelleiee--------------------------
ORDER
The following case is an appeal by -the claimant from a final order of the
Work$rs Compensation Office of Judges dated July 62015 which affirmed ihe claims
administrators order dated November 15 2013 rfajectlng the claim
The Workers Comp~flsation Board of Review has compl$t$da thorough
review of the record briefs and arguments As required the Workers Compensation
Board of Review has evaluated tlle decision of the Office of Judges in light of the
standard of review contained in West Virginia Code sect 235-12 as wellas the applicable
statutory langlJage as interpreted by the West Virginia Supreme Court of Appeals
Upon our review of this case We have determined to affirm the decision of
the Office of Judges The Board adopts the findings of fact and conclUSions of law of
the Administrative Law Judges becision dated Jury 6 2015 which relate to the issue on
appeal and the same are incorporated herein by reference made a part hereof and
are ratified confirmed and approved
~
~ I I I i
I000001
WILLIAM F CRAWFORD Appea1Np2050637
Accordingly It Is ORDERED that the final order of the Workers
Compensation Office of Judges dated July 62015 Is hereby AFFIRMED
From any final decision of the Board including any order of remand an
_____--applicatioh for review may be prosecuted b~ an) party to the Supreme Court of Appeals
within thirty days from the date of this order The appeal shall be filed with R()ry L
Perry II Clerk of the West Virginia Supreme Court of Appeals 1900 Kanawha
Boulevard East Charleston west Virginia 25305
DATED DECEMBER 212015
cc WILLIAM F CRAWFORD JOHN H SKAGGS DEPARTMENT OF CORRECTIONS WORK RELEASE LISA WARNER HUNTER ZURKH AMERiCAN INsuRANcE COMPANY
STATE OF WEST VIRGINIA WORJ(IRS COMPENSATION OFFICE OF JUDGES
IN THE MATTER OF
William Crawford JCN 2014016722 CLAIMANT
001 32amp-13 itnd
Dept Q1 Correctlons-Work Release EMPLOYER
DECISION OF ADMINISTRATIVE LAW JUDGE
PARTIEI
Claimant WilllamCrawfordi by Counsel John Skaggs Employer Dept of Corrections-Work Release by Counsel Lisa Hunter
RUE
The claimant protested the Claim Administrators Order dated November 15 2013 which denied the appllcatfon for benefits
DECISIONj
It Is h$leby ORDERED that t~eCfalm Administrators Order dated November 15 2013 be AFFIRMED
ReCORD CONSIDERED
See attached Record Considered
FINDINGS OF FACT
1 The claim administrator issued an Order dated November 15 2013 which denied the application for benefits as it was determined that he did not sustain an injury In the course of and resulting from his employment based In part on review of the WC1 and Investigation The claim administrators Investigation found the claimant was not an employee as defined under WV Code 523-4-1 (a) but was an Inmate of the Department of Corrections The claimant protested the Order
2 The claimant submJtted the Work Agreement dated January 11 2000 The Agreement Is betWeen the West Virginia Department of Military Affairs and Public
000003
JCN 2014016722William Crawford
Safety Division of Corrections and the West Virginia Departmen~ of Transportation Division of Highways (Highways) slating that Inmate participation crews may be assigned to Division of Highways for road maintenance purposes DIVIsion of Corrections was to select participants and Highways personnel would determine crew needs and coordinate with Corrections facilities managers to obtain available inmate crews Crews were to be available for aworkday to begin at 730 am Highways would prQvlde transportation vehlcl8$ and tools for the Inmate crews Lunches would be provided by Corrections Thfi rate of pay ws to vary according to middotthestalus of the Inmate Inmates from Correction Centers would be paid $150 per hour and Inmates from Work Release Centers and Beckley Correctional Center would be paid $450 per
----------iCh-=ou=-=r=Irrt7-wa=-==sn=-=otEed--itChacittihe~raite=-=-=oi-f-=pa=y~wo=udldr-b-e--reTlmmiddotibur=s~edr-b-yLHrrlgdhwa-ys-------lnma~te------ -_ --shycrews utilized by Highways would remain under the control and authority of Corrections at aU tJme$ Sp$Qlflcally Item_ 17 nQt~ HlghwY$and Corrections agree that Highways Is acting as an agent of Corrections and that the inmates performing servlces under this agreement wUl not be employees of the State entitling them lo any i)enetlts such employees might have Including but not limited to Insurance Worker compensation benefits pension sick and annUailleave
3 The claimant submitted the State of West Virginia Division of CorrecHons Policy Directive dated January 1 2004 The polley stated lilt Is the policy of the West Virginia Division of CorrectIOns to maintain a mechanism that ensures procedures for the management of Inmate work crews assigned to the West Virginia Department of Transportation Dlvi$lon of HlghwaY It was noted that the Division ofHlghways WOUld reimburSe the DivisIon of Corrections for Inmate wages as wellmiddotas salary reimbUrsement of the Correctlon Officer The Policy stated that In the event an Inmate was severely Injured requiling medical attention at an Emergency Room th~ Dlvilion of Corr~lonamp supervisor would take necessary steps to ensure medical treatment was prOVided In a timely manner Further the Division of Corrections supervisor was to notify the institution or facility of the injury and the facUlty was to dispatch a second officer to assist If necessary
4 The claimant submitted the Kan~ State University report titled ChipperShredder Safety dated April 1 2006 Safe operating procedures are provided and the report wams of the dangers of wood chippers and It gives detailS of accidents that have occurred
5~ The claimant submitted the Osha report titled Hazards of Wood Chippers dated April 16 2008 The report stated that there had been 39 employees killed in chipper accidents from 1996--2005 Work practICes were dl~ussed
6 The claimant submitted an excerpt the DIVision of Corrections 2010 Executive Budget The pagemiddot submitted Includes a Mission statement In which is noted that its mission is to enhance public safety by providing a safe secure humane correctional system Including an effective community supervision program opportunities to prepare offenders for successful re-entry and sensitivity and responsiveness to victims of crime Several OperatiOns are listed Academy
2
000004
--JCN 2014016722 Willlam Crawford
ServicesStaff Training and Development Adult Offender SElrvlceamp Parole Supervision Services West Virginia Correction~1 Industries Work ReleaseCommunity-Based Corrections and Young Adult Center Under the work release section It was noted that the Division of Corrections provides inmate work crews to the Division Of Highways and other community agencies
7 The claimant submitted the newspaper artlole dated July 12 2010 from the Charleston Dally Mall This document was labeled Exhibit A The article Is In refere~e to a S~ial Sec~rity Administration report naming West VIrginia as one of eight stites that give p-rleoners p-erformtng data p-rocesslnllJoba af a correctional facUity ~ess to citizens private Information The Commissioner of the West Virginia Division of COrrections Jim Ruenstein said the Information was incorrect The article stated that prisoners working through a work release program might be able to view such data If a private employer were to show them However it was noted by the Commlssloner that the majOrity of the work release Inmates work In the fast foodshyindustry and not daia proceeslng
8 The claimant submitted the West Virginia Department of HlghwaysJWest Virginia DiVision of Correetions StateWide Convict WorkfOrce Agreement dated April 26 2012 The partles agreed that Corrections would make avaUable to HighwaYS a number of Inmate work creW$ and set forth gneral conditions noting HighWays was to reimburse Corrections for inmate pay HighWays WOuld be reampPQnsible for training transportation and tools AU inmate work crews would be sLJpervlsed by representative of Highways and when clasSIfication levels of Inmate required it CorreQtions would provide Correctional Officers for the pUrpO$8S of preventing an escape only and HfghW$YS would reirnbQJSe the Correctional Offlcel$ payllem 17 noted Highways and Corrections _gree that inmatespetforming serviCes under this agreement will not be employees of the State entitling them to any benefits such employees might have including but not limited to insurance worker oompensatlon benefits pension sick and anriualleave
9 The claimant submitted a Contract for Placement at a Work Release Center signed by the olalmant Thft contract stated that the clalmEmt understOOd and agreed that hls Initial WOrk assignment would be a maintenance type job at the work r81ease center Advancement to other work would be gradual and dependent upon his adjustment at the center and his performance Paragraph 9 atatedthet he agreed and understood that he was responsible for all his medical expenses he Incurred at the Center Further that before receIVing medical ~ttentlon except In an emergency he was to notify the Administrator of the problem and he was to report all prescriPtion medication that he had taken or possessed
10 The claimant submitted the claimanrs Corrections work release record excerpt spanning from November 26 2012 through April 19 2013 The excerpt showed the claimants destination on multiple dates On multiple dates the claimants destination was the Department of Highways (DOH) speclncally on March 28 2013 It
3
000005
William Crawford JCN 2014016722
was noted that his destination on March 28 2013 also Included CAMC General He was paroled on April 19 2013
11 The employer submitted the Work Release Status Master Furlough Agreement dated November 27 2012 The clalmant signed the Agreement In which It was noted that upon furlough he s aware that he was stili under the custody of the West Vlrgln~a DivislQn Qf CorrectlQns The agreement noted that furloughs were considered to be any time he was authorized leave from the Center including visiting with famlly Job seeking work and medical appolntment$ etc
I --------12-middot-The--cl-aJ-m-a-nt-s-ub-m--tte-d-th-e-C-o-nt-ra-c-t-o-r-P-lao-e-m-e-n-t-o-n-R-o-ad-c-II-ew-or-----r-
CommUnity Crew that he signed and dated November 27 2012 noting the claimant had been$Sl~ted for placement on a community workcrewOOH rpad crew It was noted that under item 9 all a~dents were to be reported in writing to the Department of Transportation and the Division of Corrections staff as soon middotas praCtical and uncler Item 20 that while working on a community crewDO road crew program 30 of all wages earned would be deducted from the inmates account for the payment of rent
13 The employer submitted the Financial Information Management System Invotce sheets and Insurance clalmfonns noting medical treatment for the clalmant spanning from MarCh 28 2013 thrQughApril 1$ 2013
14 The employer submitted the typed statement of Darrell Sigmon dated March 282013 Mr Sigmon stated that he and the work release crew were chipping tree bnlnches and the chlpPl)rs chute plllggacJ The Chlpperctlute was rad to remove the clog in the chute and then the motor was shut down The claimant was told by Mr stgmQn and another work release worker Rocky to stay olear of chipper but the claimant plac~ a stick Into the chipper The chipper drum was moving slOWly and it pulled the claimant~shand Into the chipper injuring his hand Mr Sigmon took the alimant to the ~ffice and stated his supervisor took him to CAMe - General
15 The employer submitted the handwritten statement of Rooky Parsons dated March 28 2013 Mr Parsons stated that the crew and the crew supervisor were running the chipper when the chute was plugged With debris He said the cl1lpper had J~ been Shut off and the blades disengaged when the claimant approached the chipper He said he and the supervisor told the claimant not to stick his hands In there ~cause the blades were $till turning He said that the claimant asked If the blades were stili tumlngand at the same time he stuck his hand In the blades The claimant had to be taken to the emerg~ncy room
16 Th claimant submitted the Outy Officer Report dlted March 28 2013 A phone call was received that claimant Inmate had been In an accident wherein his hand was caught In a wood splitter and he was befng sent to CAMC - General for treatment The Department of Highways supervisor would be calling or stopping by to glve an update as soon as possible The claimant had surgery on hIs left hand and ailS fingers
4
000006
JCN 20104016722bullWilliam Crawford
were repaired His pinky finger was broken He had surgery to repair ligament on March 30 2013 and that he would have another surgery at a later date
17 The claimant submitted the Division of CorrecUons Incident Report Which was signed by Darrell Sigmen and dated March 28 2013 It was noted that on March 28 2013 the Department of Highways crew was chipping branches beside the road The chipper had stopped up abou~ four tImes that day The chutemiddot door was open and the chipper was turned over snghtfy to let the debris out While this was being done the claimant pUt a stick Into the chipper pa~ of the machine Ttle chlppef was off but the blade was stili sfigMtyJuming and It Jerked the stick and the claimant did not let loose of It quick enough ihe report stated that the claimant had been warned not to get his hand near the chipper because the blade wa$ stili moving but he did It anyway
Attached to the report were medication formsllog$ noting di$pensatiQn of medications to the claimant on dates spanning from November 26 2012 through March 112013
18 The claimant submitted his statement dated April 4 2013 The claimant stated that the accident occurred on March 29 2013 while he was chipping brush along Corridor G The chipper WfJS not operating properly anCl clogged He said that there were some small vines and branches sticking out from the Chipper and he grabbed one and tried to pull It to shake the chipper free It pule~ his hand into the blades of the chipper He said he did not stick hIS hands Into the chipper
19 The claimant submitted photographs Some pictures depicted an Injured left hand with stitches down the palm and past the wrist WIth Injuries on the palm face of an fingers The ring Imd liltle finger were amp~tated around the proximal Interphalangeal Joints A few photos showed the hand with healed wounds but shoWIng the two partially amputated fingers and a rather long scar from the mid-palm area down past the wrist
20 The claimant submitted a FOIA response rrom the WV Division of Corrections dated December 10 2013 Policies and egrEtementa irade pursuant to W Va Code 25-7-14 and 16 and WVa Code 23-4-18 Were provided A policy of the DMsfpn of Correqtlons dated January 1 2004 was irl9luded which concerned procedures for managing inmate work crews assigned to Division of Highways (DoH) It atated that If an inmate were seriously Injured hetshe should be taken to an emergency room ind that medical treatment must be provided In a timely manner A Correctional Officer was to be assigned to each road crew and the Officer was responsible for ensuring the crew members work the proper safety eqUipment and DOH was to supply all safety equipment The Officer was to ensure all crew members attended all safety meetfngs scheduled by DOH A Policy dated May 1 2013 also noted an agreement between Corrections and DOH It also required a Correctional Officer be aSSigned to eaoh road orew and the Officer was to ensure orews work safety equipment and attended safety meetings DOH provided transportation from the job site back to DOH Accident procedures were discussed Inmates would be paid $580 per hour beginning
5
000007
JCN 2014016722 William Crawford
July 1 2013 Thereafter the rate would remain at eO of the federal minimum wage rate Corrections would establish acertified training course on chainsaw usemiddot to Inmates and only those trained would be permitted to use a chainsaw There was an agreement dated January 11 2000 between Division of Corrections and DOH regarding crews of Inmates iupplled to DOH Inmates fom Correctional Centers would be paid $150 per hour and Inmates from Work Release Centers and Beckley Correctional Cemer would be paid $450 per hour DOH would reimburse Corr~Uons at the rate of $218800 per m()nth per officer Correctl()ns would Invoice DOH for Inmate work performed The agreement stated that Inmates performing services were not empl()yenees of the state entitling them to any benefits such employees might have
---------rin-cl~middotInLgbut not limited to Insurance worker compensation benefltspension sick and annual leave Further Corrections would provide any medical care needed by inmates performing services An agreement dated April 26 2012 provJded Qo~jflollS fQl Corrections to supply Inmale crews to DOH Crews were not permitted to operate heavy motorlz~ equipment or anything larger than a riding lawn mower DOH was to provide safetY equipment Inmates from Correc(lonalCenters and Wortlt Camps Wculd be paid $150 per hour and inmates frOinWork Release Centers and BSCkleyand Ohio County CQfTeQtfonal Centers would be paid $450 per hour until June 30 2012 and then $5~20 beginning July 1 2012 and beginning July 1 2013 the rate Increased to $580 per hour beJng 80 of the federal minimum wage and It would rise and filII In accorclance with the federal minimum wage
21 The claimantsubmitted a Contract for Plaoement at a Work Release Center slgne~ by the claimant dated January 23 2014 The clalm_nt ~ at Pruntytown Correctional Center and was to be put on work release for a probationary 30-day period at Charleston Work Release Center The Contract concerned the verioUl requirements placed on the claimant and It stated that he was agreeing to be responsible for all medical expenses he Incurred while at the Center He also agreed that prfor to receiving medical attention except for an emergenoy he had to notify the Administrator
22 The claimant submitted the employerS answers to Interrogatories and requests for producUon of documents dated January 31 2014 The employer objected to the request of the number of work release inmates Injured during their work for the last five years and tl18 naeof the Injury and other Information The employer did not answer The employer also objected to the Interrogatory aSking whether any workers compensation benefits had been paid and the amount paid However the employer stated that it was unaware of any Inmate ever recelvlng workers compensation benefits for Injuries received while performing services for another state agency Further as wards of the state inmates who require medical care related to services they are providing for a state agency while under authority of the Department of Corrections are provided care through the Department of Corrections In respo088 to Whether the claimant was working for an approved WOrk release program at the time of Injury the employer said that he was under a contract for placement at a work release center and under a Contract for Placement on Road Crew or Community Crew agreement In accordance with a WV DOHIWV Olvlslon of Corrections Statewide Convict Workforce Agreement
e
000008
WIlliam Crawford JON 2014016722
23 The employer submitted an Affidavit of Betty Slack dated June 23 2014 Ms Slaok stated that $he was the Deputy Direclor of WV correctional Industries and had held the position since December 2009 She managed the Prison Industries Enhancement rPIEQ Program for Division of Corrections guided by west Virginia Code)
sectsect25--7-13 and 25-7-14 According to M$ Slack all PIE prograrns must be operated Within the prison setting but none have ever actually operated In West Virginia She said that none of the current Inmate work programs now operating are regulated by PIE
24 The claimant submitted II deposition transcript of Betty Slack dated December 18 2014 Ms Slack testified that she worked as the DeplID Director of the West Virginia Correctfonallnduitrles since 2009 She said she had production shops In the prison facilities that produced fumlture seating printing engraving mattr8$S88 and yarJous Q~er products and that she oversaw productl~ She ove~8$ emploYees both Inmate middotand civilian She sald that certain inmates would be cleared for work and that she could pick them from a list of workers She said there are some Inmate work from the Charleston Work Release that help load and unload trucks and do Janitorial Jobs They are paid hourly She said the Work Release workers are nearing a release from prison She said that the work~r Is not Pflid dlreotly~ the Charlast~ Work Release Center Is paid and It makes deductions for room and board and the rest Is put In the Inmat~ account She said the workers do not receive benefihi She was not familiar With the Charleston Work Release Program ~xceptmiddotth8t she got Inmate workers from thete when requested She noted that Jeff Stinnett is the administrator for the Charleston Work Release Center
25 The claimant submitted a transcript of the deposition of Jeff Stinnett dated february 5 2015 Mr Stlrmett statd that hI was the Administrator of the Charleston Work Release Center on Brooks Street in Charleston WV He stated that he had worked there since 1993~ He stated that he oversees dally operations of the facHlty which has capacity for slxtyslx He stated ~cd he recalled the claimant and that he signed a contract to go to the work release center Mr Stinnett stated that workers sometimes work for other state agencies ~esldes highways but DO H was the only one With a formalized agreement with corrections He stated that there were eligibility criteria for work release He said that some Inmates work at fast food restaurants grocery stores ancl factory work When worklrg In priv~te employment they are paid the same wages as their co-workersand have standard deductions from their pays such as FICA He stated that as far as he knew the private employers reported lhese workers wages for workers compensation purposes Every worker In private or agency work pays 5 dollars per day of their earnings to Corrections for maintenance and support The majority of rest goes Into a trustee ~ount that they receive once discharged but they can get a small amount weekly for basic needs Mr StJnneH stated that he recalled one other Individual injured while working on a Kanawha State Forest crew In the past He stated that there was a new regulation regarding the use of chalnsaws and the size of equipment inmates can operate but these were Highways rules and he was not familiar with them He stated that Corrections teaches chalnsaw training for the Inmate work but not for other equipment Mr Stinnett stated that Health
7
000009
WIlliam Crawford JON 2014016722
Right Is one place Inmates go If they need health oare Which Is billed on a sliding scale and many times is free for the Inmates
26 The claimant submitted a transcript of the deposition of Bobby Williams dated March 31 2015 At the beginning of the dep)$IUon cQunsel for the employer placed on the record an objection to the request for an e)(tenalon of time frame filed by claimants counsel The employer did nCit object to the deposition but did object to the extenslon for the purposes of keeping open the reoord In the protest Mr Williams sttedthat he was employed at the Charleston Work Release Center as a case manager and he Is the em~ment coordinator His duties Include assisting Inmates with parole paperwork and helping them look for work He stated that he recalled the claimant and that he was in an accident He stated that inmates were responslbte for seeking private employment He said he would talk to the inmates and ask If they wanted to work for Highways on a road crew He would look to see where the InmateS WOuld be released and ir It would be In the Charleston area It made $8nse to have them work In the commul1lty He stated that he was not aware of any other residents at his facility that were Injured while working for DOH He stated that he could not recall whether the claimant asked to work for DOH Mr Williams was aware that the claimant was to be paroled to Har~y County which is not within a driving distance for work In Charleston He said that sometimes they transfer Inmates to a work release center closer to where they will be paroled~
27 The claimant filed a clOsing arg~ment dated July 11 2014 The claimant argued that he was entHled to WQrk~rs compensation beneflt$ for an injury IIe received while he was In a prison work release program involving the Department of Highways (DOHiI) The claimant stated that he was seMog a period of confinement at the Charleston Work Release Center and was working for the DOH pursuant to a WQrk release agreement when he was Injured on March 28 2013 He stated that his hand was caught In a wood chipper and was mangled He was treat~d at CAMe where his medical 1)111 Were In excess of $90000 and were paid by the Department of Corrections The claimant said he partfallyamputated fingers of his left hand
Counsel for the clilmant stated that he hid not been ible to Identify the rules and regulations that applied to the Interagency employment of inmates He had found a policy dated August 12013 which postdated the claimants Injury and a work agreement that also postdated the Injury However a January 1 2004 poUcy was In effect at the time It governed the management of Inmate work crews for DOH and stated that In the event of a serious injury an Inmate was to be taken to an emergency room Further the policy Indicated that work release Inmates would have occa$lon to work In situations that may result in aCCidents and may require safety eqUipment There was also an agreement between Corrections and DOH dated April 26 2012 which stated the obligations of each agency for Inmate work crews This agreement provided for training by Corrections for the inmates to learn to safely operate ohalnsaws Further inmates were to be paid $450 per hour The claimant signed an agreement for work release when he was at Pruntytown
a
000010
WiUiam Crawford JCN 2014016722
Counsel noted that WVa Code sect23-4-1e(b) states
(b) Notwithstanding any provision of this code to the contrary no person confined in a state correctional f~iI~y or jail who suffers Injury or a disease In the eour$e of and resulting from his or her work during the period of confinement which work Is imposed by the admlntration of the state correctional facility or Jail and IS not suffered during the persons usual employment with his or her usual eMployer when not confined shall receive benefits under the provisions of this chapter for the InJUry or disease ProVIded That individuals otherwise QOIlftned In a state correctional facility or JaU or at a Juvenile services facility IInd working In a program authorized by sections fourteen or sixteen of article sevenchapter twenty-five of this code shall be eligible to receive benefits under the prov~Jons of this chapter while working In an authorized program The coverage for benefits may be obtained either by the prtvate entity or by agreernentwJth the state agency as specified In subsection (5) subsection (a) of sections fourteen and sixteen of artlc1e sevenchapter twenty-five of this code
Counsel also noted that WVa Code sect23-4-1e(b) referenced sect125-7-14 and 25shy7-16 which relate to a Prison Industry Enhancement (PIE) CertlflcIQn middotProgram Thus counsel said that there were two situatIons In whIch an Inmate is eligible for workersmiddot compensation benefits - working for PrISon Industries and working in the private sector pn work release The clamant argued thet there was no rational baels to discriminate betWeen prisoner classifications regarding workers compensation benefits The claimant was performing work that was of such nature that he could have done for a private employer He argued that there was no significant difference In status between the claimant and an inmate working for Prison Industries or placed in priVlllte employment who Is covered by workers compensation
Counsel noted significant differences between the 2012 agreement and earlier agreement$ The 2012 agreement provides that Inmates shall not operate equIpment larger than a riding lawn mower Further Inmates are not to use cnalnsaws WIthout special training Counsel argued that the hazardousness of operaUg wood Chippers Is shown In publications by OSHA
Citing state ex reI Boan vs Richardson 482 SE 2d 162 foNVa 1986) counsel argued that the Supreme Court of Appeals has held that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In similar circumstances and that any such statute violates the equal protection clause Art III Section 10 of the WVa Constltltlon The Court stated tJ1at It would look to whether the classlflcatlon was rational and based on social economIc historic or geographic factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally
9
000011
wiUlam Crawford JON 2014016722
The claimant argued that he was a member of a class of Incarcerated prisoners In which all persons are not treated equally Some of these workers are mandated to receive workers compensation and others are not The dlfferentiaUon between class members had nothing to do with the work performed 8$ he colfld have operated a wood chipper for a private employer Further placement In work Is not a function of anything other than availability of work so It middotIs a matter of chance or fate There was no rational basis on which to diSCriminate betwen Inmates W~rklng for Prison Indmries Working In private employment or working for a state agency The claimant argued that the denial of workers compensation to the claimant under these circumstances does not
_____--advance-LreasonablLgoveOlmemal--Dteresl_[bLretnedieLavallable_Jo_prlvaleyen-y--shyemployed inmates and state employed Inmates are different In that privately employ Inmet are coverd by workers CQmpensatl~n whereas those employed by a _e middotagencyrenot The onlymiddot remedy for astate employed InmatemiddotJsmiddota claim-under 42U$C 1983 for cruel and unusual punishment but this claim rqulres proof of deliberate jndlmrence middotto the hazard aOd this burden of proof Is eXtremely dlfllculttb meet Thus there are substantial dltterences In the remedies available to Inmates injured middoton the Job The ~almant also noted that Inmates engaged In work for the state re paid very low wag and had he been empfoyed by a PriVate employer he would have had benefit of workers compensation coverage
28 The employer filed a closing argument dated August 21 2014 Th employer argued that the ofalm was properly rejected because the clalmamiddotnl did not suffer an Injury In the course of and Ii result middotof covered employment The employer argued that the claimant was not an emplQyeeentiUed to workers compenSation ~ntlts Th employer noted ~hBt the Qlalrnant wa~ In~arcetated at the time of the Injury He was working on March 28 2013 on Corridor G for the Department of Highways when his hand was caught In a wood chipper He was nated at CAMe and his medical bills were paid by ttl Department of Corrections The employer felt that the circumstances of how the claimant became Injured were Irrelevant to compensability The employer stated that there was flO dispute that the claimant was performhig $8rvlces for DOH as part of his connnement at the Charleston Work Release Center He signed an agreement on November 27 2012 whkh was subject to a Contract for Placement at amiddot Work Release Center that he also signed His dUties with DOH were contingent on hlsmiddotContract for Placement on Road Crew or communitY Crew whIoh he signed on November 27 2012 The employer argued that according to documents raled to the agreement between the Department of Corrections and DOH Corrections would provide DOH with Inmates to perform dUUes for pOH The agreement outlined the terms and canditi~ related to the use of Inmate services and the compensation that Corrections would receive on behalf of the Inmates The agreement provided that the Inmates p$rforrrdog servfc~ under this agreement will not be employees of the State entitling them to any benefits such employees might have including but not limited to Insurance worker compensation benefits pensions sick and annual leaveII
The employer argued that the only wayan Inmate would be entiHed to workers compensation benefitS Is pursuant to placement In a program established under WVa Code sect25-7-14 or sect25-7-16 which apply to programs estabUshed to the federal Prison
10
000012
William Crawford JON 2014016722
Industry Enhancement (PIE) Certification Program The evidence shows that to date no such programs have ever existed and no DOCDOH road crew program Ie part of PIE
The employer argued that WVa Code sect23-2-1deflnea employer and sect 2~2-1a defines aemployeeD The employer argued that the claimant Is barred from receiving workers compensation benefits due to his status as an Incarcerated individual at the time of his injury because WVa Code sect23-4-1eb) provides that I[n)otwlthstandlng any provislcm of this code to the contrary no person confined hi a state correctional facility
____-----Dr_JaILwbo-suffersJnJWyen--DudlseaseJnJbeMursUlLand1uuJtlng1mmltlsoLhe( w~ork_____ during the period of confinement whiCh work Is Imposed by the ~dmlnlstratlon of the state correctional facility or Jail and is not suffered during the persons usual employment with his or her usUal employer when not conftnedshall receive benem under the provisions of thl~ chapter for the injury or d~ease
The employer argued that the code 8peclfie$ that an Inmate Is not entitled to workers compenSation If Injured while completing work imposed by the administration ofthe state correctional facility or jail However had he been working in a PIE program he would hav~ been enHtled to workers cC)mpensation beneflts The employer argued that tbe claimants closing argument confirmed this finding- but he argues that his constitutional rights have been violated In response the employer argued th~t the PIE program flowed out of federal leglslatlcm and (hat the clear and rational basis for the requirement that private employers provide workers compensation ooverage for Inmate employees under the Pie program is 80 no unfair advantage la given to the private employer
The employer argued that the olaimants constitutional argument falla and that his only recourse Is to petition the legislature for a change In the current law However the employer argued that any determination by the Court that all Inmates are entitled to workers compensation benefits would slgnlJlcantIy ImpaCt the states budget
29 The claimant flied a Reply to Closing Argument and Exhibits dated August 26 2014 The claimant clarified that his argument based upon the PIE program was based upon the employers affidavit Indicating that program Is dormant He stated that even If the PIE program had remained dormant this did not mean that Inmates were only empioyed by DOH and that statements by the Director of Division of Corrections and the Governors BUdget document clearly state that Inmates are employed In the private sector The claimant attached Exhibit A to this filing and he stated that In this attachment Mr Rubenstein stated that the majority of Inmates -e empoyed In fast food industry and restaurants The claimant again argued that there was a dlaparate treatment between inmates who work for the Department of transportation and those In any kind of private employment and this was a violation of the Canstltudan
30 The employer filed a Response to Closing Argument and exhibits dated September 9 2014 The employer argued that the claimants reply was submitted on
11
000013
WIUlam Crawford JCN 2014016722
August 26 2014 which was filed after the ten day prlod for case summation pursuant to WVa CSR sect 93~1-65 since the time frame expired on August 11 2014
The employer stated that the provlslons of Article 7 of Chapter 25 of the West Virginia Code were drafted to comply with 18 USC sect 1161 (c) the PIE program The federal legislation allOWS state andmiddot local prisons to be exempt from federal restrictions on prisoner-made goods entering Inte_te commerce and allOWS private individuals tn some clrcumst~mces to hire Inmates for production of goods However the Inmates must be paid similar wages 80 as not to allow a private Industry to obtilhlan unfair
------_advantagacomparecUO-the-prlva~sector~-ThaemployJtr--8tatedJbaUmgatiorLl8gamlng_______ 18 OSC sect 1761(0) Is cleaithal Its purpose Is to protect private businesses and that It was not enacted to protect Inmate workers The ernp~oyer cited McMaster v Minnesota 30 F3d 9679811994 US App Lexls 1861816 (8middot CIr Minn 1994)
31 The employer flied a Seoond Closing Argument ~ated MarQh 162015 The employer stated that the Issue was whether the claimant was entitled to receive workers compensation benems after sustainIng an injury while working for DIVIsion of HlghwaY$ on a work crew from the Chal1stQn Work Release Center The employer noted that the claimant signed a Maser Furlough Agreement on November 27 2012 He also signed a Contract for Placement at a Work Release Center His duties WIth DOH were contingent on a Contract for Placement on Road Crew or Community Crew which he signed on November 272012
The employer noted that there were agreements between Department of Corrections and Division of Highways regarding Inmate servk Neither DOH nor DOC conSidered the Inmate workers fo be employees and the contract stated that they were not employees of the State and not entitled to employee benefits Including degworker compens~lljon
The employer argued that the only conditions under which an Inmate is entitled to workers compensation benefits Is if he were placed In a Prison Industry Enhancement (PIE) Certification Program under WVa Codmiddote sect 25-7-14 or sect25-7-16 Ther have never been any PIE programs In West Virginia and so the claimant was not part of this program
The employer responded to the claimants argument that inmates employed in the private sector outside the PIE program and they are coved by workers compensation and thus the noncoverage for inmates such as the claimant Is unconstitutional The employer argued that Ms Slack testified that Correctional Industries operates about 17 production shops In which inmates work Some Inmates from the Charleston Work Release Center assist but none of the (nmates receive benefits Mr stinnett administrator of the Charleston Work Release Centertestlfled that there were criteria for Inmates to be placed at the Work Release Center and there was a running list of Inmates who desired placement When a bed opened an Inmate Is placed there He stated that about 45 Inmates work In private Industry rather than with
12
000014
William Crawford JCN 2014016722
the State The C~nter attempted to get private Jobs for inmates who would ultimately be released In Charleston so that they can continue to work when reJeased
The employer argued that the clalm_nt was barred from receiving workers compensation duetohts Incarceration at the time of his inJury pursuant to WVa Code sect23-4-1e The employer noted that PIE program Inmates are provided coverage by the private employer and that the purpose of this was to Implement federal regulations and protect private businesses from unfair competition Thus there is a clear and rational basis for dlff8f~mces between Inmates wC)fklng for private employers In a PIE program
32 The claimant filed a Supplemental Closing Argument dated March 20 2015 The claimant argued that the statutory framework regarding work- rajease and the provision of beneflt$ and the Implementation of the statute by the Department of Corrections violates the equal protection clause The claimant argued that not only do Inmates who woUld work under the PIE program Of ever Imptemerited) receive workers comperl$ation ~enet1ts but those who are released to work in the private sector receive workers compensation and other benefits The claImant argued that those who work for Department of Highways do not relieve the ame benfllsas those similrly situated Inmates whQ work In private sector jobs and this is discrimination with no reasonabie basis
33 Counsel for the claimant and the employer presented closing arguments at a hearlng on May 5 2015 Cou for the claimant _ated that the Issue was oompensabllityfor an Inmate Who Injured his hand while working for a Division of Highways crew while at a Work Release Center Counsel for the claimant cited State ex ret Boan VS Richardson 482 SE 2d 162 ~Va 1966) IInd argued that the SUpreme Court of Appeals ruled that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In slmUar circumstances and that any suqh statute violates the equal protectlcm clause Art IU SeCtion 10 of the WVa Constitution Counsel stated that had the claimant worked for a private employer he would have been covered j)y workers compensation There are no rules or regulaUons governing whether an Inmate works for DOH or a private employer Thus there Is no rational basiS for how they are assigned Underbn the elaimant argued he has been wrongfully dlscrfmlnated against
The employer stated that the claimant was barred frQm receiving workers compensatlc)O WVa Code sect23-4-1e(b) He was an Inmate subject to confinement and was not In a PIE program which Is an exception The participant Inmates are stUI Incarcerated While In the Work Release program The OOJ has no authority to decide the statute Is Constitutional The claimants remedy Is to convince the state legislature to change the statute Counsel for the employer stated that his mecilcal bills were covred by Department of Corrections Counsel argued that the OOJ must affirm the Order Counsel Indicated that once paroled the claimant was not eligible for further medIcal treatment to be paid by Department of Corrections
13
000015
William Crawford JCN 2014016722
DISCUSSION
This case Is before the OffIce of Judges based on a protest to the Order regarding tbe compensElbllltyof the claim W- Virgins Code -523-4-1 provides for benefits to employees who receive an Injury In the course of and as a result of their covered employment The more preci$e $Sue presented hre Is whether the claimant Is entitled to benefits for an InjJJry he received while he waS an inmate working on a crew pursuant to agreements between himselfi the Department of corrections and DMslon of Highways
i ---------------------------------------------------------------------~-
W Va Code sect23-4-1 9 provides that for all awards made on and after July 1 I 2003 the resolution of any Issue shall be ba~ upon a weighing of atl evldenoe pertelnlng -lothe Issue and a finding that8 preponderance of themiddot evidence supportsmiddot the chosen manner of resolution The process of weighing evld~nce $hall include ~ut not be limited to an assessmei1t of the r~lecC credlblRty materiality and rellabllty that the evidence possesses In the context of the Issue presented No Issue may be resolved by allOWing certain evidence to be diSpositive Simply because It Is reflable and Is mosJ favor-ble to a partys Intrests or position The resolution of Issues n claims for compensation must be decided on the merits and not according to any prinCiple that requir statut governing workers ~ompeJS~lon to be Ilb~rally conStrued because th~V are remedialili natute If after weighing all of the evidence regarding an Issue there Is a finding that an equal amount of evidentiary weight ~$ for each side the resoltiQcm that is most con$lstent With the claUnant$ position Will be adopted
Preponderence of the evldenQe means proof that $omethlng Is more likely 80 thail nbt ~o In other words a preponderance Of the evidence means such evidence when considered and compared with opposing evidence Is more pe~uaslve or convincing Pre~nderance of the evidence may not be determined by merely counting the number of witnesses reports evaluations or other items of evidence Rathermiddotft Is datennlned by assessing the persaslven8$Sof the evidence Includlng the opportUnity for knowledge Information possessed and manner of testifying or reporting
While working on a highway crew on March 282013 the claiment badly Injured his hand In a wood chipper While there are some variances In the claimants statements compared to witneamp$ statements about the particulars of the InJury none of those differences would change the outcome of this Decision and thus are not relevant to the discussion There Is no dispute that the claimant was Injured as a result of his work on the road crew while he was an inmate at the Charleston Work Release Centr His inJuries fe$ulted In surgery and hospitalization at CAMC where his medical bills In e)(cees of $90000 were paId by the Department of Corrections He was paroled soon after he was released from the hospital
The claim was rejected by an Order dated November 15 2013 which denied the application for benefits as it was determined that he did not sustain an Injury In the course of and resulting from his employment The claim administrators Investigation
14
000016
WilHam Crawford JON 2014016722
Inmates and that they must pay them the same wages non-Inmate workers and they must provide workers compensation coverage for them (See deposition of Jeff stinnett Administrator of the Charleston Work Release Center dated February 5 2015) Most of the private employment of Inmates 18 In fast food reurants grocery stores and factorieS Bobby WIlliams a case manager at the Charleston Work Release Center testified on March 31 2015 that he talked tolnmat~ to see If they wanted to work on a DOH crew He said that to m It made sense to place inmates In posiUons In the community In which they would be released The claimant was to be paroled to Hardy County which Is not within a driving distance to Charleston
The claimant argued that there were no rules or regJlations that would determine -shywhether an Inmate was placed In a private companymiddot or with DOH However this placement- would middotdetermln their fate If -they were InJured While on work refeaee Counsel for the claimant argued that this disparate treatment was discriminatory Counsel cited the West Virginia Supreme Court of Appeals holding In State ex ret Boan YS RlcIDardson 482 se 2d 162 ~va 1966) In which the court held that a workers compensation statute atfeQtlng economic rights may not be used to discriminate among a class of In~lvl~uals In similar circumstances and that any such statute violates the equal protection clause Art IU Section 10 of ttle WVa Constitution The Court stated that ~ would look to whe~her the classffication was rational and Qbased on socliil economic historic or geographIc factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally Id at 164 The claimant argued that he was a inmbar of Incarcerated prisoners in Which all persons weranot treated equally In that some qualified for workers compensation coverage and others did not
There Is no disagreement In this case that W Va Code sect23-4-1e(b) bars the claimant frC)O1 r~elpt of workers compensation benefltB The claimant argues that this law Is unconstltutlonal The Offlce of Judges Is not an Article III Court and does not have jurisdiction to rule a sttule is unconstitutional Therefore itmiddot1S found that the Order properly rejected the claim pursuant to W Va Code sect23-41e(b)
CONCWSlONS OF LAW
Pursuant to W Va Code sect23-4-1e(b) the claimant is ineligible to receive workers compensation benefits fer an Injury he received while In a Work Release Center performing work for Division of Highways In accordance With agreements with Department of Corrections
It Is therefore ORDERED that the Claim Administrators Order dated November 152013 be AFFIRMED
16
000017
William Crawford JON 2014016722
APPEAL RIGHTS
Under the provisions of WVa Code sect23-5-12 any aggrieved party may file a written appeal wlthlnthJrty (30) days after receipt of any decision or action of the Administrative Law Judge The appeal shall be filed ~Irectly with the Workrs Compensation Board of Review at PO Box 2828 Cha~eston WV 263~9
Date July 6bull 2015
RibcCca S CharI Administrative Law ludp
RSCQtc
cc WILUAM F CRAWFORD JOHN HENRY SKAGGS -COUNSEL FOR CLAIMANT DEPT OF CORRECTIONS-WORK RELEASE LISA WARNER HUNTER - COUNSEL FOR EMPLOYER AMERiCAN ZURICH INS CO
17
000018
William Crawford JCN 2014016722
JCN
Date
2014016722
July 6 2015
ReconJ Considered
The Clalmanfs protest to the Claims Administrators order Of regarding REJECTION OF CLAIM
November 15 2013
EVIDENCE SUBMITTED
Claimant Evidence
Document Type Not Specified Document Date 11112000 Submit Date 6Q012014 Author EMPlOYERICLAIMANT - WORK AGREEMENT
DoaIment Type NotSpepified Document Date 1112OQ4 Submit Date 612012014 Author WV DIVISIONS OF CORRECTIONS - POUCY
OIRECnVE
Document Type Not Specified Document Date 41112006 Submit Date 612012014 Author CHIPPERISHREDOER SAFElY - K-STATE
ARTICLE
Document Type Oocum~nt Dale Submit Date
Not Specified 41612008 612012014
18
000019
Willism Crawford JON 2014016722
Author HAZARDS OF WOOD CHIPPERS - OSHAOOV
Document Type Not-Specified Document Date 7112010 Submit Date 812612014 Author DIVISION OF CORRECTIONS-2010 EXECUTIVE BUDGET
STATEMENT
Document Type Not Specified-----DocumenrDste=------r71t212010----------------------- ----
Submit Date 812612014 Author NEWSPAPER ARTICLE~DEPTOF CORR~CTIONS
Document Type NotSpecified Oocument Date 412612012 Submit 08te612012014 Author CONVICT WORKFoRCE AGREEMENT
Document Type -Not Specifted Document pate 4I26J2012 Submit Date 812012014 Author CLAIMANT - CONTRACT FOR PLACEMENT
Document Type NotSpeCified [)(lcument Date 1112612012 Submit Date 1123i2014 Author WORK RELEASE RECORD (111261122-19-13)
Document Type Not Speclfjed Document Date 1112712012 Submit Date 112312014 Author CONTRACTIPLACEMENT ON ROADCOMMUNITV
CREW
Document Type Not Specified Document Date 312812013 Submit Date 112312014 Author DUTY OFFICER REPORT
Document Type Not Specified Document Date 32812013 Submit Date 1232014 Author INCIDENT REPORT WITH ATTACHED MEDICATION
FORMS
19
000020
William Crawford JCN2014016722
Document Type Not Specified Document Dale 4412013 Submit Date 112312014 Author WILLIAM CRAWFO~D ~ STATEMENT
Document Type Not Specified DocUment Dale 412512013 Submit Date 611912014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 121102013 Submit Date 1l23t014 Aulhor CLAIMANTS DEPT OF CORRECTIONS FILE
Document Type Not Specified Document Date 12312014 Submit Date 112312014 Author CLAIMANT - CONTRACT PLACEMENTIWORK RELEASE
CENTER-UNDATED
Document Type NotSpeclfied Document De 113112014 Submit Date 2412014 Author EMPLOYER INTERROGATORIES
Document Type Not Specified Document Date 62312014 Submit Date 012312014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 12118204 Submit Date 11412015 Author BETIY SLACKmiddot DEPOSITION
Document Type Not Specified Document Date 21512015 Submit Date 212612015 Author JEFF STINNETTmiddot DEPOSITION WIEXHIBiTS
Document Type Not Specified Document Date 313112015 Submit Date 412212015 Author BOBBY WILUAMS - DEPOSITION
20
000021
JCN 2014016722WlUlam Crawford
Emglgyer Evid8DC8
Document Type Npt Specified ------f)ocumentDate--tlf2mo2-------------------- shy
$lIbmiiOate 73112014 Author WORK RELEASE STATUS MASTER FURLOUGH
AGREEMENT
Document Type Not Sp~lfied Document Date 312812013 Submit Date 713112014 Author OFFICE OF WV AUDITORmiddot FINANCIAL INFO MANAGEMENT
SYSTEM INVOICE SHEETS
Document Type Not Specified Document Date 312812013 Subinlt Date 713112014 Author DARRELL SIGMON - STATEMENT
Document Type Not Specified Document Date 31282013 Submit Date 713112014 Author ROCKY pARSONSmiddot STATEMENT
D~umentType Not Specified Document Date 612312014 Submit Date 713112014 Author BETTY SLACKmiddot AFFIDAVIT
CLOSING ARGUMENTS
21
000022
WillIam Crawford
PalY Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted tettE3FDate Party Submitted Letter Date
STATE OF WEST VIRGINIA WORJ(IRS COMPENSATION OFFICE OF JUDGES
IN THE MATTER OF
William Crawford JCN 2014016722 CLAIMANT
001 32amp-13 itnd
Dept Q1 Correctlons-Work Release EMPLOYER
DECISION OF ADMINISTRATIVE LAW JUDGE
PARTIEI
Claimant WilllamCrawfordi by Counsel John Skaggs Employer Dept of Corrections-Work Release by Counsel Lisa Hunter
RUE
The claimant protested the Claim Administrators Order dated November 15 2013 which denied the appllcatfon for benefits
DECISIONj
It Is h$leby ORDERED that t~eCfalm Administrators Order dated November 15 2013 be AFFIRMED
ReCORD CONSIDERED
See attached Record Considered
FINDINGS OF FACT
1 The claim administrator issued an Order dated November 15 2013 which denied the application for benefits as it was determined that he did not sustain an injury In the course of and resulting from his employment based In part on review of the WC1 and Investigation The claim administrators Investigation found the claimant was not an employee as defined under WV Code 523-4-1 (a) but was an Inmate of the Department of Corrections The claimant protested the Order
2 The claimant submJtted the Work Agreement dated January 11 2000 The Agreement Is betWeen the West Virginia Department of Military Affairs and Public
000003
JCN 2014016722William Crawford
Safety Division of Corrections and the West Virginia Departmen~ of Transportation Division of Highways (Highways) slating that Inmate participation crews may be assigned to Division of Highways for road maintenance purposes DIVIsion of Corrections was to select participants and Highways personnel would determine crew needs and coordinate with Corrections facilities managers to obtain available inmate crews Crews were to be available for aworkday to begin at 730 am Highways would prQvlde transportation vehlcl8$ and tools for the Inmate crews Lunches would be provided by Corrections Thfi rate of pay ws to vary according to middotthestalus of the Inmate Inmates from Correction Centers would be paid $150 per hour and Inmates from Work Release Centers and Beckley Correctional Center would be paid $450 per
----------iCh-=ou=-=r=Irrt7-wa=-==sn=-=otEed--itChacittihe~raite=-=-=oi-f-=pa=y~wo=udldr-b-e--reTlmmiddotibur=s~edr-b-yLHrrlgdhwa-ys-------lnma~te------ -_ --shycrews utilized by Highways would remain under the control and authority of Corrections at aU tJme$ Sp$Qlflcally Item_ 17 nQt~ HlghwY$and Corrections agree that Highways Is acting as an agent of Corrections and that the inmates performing servlces under this agreement wUl not be employees of the State entitling them lo any i)enetlts such employees might have Including but not limited to Insurance Worker compensation benefits pension sick and annUailleave
3 The claimant submitted the State of West Virginia Division of CorrecHons Policy Directive dated January 1 2004 The polley stated lilt Is the policy of the West Virginia Division of CorrectIOns to maintain a mechanism that ensures procedures for the management of Inmate work crews assigned to the West Virginia Department of Transportation Dlvi$lon of HlghwaY It was noted that the Division ofHlghways WOUld reimburSe the DivisIon of Corrections for Inmate wages as wellmiddotas salary reimbUrsement of the Correctlon Officer The Policy stated that In the event an Inmate was severely Injured requiling medical attention at an Emergency Room th~ Dlvilion of Corr~lonamp supervisor would take necessary steps to ensure medical treatment was prOVided In a timely manner Further the Division of Corrections supervisor was to notify the institution or facility of the injury and the facUlty was to dispatch a second officer to assist If necessary
4 The claimant submitted the Kan~ State University report titled ChipperShredder Safety dated April 1 2006 Safe operating procedures are provided and the report wams of the dangers of wood chippers and It gives detailS of accidents that have occurred
5~ The claimant submitted the Osha report titled Hazards of Wood Chippers dated April 16 2008 The report stated that there had been 39 employees killed in chipper accidents from 1996--2005 Work practICes were dl~ussed
6 The claimant submitted an excerpt the DIVision of Corrections 2010 Executive Budget The pagemiddot submitted Includes a Mission statement In which is noted that its mission is to enhance public safety by providing a safe secure humane correctional system Including an effective community supervision program opportunities to prepare offenders for successful re-entry and sensitivity and responsiveness to victims of crime Several OperatiOns are listed Academy
2
000004
--JCN 2014016722 Willlam Crawford
ServicesStaff Training and Development Adult Offender SElrvlceamp Parole Supervision Services West Virginia Correction~1 Industries Work ReleaseCommunity-Based Corrections and Young Adult Center Under the work release section It was noted that the Division of Corrections provides inmate work crews to the Division Of Highways and other community agencies
7 The claimant submitted the newspaper artlole dated July 12 2010 from the Charleston Dally Mall This document was labeled Exhibit A The article Is In refere~e to a S~ial Sec~rity Administration report naming West VIrginia as one of eight stites that give p-rleoners p-erformtng data p-rocesslnllJoba af a correctional facUity ~ess to citizens private Information The Commissioner of the West Virginia Division of COrrections Jim Ruenstein said the Information was incorrect The article stated that prisoners working through a work release program might be able to view such data If a private employer were to show them However it was noted by the Commlssloner that the majOrity of the work release Inmates work In the fast foodshyindustry and not daia proceeslng
8 The claimant submitted the West Virginia Department of HlghwaysJWest Virginia DiVision of Correetions StateWide Convict WorkfOrce Agreement dated April 26 2012 The partles agreed that Corrections would make avaUable to HighwaYS a number of Inmate work creW$ and set forth gneral conditions noting HighWays was to reimburse Corrections for inmate pay HighWays WOuld be reampPQnsible for training transportation and tools AU inmate work crews would be sLJpervlsed by representative of Highways and when clasSIfication levels of Inmate required it CorreQtions would provide Correctional Officers for the pUrpO$8S of preventing an escape only and HfghW$YS would reirnbQJSe the Correctional Offlcel$ payllem 17 noted Highways and Corrections _gree that inmatespetforming serviCes under this agreement will not be employees of the State entitling them to any benefits such employees might have including but not limited to insurance worker oompensatlon benefits pension sick and anriualleave
9 The claimant submitted a Contract for Placement at a Work Release Center signed by the olalmant Thft contract stated that the clalmEmt understOOd and agreed that hls Initial WOrk assignment would be a maintenance type job at the work r81ease center Advancement to other work would be gradual and dependent upon his adjustment at the center and his performance Paragraph 9 atatedthet he agreed and understood that he was responsible for all his medical expenses he Incurred at the Center Further that before receIVing medical ~ttentlon except In an emergency he was to notify the Administrator of the problem and he was to report all prescriPtion medication that he had taken or possessed
10 The claimant submitted the claimanrs Corrections work release record excerpt spanning from November 26 2012 through April 19 2013 The excerpt showed the claimants destination on multiple dates On multiple dates the claimants destination was the Department of Highways (DOH) speclncally on March 28 2013 It
3
000005
William Crawford JCN 2014016722
was noted that his destination on March 28 2013 also Included CAMC General He was paroled on April 19 2013
11 The employer submitted the Work Release Status Master Furlough Agreement dated November 27 2012 The clalmant signed the Agreement In which It was noted that upon furlough he s aware that he was stili under the custody of the West Vlrgln~a DivislQn Qf CorrectlQns The agreement noted that furloughs were considered to be any time he was authorized leave from the Center including visiting with famlly Job seeking work and medical appolntment$ etc
I --------12-middot-The--cl-aJ-m-a-nt-s-ub-m--tte-d-th-e-C-o-nt-ra-c-t-o-r-P-lao-e-m-e-n-t-o-n-R-o-ad-c-II-ew-or-----r-
CommUnity Crew that he signed and dated November 27 2012 noting the claimant had been$Sl~ted for placement on a community workcrewOOH rpad crew It was noted that under item 9 all a~dents were to be reported in writing to the Department of Transportation and the Division of Corrections staff as soon middotas praCtical and uncler Item 20 that while working on a community crewDO road crew program 30 of all wages earned would be deducted from the inmates account for the payment of rent
13 The employer submitted the Financial Information Management System Invotce sheets and Insurance clalmfonns noting medical treatment for the clalmant spanning from MarCh 28 2013 thrQughApril 1$ 2013
14 The employer submitted the typed statement of Darrell Sigmon dated March 282013 Mr Sigmon stated that he and the work release crew were chipping tree bnlnches and the chlpPl)rs chute plllggacJ The Chlpperctlute was rad to remove the clog in the chute and then the motor was shut down The claimant was told by Mr stgmQn and another work release worker Rocky to stay olear of chipper but the claimant plac~ a stick Into the chipper The chipper drum was moving slOWly and it pulled the claimant~shand Into the chipper injuring his hand Mr Sigmon took the alimant to the ~ffice and stated his supervisor took him to CAMe - General
15 The employer submitted the handwritten statement of Rooky Parsons dated March 28 2013 Mr Parsons stated that the crew and the crew supervisor were running the chipper when the chute was plugged With debris He said the cl1lpper had J~ been Shut off and the blades disengaged when the claimant approached the chipper He said he and the supervisor told the claimant not to stick his hands In there ~cause the blades were $till turning He said that the claimant asked If the blades were stili tumlngand at the same time he stuck his hand In the blades The claimant had to be taken to the emerg~ncy room
16 Th claimant submitted the Outy Officer Report dlted March 28 2013 A phone call was received that claimant Inmate had been In an accident wherein his hand was caught In a wood splitter and he was befng sent to CAMC - General for treatment The Department of Highways supervisor would be calling or stopping by to glve an update as soon as possible The claimant had surgery on hIs left hand and ailS fingers
4
000006
JCN 20104016722bullWilliam Crawford
were repaired His pinky finger was broken He had surgery to repair ligament on March 30 2013 and that he would have another surgery at a later date
17 The claimant submitted the Division of CorrecUons Incident Report Which was signed by Darrell Sigmen and dated March 28 2013 It was noted that on March 28 2013 the Department of Highways crew was chipping branches beside the road The chipper had stopped up abou~ four tImes that day The chutemiddot door was open and the chipper was turned over snghtfy to let the debris out While this was being done the claimant pUt a stick Into the chipper pa~ of the machine Ttle chlppef was off but the blade was stili sfigMtyJuming and It Jerked the stick and the claimant did not let loose of It quick enough ihe report stated that the claimant had been warned not to get his hand near the chipper because the blade wa$ stili moving but he did It anyway
Attached to the report were medication formsllog$ noting di$pensatiQn of medications to the claimant on dates spanning from November 26 2012 through March 112013
18 The claimant submitted his statement dated April 4 2013 The claimant stated that the accident occurred on March 29 2013 while he was chipping brush along Corridor G The chipper WfJS not operating properly anCl clogged He said that there were some small vines and branches sticking out from the Chipper and he grabbed one and tried to pull It to shake the chipper free It pule~ his hand into the blades of the chipper He said he did not stick hIS hands Into the chipper
19 The claimant submitted photographs Some pictures depicted an Injured left hand with stitches down the palm and past the wrist WIth Injuries on the palm face of an fingers The ring Imd liltle finger were amp~tated around the proximal Interphalangeal Joints A few photos showed the hand with healed wounds but shoWIng the two partially amputated fingers and a rather long scar from the mid-palm area down past the wrist
20 The claimant submitted a FOIA response rrom the WV Division of Corrections dated December 10 2013 Policies and egrEtementa irade pursuant to W Va Code 25-7-14 and 16 and WVa Code 23-4-18 Were provided A policy of the DMsfpn of Correqtlons dated January 1 2004 was irl9luded which concerned procedures for managing inmate work crews assigned to Division of Highways (DoH) It atated that If an inmate were seriously Injured hetshe should be taken to an emergency room ind that medical treatment must be provided In a timely manner A Correctional Officer was to be assigned to each road crew and the Officer was responsible for ensuring the crew members work the proper safety eqUipment and DOH was to supply all safety equipment The Officer was to ensure all crew members attended all safety meetfngs scheduled by DOH A Policy dated May 1 2013 also noted an agreement between Corrections and DOH It also required a Correctional Officer be aSSigned to eaoh road orew and the Officer was to ensure orews work safety equipment and attended safety meetings DOH provided transportation from the job site back to DOH Accident procedures were discussed Inmates would be paid $580 per hour beginning
5
000007
JCN 2014016722 William Crawford
July 1 2013 Thereafter the rate would remain at eO of the federal minimum wage rate Corrections would establish acertified training course on chainsaw usemiddot to Inmates and only those trained would be permitted to use a chainsaw There was an agreement dated January 11 2000 between Division of Corrections and DOH regarding crews of Inmates iupplled to DOH Inmates fom Correctional Centers would be paid $150 per hour and Inmates from Work Release Centers and Beckley Correctional Cemer would be paid $450 per hour DOH would reimburse Corr~Uons at the rate of $218800 per m()nth per officer Correctl()ns would Invoice DOH for Inmate work performed The agreement stated that Inmates performing services were not empl()yenees of the state entitling them to any benefits such employees might have
---------rin-cl~middotInLgbut not limited to Insurance worker compensation benefltspension sick and annual leave Further Corrections would provide any medical care needed by inmates performing services An agreement dated April 26 2012 provJded Qo~jflollS fQl Corrections to supply Inmale crews to DOH Crews were not permitted to operate heavy motorlz~ equipment or anything larger than a riding lawn mower DOH was to provide safetY equipment Inmates from Correc(lonalCenters and Wortlt Camps Wculd be paid $150 per hour and inmates frOinWork Release Centers and BSCkleyand Ohio County CQfTeQtfonal Centers would be paid $450 per hour until June 30 2012 and then $5~20 beginning July 1 2012 and beginning July 1 2013 the rate Increased to $580 per hour beJng 80 of the federal minimum wage and It would rise and filII In accorclance with the federal minimum wage
21 The claimantsubmitted a Contract for Plaoement at a Work Release Center slgne~ by the claimant dated January 23 2014 The clalm_nt ~ at Pruntytown Correctional Center and was to be put on work release for a probationary 30-day period at Charleston Work Release Center The Contract concerned the verioUl requirements placed on the claimant and It stated that he was agreeing to be responsible for all medical expenses he Incurred while at the Center He also agreed that prfor to receiving medical attention except for an emergenoy he had to notify the Administrator
22 The claimant submitted the employerS answers to Interrogatories and requests for producUon of documents dated January 31 2014 The employer objected to the request of the number of work release inmates Injured during their work for the last five years and tl18 naeof the Injury and other Information The employer did not answer The employer also objected to the Interrogatory aSking whether any workers compensation benefits had been paid and the amount paid However the employer stated that it was unaware of any Inmate ever recelvlng workers compensation benefits for Injuries received while performing services for another state agency Further as wards of the state inmates who require medical care related to services they are providing for a state agency while under authority of the Department of Corrections are provided care through the Department of Corrections In respo088 to Whether the claimant was working for an approved WOrk release program at the time of Injury the employer said that he was under a contract for placement at a work release center and under a Contract for Placement on Road Crew or Community Crew agreement In accordance with a WV DOHIWV Olvlslon of Corrections Statewide Convict Workforce Agreement
e
000008
WIlliam Crawford JON 2014016722
23 The employer submitted an Affidavit of Betty Slack dated June 23 2014 Ms Slaok stated that $he was the Deputy Direclor of WV correctional Industries and had held the position since December 2009 She managed the Prison Industries Enhancement rPIEQ Program for Division of Corrections guided by west Virginia Code)
sectsect25--7-13 and 25-7-14 According to M$ Slack all PIE prograrns must be operated Within the prison setting but none have ever actually operated In West Virginia She said that none of the current Inmate work programs now operating are regulated by PIE
24 The claimant submitted II deposition transcript of Betty Slack dated December 18 2014 Ms Slack testified that she worked as the DeplID Director of the West Virginia Correctfonallnduitrles since 2009 She said she had production shops In the prison facilities that produced fumlture seating printing engraving mattr8$S88 and yarJous Q~er products and that she oversaw productl~ She ove~8$ emploYees both Inmate middotand civilian She sald that certain inmates would be cleared for work and that she could pick them from a list of workers She said there are some Inmate work from the Charleston Work Release that help load and unload trucks and do Janitorial Jobs They are paid hourly She said the Work Release workers are nearing a release from prison She said that the work~r Is not Pflid dlreotly~ the Charlast~ Work Release Center Is paid and It makes deductions for room and board and the rest Is put In the Inmat~ account She said the workers do not receive benefihi She was not familiar With the Charleston Work Release Program ~xceptmiddotth8t she got Inmate workers from thete when requested She noted that Jeff Stinnett is the administrator for the Charleston Work Release Center
25 The claimant submitted a transcript of the deposition of Jeff Stinnett dated february 5 2015 Mr Stlrmett statd that hI was the Administrator of the Charleston Work Release Center on Brooks Street in Charleston WV He stated that he had worked there since 1993~ He stated that he oversees dally operations of the facHlty which has capacity for slxtyslx He stated ~cd he recalled the claimant and that he signed a contract to go to the work release center Mr Stinnett stated that workers sometimes work for other state agencies ~esldes highways but DO H was the only one With a formalized agreement with corrections He stated that there were eligibility criteria for work release He said that some Inmates work at fast food restaurants grocery stores ancl factory work When worklrg In priv~te employment they are paid the same wages as their co-workersand have standard deductions from their pays such as FICA He stated that as far as he knew the private employers reported lhese workers wages for workers compensation purposes Every worker In private or agency work pays 5 dollars per day of their earnings to Corrections for maintenance and support The majority of rest goes Into a trustee ~ount that they receive once discharged but they can get a small amount weekly for basic needs Mr StJnneH stated that he recalled one other Individual injured while working on a Kanawha State Forest crew In the past He stated that there was a new regulation regarding the use of chalnsaws and the size of equipment inmates can operate but these were Highways rules and he was not familiar with them He stated that Corrections teaches chalnsaw training for the Inmate work but not for other equipment Mr Stinnett stated that Health
7
000009
WIlliam Crawford JON 2014016722
Right Is one place Inmates go If they need health oare Which Is billed on a sliding scale and many times is free for the Inmates
26 The claimant submitted a transcript of the deposition of Bobby Williams dated March 31 2015 At the beginning of the dep)$IUon cQunsel for the employer placed on the record an objection to the request for an e)(tenalon of time frame filed by claimants counsel The employer did nCit object to the deposition but did object to the extenslon for the purposes of keeping open the reoord In the protest Mr Williams sttedthat he was employed at the Charleston Work Release Center as a case manager and he Is the em~ment coordinator His duties Include assisting Inmates with parole paperwork and helping them look for work He stated that he recalled the claimant and that he was in an accident He stated that inmates were responslbte for seeking private employment He said he would talk to the inmates and ask If they wanted to work for Highways on a road crew He would look to see where the InmateS WOuld be released and ir It would be In the Charleston area It made $8nse to have them work In the commul1lty He stated that he was not aware of any other residents at his facility that were Injured while working for DOH He stated that he could not recall whether the claimant asked to work for DOH Mr Williams was aware that the claimant was to be paroled to Har~y County which is not within a driving distance for work In Charleston He said that sometimes they transfer Inmates to a work release center closer to where they will be paroled~
27 The claimant filed a clOsing arg~ment dated July 11 2014 The claimant argued that he was entHled to WQrk~rs compensation beneflt$ for an injury IIe received while he was In a prison work release program involving the Department of Highways (DOHiI) The claimant stated that he was seMog a period of confinement at the Charleston Work Release Center and was working for the DOH pursuant to a WQrk release agreement when he was Injured on March 28 2013 He stated that his hand was caught In a wood chipper and was mangled He was treat~d at CAMe where his medical 1)111 Were In excess of $90000 and were paid by the Department of Corrections The claimant said he partfallyamputated fingers of his left hand
Counsel for the clilmant stated that he hid not been ible to Identify the rules and regulations that applied to the Interagency employment of inmates He had found a policy dated August 12013 which postdated the claimants Injury and a work agreement that also postdated the Injury However a January 1 2004 poUcy was In effect at the time It governed the management of Inmate work crews for DOH and stated that In the event of a serious injury an Inmate was to be taken to an emergency room Further the policy Indicated that work release Inmates would have occa$lon to work In situations that may result in aCCidents and may require safety eqUipment There was also an agreement between Corrections and DOH dated April 26 2012 which stated the obligations of each agency for Inmate work crews This agreement provided for training by Corrections for the inmates to learn to safely operate ohalnsaws Further inmates were to be paid $450 per hour The claimant signed an agreement for work release when he was at Pruntytown
a
000010
WiUiam Crawford JCN 2014016722
Counsel noted that WVa Code sect23-4-1e(b) states
(b) Notwithstanding any provision of this code to the contrary no person confined in a state correctional f~iI~y or jail who suffers Injury or a disease In the eour$e of and resulting from his or her work during the period of confinement which work Is imposed by the admlntration of the state correctional facility or Jail and IS not suffered during the persons usual employment with his or her usual eMployer when not confined shall receive benefits under the provisions of this chapter for the InJUry or disease ProVIded That individuals otherwise QOIlftned In a state correctional facility or JaU or at a Juvenile services facility IInd working In a program authorized by sections fourteen or sixteen of article sevenchapter twenty-five of this code shall be eligible to receive benefits under the prov~Jons of this chapter while working In an authorized program The coverage for benefits may be obtained either by the prtvate entity or by agreernentwJth the state agency as specified In subsection (5) subsection (a) of sections fourteen and sixteen of artlc1e sevenchapter twenty-five of this code
Counsel also noted that WVa Code sect23-4-1e(b) referenced sect125-7-14 and 25shy7-16 which relate to a Prison Industry Enhancement (PIE) CertlflcIQn middotProgram Thus counsel said that there were two situatIons In whIch an Inmate is eligible for workersmiddot compensation benefits - working for PrISon Industries and working in the private sector pn work release The clamant argued thet there was no rational baels to discriminate betWeen prisoner classifications regarding workers compensation benefits The claimant was performing work that was of such nature that he could have done for a private employer He argued that there was no significant difference In status between the claimant and an inmate working for Prison Industries or placed in priVlllte employment who Is covered by workers compensation
Counsel noted significant differences between the 2012 agreement and earlier agreement$ The 2012 agreement provides that Inmates shall not operate equIpment larger than a riding lawn mower Further Inmates are not to use cnalnsaws WIthout special training Counsel argued that the hazardousness of operaUg wood Chippers Is shown In publications by OSHA
Citing state ex reI Boan vs Richardson 482 SE 2d 162 foNVa 1986) counsel argued that the Supreme Court of Appeals has held that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In similar circumstances and that any such statute violates the equal protection clause Art III Section 10 of the WVa Constltltlon The Court stated tJ1at It would look to whether the classlflcatlon was rational and based on social economIc historic or geographic factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally
9
000011
wiUlam Crawford JON 2014016722
The claimant argued that he was a member of a class of Incarcerated prisoners In which all persons are not treated equally Some of these workers are mandated to receive workers compensation and others are not The dlfferentiaUon between class members had nothing to do with the work performed 8$ he colfld have operated a wood chipper for a private employer Further placement In work Is not a function of anything other than availability of work so It middotIs a matter of chance or fate There was no rational basis on which to diSCriminate betwen Inmates W~rklng for Prison Indmries Working In private employment or working for a state agency The claimant argued that the denial of workers compensation to the claimant under these circumstances does not
_____--advance-LreasonablLgoveOlmemal--Dteresl_[bLretnedieLavallable_Jo_prlvaleyen-y--shyemployed inmates and state employed Inmates are different In that privately employ Inmet are coverd by workers CQmpensatl~n whereas those employed by a _e middotagencyrenot The onlymiddot remedy for astate employed InmatemiddotJsmiddota claim-under 42U$C 1983 for cruel and unusual punishment but this claim rqulres proof of deliberate jndlmrence middotto the hazard aOd this burden of proof Is eXtremely dlfllculttb meet Thus there are substantial dltterences In the remedies available to Inmates injured middoton the Job The ~almant also noted that Inmates engaged In work for the state re paid very low wag and had he been empfoyed by a PriVate employer he would have had benefit of workers compensation coverage
28 The employer filed a closing argument dated August 21 2014 Th employer argued that the ofalm was properly rejected because the clalmamiddotnl did not suffer an Injury In the course of and Ii result middotof covered employment The employer argued that the claimant was not an emplQyeeentiUed to workers compenSation ~ntlts Th employer noted ~hBt the Qlalrnant wa~ In~arcetated at the time of the Injury He was working on March 28 2013 on Corridor G for the Department of Highways when his hand was caught In a wood chipper He was nated at CAMe and his medical bills were paid by ttl Department of Corrections The employer felt that the circumstances of how the claimant became Injured were Irrelevant to compensability The employer stated that there was flO dispute that the claimant was performhig $8rvlces for DOH as part of his connnement at the Charleston Work Release Center He signed an agreement on November 27 2012 whkh was subject to a Contract for Placement at amiddot Work Release Center that he also signed His dUties with DOH were contingent on hlsmiddotContract for Placement on Road Crew or communitY Crew whIoh he signed on November 27 2012 The employer argued that according to documents raled to the agreement between the Department of Corrections and DOH Corrections would provide DOH with Inmates to perform dUUes for pOH The agreement outlined the terms and canditi~ related to the use of Inmate services and the compensation that Corrections would receive on behalf of the Inmates The agreement provided that the Inmates p$rforrrdog servfc~ under this agreement will not be employees of the State entitling them to any benefits such employees might have including but not limited to Insurance worker compensation benefits pensions sick and annual leaveII
The employer argued that the only wayan Inmate would be entiHed to workers compensation benefitS Is pursuant to placement In a program established under WVa Code sect25-7-14 or sect25-7-16 which apply to programs estabUshed to the federal Prison
10
000012
William Crawford JON 2014016722
Industry Enhancement (PIE) Certification Program The evidence shows that to date no such programs have ever existed and no DOCDOH road crew program Ie part of PIE
The employer argued that WVa Code sect23-2-1deflnea employer and sect 2~2-1a defines aemployeeD The employer argued that the claimant Is barred from receiving workers compensation benefits due to his status as an Incarcerated individual at the time of his injury because WVa Code sect23-4-1eb) provides that I[n)otwlthstandlng any provislcm of this code to the contrary no person confined hi a state correctional facility
____-----Dr_JaILwbo-suffersJnJWyen--DudlseaseJnJbeMursUlLand1uuJtlng1mmltlsoLhe( w~ork_____ during the period of confinement whiCh work Is Imposed by the ~dmlnlstratlon of the state correctional facility or Jail and is not suffered during the persons usual employment with his or her usUal employer when not conftnedshall receive benem under the provisions of thl~ chapter for the injury or d~ease
The employer argued that the code 8peclfie$ that an Inmate Is not entitled to workers compenSation If Injured while completing work imposed by the administration ofthe state correctional facility or jail However had he been working in a PIE program he would hav~ been enHtled to workers cC)mpensation beneflts The employer argued that tbe claimants closing argument confirmed this finding- but he argues that his constitutional rights have been violated In response the employer argued th~t the PIE program flowed out of federal leglslatlcm and (hat the clear and rational basis for the requirement that private employers provide workers compensation ooverage for Inmate employees under the Pie program is 80 no unfair advantage la given to the private employer
The employer argued that the olaimants constitutional argument falla and that his only recourse Is to petition the legislature for a change In the current law However the employer argued that any determination by the Court that all Inmates are entitled to workers compensation benefits would slgnlJlcantIy ImpaCt the states budget
29 The claimant flied a Reply to Closing Argument and Exhibits dated August 26 2014 The claimant clarified that his argument based upon the PIE program was based upon the employers affidavit Indicating that program Is dormant He stated that even If the PIE program had remained dormant this did not mean that Inmates were only empioyed by DOH and that statements by the Director of Division of Corrections and the Governors BUdget document clearly state that Inmates are employed In the private sector The claimant attached Exhibit A to this filing and he stated that In this attachment Mr Rubenstein stated that the majority of Inmates -e empoyed In fast food industry and restaurants The claimant again argued that there was a dlaparate treatment between inmates who work for the Department of transportation and those In any kind of private employment and this was a violation of the Canstltudan
30 The employer filed a Response to Closing Argument and exhibits dated September 9 2014 The employer argued that the claimants reply was submitted on
11
000013
WIUlam Crawford JCN 2014016722
August 26 2014 which was filed after the ten day prlod for case summation pursuant to WVa CSR sect 93~1-65 since the time frame expired on August 11 2014
The employer stated that the provlslons of Article 7 of Chapter 25 of the West Virginia Code were drafted to comply with 18 USC sect 1161 (c) the PIE program The federal legislation allOWS state andmiddot local prisons to be exempt from federal restrictions on prisoner-made goods entering Inte_te commerce and allOWS private individuals tn some clrcumst~mces to hire Inmates for production of goods However the Inmates must be paid similar wages 80 as not to allow a private Industry to obtilhlan unfair
------_advantagacomparecUO-the-prlva~sector~-ThaemployJtr--8tatedJbaUmgatiorLl8gamlng_______ 18 OSC sect 1761(0) Is cleaithal Its purpose Is to protect private businesses and that It was not enacted to protect Inmate workers The ernp~oyer cited McMaster v Minnesota 30 F3d 9679811994 US App Lexls 1861816 (8middot CIr Minn 1994)
31 The employer flied a Seoond Closing Argument ~ated MarQh 162015 The employer stated that the Issue was whether the claimant was entitled to receive workers compensation benems after sustainIng an injury while working for DIVIsion of HlghwaY$ on a work crew from the Chal1stQn Work Release Center The employer noted that the claimant signed a Maser Furlough Agreement on November 27 2012 He also signed a Contract for Placement at a Work Release Center His duties WIth DOH were contingent on a Contract for Placement on Road Crew or Community Crew which he signed on November 272012
The employer noted that there were agreements between Department of Corrections and Division of Highways regarding Inmate servk Neither DOH nor DOC conSidered the Inmate workers fo be employees and the contract stated that they were not employees of the State and not entitled to employee benefits Including degworker compens~lljon
The employer argued that the only conditions under which an Inmate is entitled to workers compensation benefits Is if he were placed In a Prison Industry Enhancement (PIE) Certification Program under WVa Codmiddote sect 25-7-14 or sect25-7-16 Ther have never been any PIE programs In West Virginia and so the claimant was not part of this program
The employer responded to the claimants argument that inmates employed in the private sector outside the PIE program and they are coved by workers compensation and thus the noncoverage for inmates such as the claimant Is unconstitutional The employer argued that Ms Slack testified that Correctional Industries operates about 17 production shops In which inmates work Some Inmates from the Charleston Work Release Center assist but none of the (nmates receive benefits Mr stinnett administrator of the Charleston Work Release Centertestlfled that there were criteria for Inmates to be placed at the Work Release Center and there was a running list of Inmates who desired placement When a bed opened an Inmate Is placed there He stated that about 45 Inmates work In private Industry rather than with
12
000014
William Crawford JCN 2014016722
the State The C~nter attempted to get private Jobs for inmates who would ultimately be released In Charleston so that they can continue to work when reJeased
The employer argued that the clalm_nt was barred from receiving workers compensation duetohts Incarceration at the time of his inJury pursuant to WVa Code sect23-4-1e The employer noted that PIE program Inmates are provided coverage by the private employer and that the purpose of this was to Implement federal regulations and protect private businesses from unfair competition Thus there is a clear and rational basis for dlff8f~mces between Inmates wC)fklng for private employers In a PIE program
32 The claimant filed a Supplemental Closing Argument dated March 20 2015 The claimant argued that the statutory framework regarding work- rajease and the provision of beneflt$ and the Implementation of the statute by the Department of Corrections violates the equal protection clause The claimant argued that not only do Inmates who woUld work under the PIE program Of ever Imptemerited) receive workers comperl$ation ~enet1ts but those who are released to work in the private sector receive workers compensation and other benefits The claImant argued that those who work for Department of Highways do not relieve the ame benfllsas those similrly situated Inmates whQ work In private sector jobs and this is discrimination with no reasonabie basis
33 Counsel for the claimant and the employer presented closing arguments at a hearlng on May 5 2015 Cou for the claimant _ated that the Issue was oompensabllityfor an Inmate Who Injured his hand while working for a Division of Highways crew while at a Work Release Center Counsel for the claimant cited State ex ret Boan VS Richardson 482 SE 2d 162 ~Va 1966) IInd argued that the SUpreme Court of Appeals ruled that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In slmUar circumstances and that any suqh statute violates the equal protectlcm clause Art IU SeCtion 10 of the WVa Constitution Counsel stated that had the claimant worked for a private employer he would have been covered j)y workers compensation There are no rules or regulaUons governing whether an Inmate works for DOH or a private employer Thus there Is no rational basiS for how they are assigned Underbn the elaimant argued he has been wrongfully dlscrfmlnated against
The employer stated that the claimant was barred frQm receiving workers compensatlc)O WVa Code sect23-4-1e(b) He was an Inmate subject to confinement and was not In a PIE program which Is an exception The participant Inmates are stUI Incarcerated While In the Work Release program The OOJ has no authority to decide the statute Is Constitutional The claimants remedy Is to convince the state legislature to change the statute Counsel for the employer stated that his mecilcal bills were covred by Department of Corrections Counsel argued that the OOJ must affirm the Order Counsel Indicated that once paroled the claimant was not eligible for further medIcal treatment to be paid by Department of Corrections
13
000015
William Crawford JCN 2014016722
DISCUSSION
This case Is before the OffIce of Judges based on a protest to the Order regarding tbe compensElbllltyof the claim W- Virgins Code -523-4-1 provides for benefits to employees who receive an Injury In the course of and as a result of their covered employment The more preci$e $Sue presented hre Is whether the claimant Is entitled to benefits for an InjJJry he received while he waS an inmate working on a crew pursuant to agreements between himselfi the Department of corrections and DMslon of Highways
i ---------------------------------------------------------------------~-
W Va Code sect23-4-1 9 provides that for all awards made on and after July 1 I 2003 the resolution of any Issue shall be ba~ upon a weighing of atl evldenoe pertelnlng -lothe Issue and a finding that8 preponderance of themiddot evidence supportsmiddot the chosen manner of resolution The process of weighing evld~nce $hall include ~ut not be limited to an assessmei1t of the r~lecC credlblRty materiality and rellabllty that the evidence possesses In the context of the Issue presented No Issue may be resolved by allOWing certain evidence to be diSpositive Simply because It Is reflable and Is mosJ favor-ble to a partys Intrests or position The resolution of Issues n claims for compensation must be decided on the merits and not according to any prinCiple that requir statut governing workers ~ompeJS~lon to be Ilb~rally conStrued because th~V are remedialili natute If after weighing all of the evidence regarding an Issue there Is a finding that an equal amount of evidentiary weight ~$ for each side the resoltiQcm that is most con$lstent With the claUnant$ position Will be adopted
Preponderence of the evldenQe means proof that $omethlng Is more likely 80 thail nbt ~o In other words a preponderance Of the evidence means such evidence when considered and compared with opposing evidence Is more pe~uaslve or convincing Pre~nderance of the evidence may not be determined by merely counting the number of witnesses reports evaluations or other items of evidence Rathermiddotft Is datennlned by assessing the persaslven8$Sof the evidence Includlng the opportUnity for knowledge Information possessed and manner of testifying or reporting
While working on a highway crew on March 282013 the claiment badly Injured his hand In a wood chipper While there are some variances In the claimants statements compared to witneamp$ statements about the particulars of the InJury none of those differences would change the outcome of this Decision and thus are not relevant to the discussion There Is no dispute that the claimant was Injured as a result of his work on the road crew while he was an inmate at the Charleston Work Release Centr His inJuries fe$ulted In surgery and hospitalization at CAMC where his medical bills In e)(cees of $90000 were paId by the Department of Corrections He was paroled soon after he was released from the hospital
The claim was rejected by an Order dated November 15 2013 which denied the application for benefits as it was determined that he did not sustain an Injury In the course of and resulting from his employment The claim administrators Investigation
14
000016
WilHam Crawford JON 2014016722
Inmates and that they must pay them the same wages non-Inmate workers and they must provide workers compensation coverage for them (See deposition of Jeff stinnett Administrator of the Charleston Work Release Center dated February 5 2015) Most of the private employment of Inmates 18 In fast food reurants grocery stores and factorieS Bobby WIlliams a case manager at the Charleston Work Release Center testified on March 31 2015 that he talked tolnmat~ to see If they wanted to work on a DOH crew He said that to m It made sense to place inmates In posiUons In the community In which they would be released The claimant was to be paroled to Hardy County which Is not within a driving distance to Charleston
The claimant argued that there were no rules or regJlations that would determine -shywhether an Inmate was placed In a private companymiddot or with DOH However this placement- would middotdetermln their fate If -they were InJured While on work refeaee Counsel for the claimant argued that this disparate treatment was discriminatory Counsel cited the West Virginia Supreme Court of Appeals holding In State ex ret Boan YS RlcIDardson 482 se 2d 162 ~va 1966) In which the court held that a workers compensation statute atfeQtlng economic rights may not be used to discriminate among a class of In~lvl~uals In similar circumstances and that any such statute violates the equal protection clause Art IU Section 10 of ttle WVa Constitution The Court stated that ~ would look to whe~her the classffication was rational and Qbased on socliil economic historic or geographIc factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally Id at 164 The claimant argued that he was a inmbar of Incarcerated prisoners in Which all persons weranot treated equally In that some qualified for workers compensation coverage and others did not
There Is no disagreement In this case that W Va Code sect23-4-1e(b) bars the claimant frC)O1 r~elpt of workers compensation benefltB The claimant argues that this law Is unconstltutlonal The Offlce of Judges Is not an Article III Court and does not have jurisdiction to rule a sttule is unconstitutional Therefore itmiddot1S found that the Order properly rejected the claim pursuant to W Va Code sect23-41e(b)
CONCWSlONS OF LAW
Pursuant to W Va Code sect23-4-1e(b) the claimant is ineligible to receive workers compensation benefits fer an Injury he received while In a Work Release Center performing work for Division of Highways In accordance With agreements with Department of Corrections
It Is therefore ORDERED that the Claim Administrators Order dated November 152013 be AFFIRMED
16
000017
William Crawford JON 2014016722
APPEAL RIGHTS
Under the provisions of WVa Code sect23-5-12 any aggrieved party may file a written appeal wlthlnthJrty (30) days after receipt of any decision or action of the Administrative Law Judge The appeal shall be filed ~Irectly with the Workrs Compensation Board of Review at PO Box 2828 Cha~eston WV 263~9
Date July 6bull 2015
RibcCca S CharI Administrative Law ludp
RSCQtc
cc WILUAM F CRAWFORD JOHN HENRY SKAGGS -COUNSEL FOR CLAIMANT DEPT OF CORRECTIONS-WORK RELEASE LISA WARNER HUNTER - COUNSEL FOR EMPLOYER AMERiCAN ZURICH INS CO
17
000018
William Crawford JCN 2014016722
JCN
Date
2014016722
July 6 2015
ReconJ Considered
The Clalmanfs protest to the Claims Administrators order Of regarding REJECTION OF CLAIM
November 15 2013
EVIDENCE SUBMITTED
Claimant Evidence
Document Type Not Specified Document Date 11112000 Submit Date 6Q012014 Author EMPlOYERICLAIMANT - WORK AGREEMENT
DoaIment Type NotSpepified Document Date 1112OQ4 Submit Date 612012014 Author WV DIVISIONS OF CORRECTIONS - POUCY
OIRECnVE
Document Type Not Specified Document Date 41112006 Submit Date 612012014 Author CHIPPERISHREDOER SAFElY - K-STATE
ARTICLE
Document Type Oocum~nt Dale Submit Date
Not Specified 41612008 612012014
18
000019
Willism Crawford JON 2014016722
Author HAZARDS OF WOOD CHIPPERS - OSHAOOV
Document Type Not-Specified Document Date 7112010 Submit Date 812612014 Author DIVISION OF CORRECTIONS-2010 EXECUTIVE BUDGET
STATEMENT
Document Type Not Specified-----DocumenrDste=------r71t212010----------------------- ----
Submit Date 812612014 Author NEWSPAPER ARTICLE~DEPTOF CORR~CTIONS
Document Type NotSpecified Oocument Date 412612012 Submit 08te612012014 Author CONVICT WORKFoRCE AGREEMENT
Document Type -Not Specifted Document pate 4I26J2012 Submit Date 812012014 Author CLAIMANT - CONTRACT FOR PLACEMENT
Document Type NotSpeCified [)(lcument Date 1112612012 Submit Date 1123i2014 Author WORK RELEASE RECORD (111261122-19-13)
Document Type Not Speclfjed Document Date 1112712012 Submit Date 112312014 Author CONTRACTIPLACEMENT ON ROADCOMMUNITV
CREW
Document Type Not Specified Document Date 312812013 Submit Date 112312014 Author DUTY OFFICER REPORT
Document Type Not Specified Document Date 32812013 Submit Date 1232014 Author INCIDENT REPORT WITH ATTACHED MEDICATION
FORMS
19
000020
William Crawford JCN2014016722
Document Type Not Specified Document Dale 4412013 Submit Date 112312014 Author WILLIAM CRAWFO~D ~ STATEMENT
Document Type Not Specified DocUment Dale 412512013 Submit Date 611912014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 121102013 Submit Date 1l23t014 Aulhor CLAIMANTS DEPT OF CORRECTIONS FILE
Document Type Not Specified Document Date 12312014 Submit Date 112312014 Author CLAIMANT - CONTRACT PLACEMENTIWORK RELEASE
CENTER-UNDATED
Document Type NotSpeclfied Document De 113112014 Submit Date 2412014 Author EMPLOYER INTERROGATORIES
Document Type Not Specified Document Date 62312014 Submit Date 012312014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 12118204 Submit Date 11412015 Author BETIY SLACKmiddot DEPOSITION
Document Type Not Specified Document Date 21512015 Submit Date 212612015 Author JEFF STINNETTmiddot DEPOSITION WIEXHIBiTS
Document Type Not Specified Document Date 313112015 Submit Date 412212015 Author BOBBY WILUAMS - DEPOSITION
20
000021
JCN 2014016722WlUlam Crawford
Emglgyer Evid8DC8
Document Type Npt Specified ------f)ocumentDate--tlf2mo2-------------------- shy
$lIbmiiOate 73112014 Author WORK RELEASE STATUS MASTER FURLOUGH
AGREEMENT
Document Type Not Sp~lfied Document Date 312812013 Submit Date 713112014 Author OFFICE OF WV AUDITORmiddot FINANCIAL INFO MANAGEMENT
SYSTEM INVOICE SHEETS
Document Type Not Specified Document Date 312812013 Subinlt Date 713112014 Author DARRELL SIGMON - STATEMENT
Document Type Not Specified Document Date 31282013 Submit Date 713112014 Author ROCKY pARSONSmiddot STATEMENT
D~umentType Not Specified Document Date 612312014 Submit Date 713112014 Author BETTY SLACKmiddot AFFIDAVIT
CLOSING ARGUMENTS
21
000022
WillIam Crawford
PalY Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted tettE3FDate Party Submitted Letter Date
STATE OF WEST VIRGINIA WORJ(IRS COMPENSATION OFFICE OF JUDGES
IN THE MATTER OF
William Crawford JCN 2014016722 CLAIMANT
001 32amp-13 itnd
Dept Q1 Correctlons-Work Release EMPLOYER
DECISION OF ADMINISTRATIVE LAW JUDGE
PARTIEI
Claimant WilllamCrawfordi by Counsel John Skaggs Employer Dept of Corrections-Work Release by Counsel Lisa Hunter
RUE
The claimant protested the Claim Administrators Order dated November 15 2013 which denied the appllcatfon for benefits
DECISIONj
It Is h$leby ORDERED that t~eCfalm Administrators Order dated November 15 2013 be AFFIRMED
ReCORD CONSIDERED
See attached Record Considered
FINDINGS OF FACT
1 The claim administrator issued an Order dated November 15 2013 which denied the application for benefits as it was determined that he did not sustain an injury In the course of and resulting from his employment based In part on review of the WC1 and Investigation The claim administrators Investigation found the claimant was not an employee as defined under WV Code 523-4-1 (a) but was an Inmate of the Department of Corrections The claimant protested the Order
2 The claimant submJtted the Work Agreement dated January 11 2000 The Agreement Is betWeen the West Virginia Department of Military Affairs and Public
000003
JCN 2014016722William Crawford
Safety Division of Corrections and the West Virginia Departmen~ of Transportation Division of Highways (Highways) slating that Inmate participation crews may be assigned to Division of Highways for road maintenance purposes DIVIsion of Corrections was to select participants and Highways personnel would determine crew needs and coordinate with Corrections facilities managers to obtain available inmate crews Crews were to be available for aworkday to begin at 730 am Highways would prQvlde transportation vehlcl8$ and tools for the Inmate crews Lunches would be provided by Corrections Thfi rate of pay ws to vary according to middotthestalus of the Inmate Inmates from Correction Centers would be paid $150 per hour and Inmates from Work Release Centers and Beckley Correctional Center would be paid $450 per
----------iCh-=ou=-=r=Irrt7-wa=-==sn=-=otEed--itChacittihe~raite=-=-=oi-f-=pa=y~wo=udldr-b-e--reTlmmiddotibur=s~edr-b-yLHrrlgdhwa-ys-------lnma~te------ -_ --shycrews utilized by Highways would remain under the control and authority of Corrections at aU tJme$ Sp$Qlflcally Item_ 17 nQt~ HlghwY$and Corrections agree that Highways Is acting as an agent of Corrections and that the inmates performing servlces under this agreement wUl not be employees of the State entitling them lo any i)enetlts such employees might have Including but not limited to Insurance Worker compensation benefits pension sick and annUailleave
3 The claimant submitted the State of West Virginia Division of CorrecHons Policy Directive dated January 1 2004 The polley stated lilt Is the policy of the West Virginia Division of CorrectIOns to maintain a mechanism that ensures procedures for the management of Inmate work crews assigned to the West Virginia Department of Transportation Dlvi$lon of HlghwaY It was noted that the Division ofHlghways WOUld reimburSe the DivisIon of Corrections for Inmate wages as wellmiddotas salary reimbUrsement of the Correctlon Officer The Policy stated that In the event an Inmate was severely Injured requiling medical attention at an Emergency Room th~ Dlvilion of Corr~lonamp supervisor would take necessary steps to ensure medical treatment was prOVided In a timely manner Further the Division of Corrections supervisor was to notify the institution or facility of the injury and the facUlty was to dispatch a second officer to assist If necessary
4 The claimant submitted the Kan~ State University report titled ChipperShredder Safety dated April 1 2006 Safe operating procedures are provided and the report wams of the dangers of wood chippers and It gives detailS of accidents that have occurred
5~ The claimant submitted the Osha report titled Hazards of Wood Chippers dated April 16 2008 The report stated that there had been 39 employees killed in chipper accidents from 1996--2005 Work practICes were dl~ussed
6 The claimant submitted an excerpt the DIVision of Corrections 2010 Executive Budget The pagemiddot submitted Includes a Mission statement In which is noted that its mission is to enhance public safety by providing a safe secure humane correctional system Including an effective community supervision program opportunities to prepare offenders for successful re-entry and sensitivity and responsiveness to victims of crime Several OperatiOns are listed Academy
2
000004
--JCN 2014016722 Willlam Crawford
ServicesStaff Training and Development Adult Offender SElrvlceamp Parole Supervision Services West Virginia Correction~1 Industries Work ReleaseCommunity-Based Corrections and Young Adult Center Under the work release section It was noted that the Division of Corrections provides inmate work crews to the Division Of Highways and other community agencies
7 The claimant submitted the newspaper artlole dated July 12 2010 from the Charleston Dally Mall This document was labeled Exhibit A The article Is In refere~e to a S~ial Sec~rity Administration report naming West VIrginia as one of eight stites that give p-rleoners p-erformtng data p-rocesslnllJoba af a correctional facUity ~ess to citizens private Information The Commissioner of the West Virginia Division of COrrections Jim Ruenstein said the Information was incorrect The article stated that prisoners working through a work release program might be able to view such data If a private employer were to show them However it was noted by the Commlssloner that the majOrity of the work release Inmates work In the fast foodshyindustry and not daia proceeslng
8 The claimant submitted the West Virginia Department of HlghwaysJWest Virginia DiVision of Correetions StateWide Convict WorkfOrce Agreement dated April 26 2012 The partles agreed that Corrections would make avaUable to HighwaYS a number of Inmate work creW$ and set forth gneral conditions noting HighWays was to reimburse Corrections for inmate pay HighWays WOuld be reampPQnsible for training transportation and tools AU inmate work crews would be sLJpervlsed by representative of Highways and when clasSIfication levels of Inmate required it CorreQtions would provide Correctional Officers for the pUrpO$8S of preventing an escape only and HfghW$YS would reirnbQJSe the Correctional Offlcel$ payllem 17 noted Highways and Corrections _gree that inmatespetforming serviCes under this agreement will not be employees of the State entitling them to any benefits such employees might have including but not limited to insurance worker oompensatlon benefits pension sick and anriualleave
9 The claimant submitted a Contract for Placement at a Work Release Center signed by the olalmant Thft contract stated that the clalmEmt understOOd and agreed that hls Initial WOrk assignment would be a maintenance type job at the work r81ease center Advancement to other work would be gradual and dependent upon his adjustment at the center and his performance Paragraph 9 atatedthet he agreed and understood that he was responsible for all his medical expenses he Incurred at the Center Further that before receIVing medical ~ttentlon except In an emergency he was to notify the Administrator of the problem and he was to report all prescriPtion medication that he had taken or possessed
10 The claimant submitted the claimanrs Corrections work release record excerpt spanning from November 26 2012 through April 19 2013 The excerpt showed the claimants destination on multiple dates On multiple dates the claimants destination was the Department of Highways (DOH) speclncally on March 28 2013 It
3
000005
William Crawford JCN 2014016722
was noted that his destination on March 28 2013 also Included CAMC General He was paroled on April 19 2013
11 The employer submitted the Work Release Status Master Furlough Agreement dated November 27 2012 The clalmant signed the Agreement In which It was noted that upon furlough he s aware that he was stili under the custody of the West Vlrgln~a DivislQn Qf CorrectlQns The agreement noted that furloughs were considered to be any time he was authorized leave from the Center including visiting with famlly Job seeking work and medical appolntment$ etc
I --------12-middot-The--cl-aJ-m-a-nt-s-ub-m--tte-d-th-e-C-o-nt-ra-c-t-o-r-P-lao-e-m-e-n-t-o-n-R-o-ad-c-II-ew-or-----r-
CommUnity Crew that he signed and dated November 27 2012 noting the claimant had been$Sl~ted for placement on a community workcrewOOH rpad crew It was noted that under item 9 all a~dents were to be reported in writing to the Department of Transportation and the Division of Corrections staff as soon middotas praCtical and uncler Item 20 that while working on a community crewDO road crew program 30 of all wages earned would be deducted from the inmates account for the payment of rent
13 The employer submitted the Financial Information Management System Invotce sheets and Insurance clalmfonns noting medical treatment for the clalmant spanning from MarCh 28 2013 thrQughApril 1$ 2013
14 The employer submitted the typed statement of Darrell Sigmon dated March 282013 Mr Sigmon stated that he and the work release crew were chipping tree bnlnches and the chlpPl)rs chute plllggacJ The Chlpperctlute was rad to remove the clog in the chute and then the motor was shut down The claimant was told by Mr stgmQn and another work release worker Rocky to stay olear of chipper but the claimant plac~ a stick Into the chipper The chipper drum was moving slOWly and it pulled the claimant~shand Into the chipper injuring his hand Mr Sigmon took the alimant to the ~ffice and stated his supervisor took him to CAMe - General
15 The employer submitted the handwritten statement of Rooky Parsons dated March 28 2013 Mr Parsons stated that the crew and the crew supervisor were running the chipper when the chute was plugged With debris He said the cl1lpper had J~ been Shut off and the blades disengaged when the claimant approached the chipper He said he and the supervisor told the claimant not to stick his hands In there ~cause the blades were $till turning He said that the claimant asked If the blades were stili tumlngand at the same time he stuck his hand In the blades The claimant had to be taken to the emerg~ncy room
16 Th claimant submitted the Outy Officer Report dlted March 28 2013 A phone call was received that claimant Inmate had been In an accident wherein his hand was caught In a wood splitter and he was befng sent to CAMC - General for treatment The Department of Highways supervisor would be calling or stopping by to glve an update as soon as possible The claimant had surgery on hIs left hand and ailS fingers
4
000006
JCN 20104016722bullWilliam Crawford
were repaired His pinky finger was broken He had surgery to repair ligament on March 30 2013 and that he would have another surgery at a later date
17 The claimant submitted the Division of CorrecUons Incident Report Which was signed by Darrell Sigmen and dated March 28 2013 It was noted that on March 28 2013 the Department of Highways crew was chipping branches beside the road The chipper had stopped up abou~ four tImes that day The chutemiddot door was open and the chipper was turned over snghtfy to let the debris out While this was being done the claimant pUt a stick Into the chipper pa~ of the machine Ttle chlppef was off but the blade was stili sfigMtyJuming and It Jerked the stick and the claimant did not let loose of It quick enough ihe report stated that the claimant had been warned not to get his hand near the chipper because the blade wa$ stili moving but he did It anyway
Attached to the report were medication formsllog$ noting di$pensatiQn of medications to the claimant on dates spanning from November 26 2012 through March 112013
18 The claimant submitted his statement dated April 4 2013 The claimant stated that the accident occurred on March 29 2013 while he was chipping brush along Corridor G The chipper WfJS not operating properly anCl clogged He said that there were some small vines and branches sticking out from the Chipper and he grabbed one and tried to pull It to shake the chipper free It pule~ his hand into the blades of the chipper He said he did not stick hIS hands Into the chipper
19 The claimant submitted photographs Some pictures depicted an Injured left hand with stitches down the palm and past the wrist WIth Injuries on the palm face of an fingers The ring Imd liltle finger were amp~tated around the proximal Interphalangeal Joints A few photos showed the hand with healed wounds but shoWIng the two partially amputated fingers and a rather long scar from the mid-palm area down past the wrist
20 The claimant submitted a FOIA response rrom the WV Division of Corrections dated December 10 2013 Policies and egrEtementa irade pursuant to W Va Code 25-7-14 and 16 and WVa Code 23-4-18 Were provided A policy of the DMsfpn of Correqtlons dated January 1 2004 was irl9luded which concerned procedures for managing inmate work crews assigned to Division of Highways (DoH) It atated that If an inmate were seriously Injured hetshe should be taken to an emergency room ind that medical treatment must be provided In a timely manner A Correctional Officer was to be assigned to each road crew and the Officer was responsible for ensuring the crew members work the proper safety eqUipment and DOH was to supply all safety equipment The Officer was to ensure all crew members attended all safety meetfngs scheduled by DOH A Policy dated May 1 2013 also noted an agreement between Corrections and DOH It also required a Correctional Officer be aSSigned to eaoh road orew and the Officer was to ensure orews work safety equipment and attended safety meetings DOH provided transportation from the job site back to DOH Accident procedures were discussed Inmates would be paid $580 per hour beginning
5
000007
JCN 2014016722 William Crawford
July 1 2013 Thereafter the rate would remain at eO of the federal minimum wage rate Corrections would establish acertified training course on chainsaw usemiddot to Inmates and only those trained would be permitted to use a chainsaw There was an agreement dated January 11 2000 between Division of Corrections and DOH regarding crews of Inmates iupplled to DOH Inmates fom Correctional Centers would be paid $150 per hour and Inmates from Work Release Centers and Beckley Correctional Cemer would be paid $450 per hour DOH would reimburse Corr~Uons at the rate of $218800 per m()nth per officer Correctl()ns would Invoice DOH for Inmate work performed The agreement stated that Inmates performing services were not empl()yenees of the state entitling them to any benefits such employees might have
---------rin-cl~middotInLgbut not limited to Insurance worker compensation benefltspension sick and annual leave Further Corrections would provide any medical care needed by inmates performing services An agreement dated April 26 2012 provJded Qo~jflollS fQl Corrections to supply Inmale crews to DOH Crews were not permitted to operate heavy motorlz~ equipment or anything larger than a riding lawn mower DOH was to provide safetY equipment Inmates from Correc(lonalCenters and Wortlt Camps Wculd be paid $150 per hour and inmates frOinWork Release Centers and BSCkleyand Ohio County CQfTeQtfonal Centers would be paid $450 per hour until June 30 2012 and then $5~20 beginning July 1 2012 and beginning July 1 2013 the rate Increased to $580 per hour beJng 80 of the federal minimum wage and It would rise and filII In accorclance with the federal minimum wage
21 The claimantsubmitted a Contract for Plaoement at a Work Release Center slgne~ by the claimant dated January 23 2014 The clalm_nt ~ at Pruntytown Correctional Center and was to be put on work release for a probationary 30-day period at Charleston Work Release Center The Contract concerned the verioUl requirements placed on the claimant and It stated that he was agreeing to be responsible for all medical expenses he Incurred while at the Center He also agreed that prfor to receiving medical attention except for an emergenoy he had to notify the Administrator
22 The claimant submitted the employerS answers to Interrogatories and requests for producUon of documents dated January 31 2014 The employer objected to the request of the number of work release inmates Injured during their work for the last five years and tl18 naeof the Injury and other Information The employer did not answer The employer also objected to the Interrogatory aSking whether any workers compensation benefits had been paid and the amount paid However the employer stated that it was unaware of any Inmate ever recelvlng workers compensation benefits for Injuries received while performing services for another state agency Further as wards of the state inmates who require medical care related to services they are providing for a state agency while under authority of the Department of Corrections are provided care through the Department of Corrections In respo088 to Whether the claimant was working for an approved WOrk release program at the time of Injury the employer said that he was under a contract for placement at a work release center and under a Contract for Placement on Road Crew or Community Crew agreement In accordance with a WV DOHIWV Olvlslon of Corrections Statewide Convict Workforce Agreement
e
000008
WIlliam Crawford JON 2014016722
23 The employer submitted an Affidavit of Betty Slack dated June 23 2014 Ms Slaok stated that $he was the Deputy Direclor of WV correctional Industries and had held the position since December 2009 She managed the Prison Industries Enhancement rPIEQ Program for Division of Corrections guided by west Virginia Code)
sectsect25--7-13 and 25-7-14 According to M$ Slack all PIE prograrns must be operated Within the prison setting but none have ever actually operated In West Virginia She said that none of the current Inmate work programs now operating are regulated by PIE
24 The claimant submitted II deposition transcript of Betty Slack dated December 18 2014 Ms Slack testified that she worked as the DeplID Director of the West Virginia Correctfonallnduitrles since 2009 She said she had production shops In the prison facilities that produced fumlture seating printing engraving mattr8$S88 and yarJous Q~er products and that she oversaw productl~ She ove~8$ emploYees both Inmate middotand civilian She sald that certain inmates would be cleared for work and that she could pick them from a list of workers She said there are some Inmate work from the Charleston Work Release that help load and unload trucks and do Janitorial Jobs They are paid hourly She said the Work Release workers are nearing a release from prison She said that the work~r Is not Pflid dlreotly~ the Charlast~ Work Release Center Is paid and It makes deductions for room and board and the rest Is put In the Inmat~ account She said the workers do not receive benefihi She was not familiar With the Charleston Work Release Program ~xceptmiddotth8t she got Inmate workers from thete when requested She noted that Jeff Stinnett is the administrator for the Charleston Work Release Center
25 The claimant submitted a transcript of the deposition of Jeff Stinnett dated february 5 2015 Mr Stlrmett statd that hI was the Administrator of the Charleston Work Release Center on Brooks Street in Charleston WV He stated that he had worked there since 1993~ He stated that he oversees dally operations of the facHlty which has capacity for slxtyslx He stated ~cd he recalled the claimant and that he signed a contract to go to the work release center Mr Stinnett stated that workers sometimes work for other state agencies ~esldes highways but DO H was the only one With a formalized agreement with corrections He stated that there were eligibility criteria for work release He said that some Inmates work at fast food restaurants grocery stores ancl factory work When worklrg In priv~te employment they are paid the same wages as their co-workersand have standard deductions from their pays such as FICA He stated that as far as he knew the private employers reported lhese workers wages for workers compensation purposes Every worker In private or agency work pays 5 dollars per day of their earnings to Corrections for maintenance and support The majority of rest goes Into a trustee ~ount that they receive once discharged but they can get a small amount weekly for basic needs Mr StJnneH stated that he recalled one other Individual injured while working on a Kanawha State Forest crew In the past He stated that there was a new regulation regarding the use of chalnsaws and the size of equipment inmates can operate but these were Highways rules and he was not familiar with them He stated that Corrections teaches chalnsaw training for the Inmate work but not for other equipment Mr Stinnett stated that Health
7
000009
WIlliam Crawford JON 2014016722
Right Is one place Inmates go If they need health oare Which Is billed on a sliding scale and many times is free for the Inmates
26 The claimant submitted a transcript of the deposition of Bobby Williams dated March 31 2015 At the beginning of the dep)$IUon cQunsel for the employer placed on the record an objection to the request for an e)(tenalon of time frame filed by claimants counsel The employer did nCit object to the deposition but did object to the extenslon for the purposes of keeping open the reoord In the protest Mr Williams sttedthat he was employed at the Charleston Work Release Center as a case manager and he Is the em~ment coordinator His duties Include assisting Inmates with parole paperwork and helping them look for work He stated that he recalled the claimant and that he was in an accident He stated that inmates were responslbte for seeking private employment He said he would talk to the inmates and ask If they wanted to work for Highways on a road crew He would look to see where the InmateS WOuld be released and ir It would be In the Charleston area It made $8nse to have them work In the commul1lty He stated that he was not aware of any other residents at his facility that were Injured while working for DOH He stated that he could not recall whether the claimant asked to work for DOH Mr Williams was aware that the claimant was to be paroled to Har~y County which is not within a driving distance for work In Charleston He said that sometimes they transfer Inmates to a work release center closer to where they will be paroled~
27 The claimant filed a clOsing arg~ment dated July 11 2014 The claimant argued that he was entHled to WQrk~rs compensation beneflt$ for an injury IIe received while he was In a prison work release program involving the Department of Highways (DOHiI) The claimant stated that he was seMog a period of confinement at the Charleston Work Release Center and was working for the DOH pursuant to a WQrk release agreement when he was Injured on March 28 2013 He stated that his hand was caught In a wood chipper and was mangled He was treat~d at CAMe where his medical 1)111 Were In excess of $90000 and were paid by the Department of Corrections The claimant said he partfallyamputated fingers of his left hand
Counsel for the clilmant stated that he hid not been ible to Identify the rules and regulations that applied to the Interagency employment of inmates He had found a policy dated August 12013 which postdated the claimants Injury and a work agreement that also postdated the Injury However a January 1 2004 poUcy was In effect at the time It governed the management of Inmate work crews for DOH and stated that In the event of a serious injury an Inmate was to be taken to an emergency room Further the policy Indicated that work release Inmates would have occa$lon to work In situations that may result in aCCidents and may require safety eqUipment There was also an agreement between Corrections and DOH dated April 26 2012 which stated the obligations of each agency for Inmate work crews This agreement provided for training by Corrections for the inmates to learn to safely operate ohalnsaws Further inmates were to be paid $450 per hour The claimant signed an agreement for work release when he was at Pruntytown
a
000010
WiUiam Crawford JCN 2014016722
Counsel noted that WVa Code sect23-4-1e(b) states
(b) Notwithstanding any provision of this code to the contrary no person confined in a state correctional f~iI~y or jail who suffers Injury or a disease In the eour$e of and resulting from his or her work during the period of confinement which work Is imposed by the admlntration of the state correctional facility or Jail and IS not suffered during the persons usual employment with his or her usual eMployer when not confined shall receive benefits under the provisions of this chapter for the InJUry or disease ProVIded That individuals otherwise QOIlftned In a state correctional facility or JaU or at a Juvenile services facility IInd working In a program authorized by sections fourteen or sixteen of article sevenchapter twenty-five of this code shall be eligible to receive benefits under the prov~Jons of this chapter while working In an authorized program The coverage for benefits may be obtained either by the prtvate entity or by agreernentwJth the state agency as specified In subsection (5) subsection (a) of sections fourteen and sixteen of artlc1e sevenchapter twenty-five of this code
Counsel also noted that WVa Code sect23-4-1e(b) referenced sect125-7-14 and 25shy7-16 which relate to a Prison Industry Enhancement (PIE) CertlflcIQn middotProgram Thus counsel said that there were two situatIons In whIch an Inmate is eligible for workersmiddot compensation benefits - working for PrISon Industries and working in the private sector pn work release The clamant argued thet there was no rational baels to discriminate betWeen prisoner classifications regarding workers compensation benefits The claimant was performing work that was of such nature that he could have done for a private employer He argued that there was no significant difference In status between the claimant and an inmate working for Prison Industries or placed in priVlllte employment who Is covered by workers compensation
Counsel noted significant differences between the 2012 agreement and earlier agreement$ The 2012 agreement provides that Inmates shall not operate equIpment larger than a riding lawn mower Further Inmates are not to use cnalnsaws WIthout special training Counsel argued that the hazardousness of operaUg wood Chippers Is shown In publications by OSHA
Citing state ex reI Boan vs Richardson 482 SE 2d 162 foNVa 1986) counsel argued that the Supreme Court of Appeals has held that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In similar circumstances and that any such statute violates the equal protection clause Art III Section 10 of the WVa Constltltlon The Court stated tJ1at It would look to whether the classlflcatlon was rational and based on social economIc historic or geographic factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally
9
000011
wiUlam Crawford JON 2014016722
The claimant argued that he was a member of a class of Incarcerated prisoners In which all persons are not treated equally Some of these workers are mandated to receive workers compensation and others are not The dlfferentiaUon between class members had nothing to do with the work performed 8$ he colfld have operated a wood chipper for a private employer Further placement In work Is not a function of anything other than availability of work so It middotIs a matter of chance or fate There was no rational basis on which to diSCriminate betwen Inmates W~rklng for Prison Indmries Working In private employment or working for a state agency The claimant argued that the denial of workers compensation to the claimant under these circumstances does not
_____--advance-LreasonablLgoveOlmemal--Dteresl_[bLretnedieLavallable_Jo_prlvaleyen-y--shyemployed inmates and state employed Inmates are different In that privately employ Inmet are coverd by workers CQmpensatl~n whereas those employed by a _e middotagencyrenot The onlymiddot remedy for astate employed InmatemiddotJsmiddota claim-under 42U$C 1983 for cruel and unusual punishment but this claim rqulres proof of deliberate jndlmrence middotto the hazard aOd this burden of proof Is eXtremely dlfllculttb meet Thus there are substantial dltterences In the remedies available to Inmates injured middoton the Job The ~almant also noted that Inmates engaged In work for the state re paid very low wag and had he been empfoyed by a PriVate employer he would have had benefit of workers compensation coverage
28 The employer filed a closing argument dated August 21 2014 Th employer argued that the ofalm was properly rejected because the clalmamiddotnl did not suffer an Injury In the course of and Ii result middotof covered employment The employer argued that the claimant was not an emplQyeeentiUed to workers compenSation ~ntlts Th employer noted ~hBt the Qlalrnant wa~ In~arcetated at the time of the Injury He was working on March 28 2013 on Corridor G for the Department of Highways when his hand was caught In a wood chipper He was nated at CAMe and his medical bills were paid by ttl Department of Corrections The employer felt that the circumstances of how the claimant became Injured were Irrelevant to compensability The employer stated that there was flO dispute that the claimant was performhig $8rvlces for DOH as part of his connnement at the Charleston Work Release Center He signed an agreement on November 27 2012 whkh was subject to a Contract for Placement at amiddot Work Release Center that he also signed His dUties with DOH were contingent on hlsmiddotContract for Placement on Road Crew or communitY Crew whIoh he signed on November 27 2012 The employer argued that according to documents raled to the agreement between the Department of Corrections and DOH Corrections would provide DOH with Inmates to perform dUUes for pOH The agreement outlined the terms and canditi~ related to the use of Inmate services and the compensation that Corrections would receive on behalf of the Inmates The agreement provided that the Inmates p$rforrrdog servfc~ under this agreement will not be employees of the State entitling them to any benefits such employees might have including but not limited to Insurance worker compensation benefits pensions sick and annual leaveII
The employer argued that the only wayan Inmate would be entiHed to workers compensation benefitS Is pursuant to placement In a program established under WVa Code sect25-7-14 or sect25-7-16 which apply to programs estabUshed to the federal Prison
10
000012
William Crawford JON 2014016722
Industry Enhancement (PIE) Certification Program The evidence shows that to date no such programs have ever existed and no DOCDOH road crew program Ie part of PIE
The employer argued that WVa Code sect23-2-1deflnea employer and sect 2~2-1a defines aemployeeD The employer argued that the claimant Is barred from receiving workers compensation benefits due to his status as an Incarcerated individual at the time of his injury because WVa Code sect23-4-1eb) provides that I[n)otwlthstandlng any provislcm of this code to the contrary no person confined hi a state correctional facility
____-----Dr_JaILwbo-suffersJnJWyen--DudlseaseJnJbeMursUlLand1uuJtlng1mmltlsoLhe( w~ork_____ during the period of confinement whiCh work Is Imposed by the ~dmlnlstratlon of the state correctional facility or Jail and is not suffered during the persons usual employment with his or her usUal employer when not conftnedshall receive benem under the provisions of thl~ chapter for the injury or d~ease
The employer argued that the code 8peclfie$ that an Inmate Is not entitled to workers compenSation If Injured while completing work imposed by the administration ofthe state correctional facility or jail However had he been working in a PIE program he would hav~ been enHtled to workers cC)mpensation beneflts The employer argued that tbe claimants closing argument confirmed this finding- but he argues that his constitutional rights have been violated In response the employer argued th~t the PIE program flowed out of federal leglslatlcm and (hat the clear and rational basis for the requirement that private employers provide workers compensation ooverage for Inmate employees under the Pie program is 80 no unfair advantage la given to the private employer
The employer argued that the olaimants constitutional argument falla and that his only recourse Is to petition the legislature for a change In the current law However the employer argued that any determination by the Court that all Inmates are entitled to workers compensation benefits would slgnlJlcantIy ImpaCt the states budget
29 The claimant flied a Reply to Closing Argument and Exhibits dated August 26 2014 The claimant clarified that his argument based upon the PIE program was based upon the employers affidavit Indicating that program Is dormant He stated that even If the PIE program had remained dormant this did not mean that Inmates were only empioyed by DOH and that statements by the Director of Division of Corrections and the Governors BUdget document clearly state that Inmates are employed In the private sector The claimant attached Exhibit A to this filing and he stated that In this attachment Mr Rubenstein stated that the majority of Inmates -e empoyed In fast food industry and restaurants The claimant again argued that there was a dlaparate treatment between inmates who work for the Department of transportation and those In any kind of private employment and this was a violation of the Canstltudan
30 The employer filed a Response to Closing Argument and exhibits dated September 9 2014 The employer argued that the claimants reply was submitted on
11
000013
WIUlam Crawford JCN 2014016722
August 26 2014 which was filed after the ten day prlod for case summation pursuant to WVa CSR sect 93~1-65 since the time frame expired on August 11 2014
The employer stated that the provlslons of Article 7 of Chapter 25 of the West Virginia Code were drafted to comply with 18 USC sect 1161 (c) the PIE program The federal legislation allOWS state andmiddot local prisons to be exempt from federal restrictions on prisoner-made goods entering Inte_te commerce and allOWS private individuals tn some clrcumst~mces to hire Inmates for production of goods However the Inmates must be paid similar wages 80 as not to allow a private Industry to obtilhlan unfair
------_advantagacomparecUO-the-prlva~sector~-ThaemployJtr--8tatedJbaUmgatiorLl8gamlng_______ 18 OSC sect 1761(0) Is cleaithal Its purpose Is to protect private businesses and that It was not enacted to protect Inmate workers The ernp~oyer cited McMaster v Minnesota 30 F3d 9679811994 US App Lexls 1861816 (8middot CIr Minn 1994)
31 The employer flied a Seoond Closing Argument ~ated MarQh 162015 The employer stated that the Issue was whether the claimant was entitled to receive workers compensation benems after sustainIng an injury while working for DIVIsion of HlghwaY$ on a work crew from the Chal1stQn Work Release Center The employer noted that the claimant signed a Maser Furlough Agreement on November 27 2012 He also signed a Contract for Placement at a Work Release Center His duties WIth DOH were contingent on a Contract for Placement on Road Crew or Community Crew which he signed on November 272012
The employer noted that there were agreements between Department of Corrections and Division of Highways regarding Inmate servk Neither DOH nor DOC conSidered the Inmate workers fo be employees and the contract stated that they were not employees of the State and not entitled to employee benefits Including degworker compens~lljon
The employer argued that the only conditions under which an Inmate is entitled to workers compensation benefits Is if he were placed In a Prison Industry Enhancement (PIE) Certification Program under WVa Codmiddote sect 25-7-14 or sect25-7-16 Ther have never been any PIE programs In West Virginia and so the claimant was not part of this program
The employer responded to the claimants argument that inmates employed in the private sector outside the PIE program and they are coved by workers compensation and thus the noncoverage for inmates such as the claimant Is unconstitutional The employer argued that Ms Slack testified that Correctional Industries operates about 17 production shops In which inmates work Some Inmates from the Charleston Work Release Center assist but none of the (nmates receive benefits Mr stinnett administrator of the Charleston Work Release Centertestlfled that there were criteria for Inmates to be placed at the Work Release Center and there was a running list of Inmates who desired placement When a bed opened an Inmate Is placed there He stated that about 45 Inmates work In private Industry rather than with
12
000014
William Crawford JCN 2014016722
the State The C~nter attempted to get private Jobs for inmates who would ultimately be released In Charleston so that they can continue to work when reJeased
The employer argued that the clalm_nt was barred from receiving workers compensation duetohts Incarceration at the time of his inJury pursuant to WVa Code sect23-4-1e The employer noted that PIE program Inmates are provided coverage by the private employer and that the purpose of this was to Implement federal regulations and protect private businesses from unfair competition Thus there is a clear and rational basis for dlff8f~mces between Inmates wC)fklng for private employers In a PIE program
32 The claimant filed a Supplemental Closing Argument dated March 20 2015 The claimant argued that the statutory framework regarding work- rajease and the provision of beneflt$ and the Implementation of the statute by the Department of Corrections violates the equal protection clause The claimant argued that not only do Inmates who woUld work under the PIE program Of ever Imptemerited) receive workers comperl$ation ~enet1ts but those who are released to work in the private sector receive workers compensation and other benefits The claImant argued that those who work for Department of Highways do not relieve the ame benfllsas those similrly situated Inmates whQ work In private sector jobs and this is discrimination with no reasonabie basis
33 Counsel for the claimant and the employer presented closing arguments at a hearlng on May 5 2015 Cou for the claimant _ated that the Issue was oompensabllityfor an Inmate Who Injured his hand while working for a Division of Highways crew while at a Work Release Center Counsel for the claimant cited State ex ret Boan VS Richardson 482 SE 2d 162 ~Va 1966) IInd argued that the SUpreme Court of Appeals ruled that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In slmUar circumstances and that any suqh statute violates the equal protectlcm clause Art IU SeCtion 10 of the WVa Constitution Counsel stated that had the claimant worked for a private employer he would have been covered j)y workers compensation There are no rules or regulaUons governing whether an Inmate works for DOH or a private employer Thus there Is no rational basiS for how they are assigned Underbn the elaimant argued he has been wrongfully dlscrfmlnated against
The employer stated that the claimant was barred frQm receiving workers compensatlc)O WVa Code sect23-4-1e(b) He was an Inmate subject to confinement and was not In a PIE program which Is an exception The participant Inmates are stUI Incarcerated While In the Work Release program The OOJ has no authority to decide the statute Is Constitutional The claimants remedy Is to convince the state legislature to change the statute Counsel for the employer stated that his mecilcal bills were covred by Department of Corrections Counsel argued that the OOJ must affirm the Order Counsel Indicated that once paroled the claimant was not eligible for further medIcal treatment to be paid by Department of Corrections
13
000015
William Crawford JCN 2014016722
DISCUSSION
This case Is before the OffIce of Judges based on a protest to the Order regarding tbe compensElbllltyof the claim W- Virgins Code -523-4-1 provides for benefits to employees who receive an Injury In the course of and as a result of their covered employment The more preci$e $Sue presented hre Is whether the claimant Is entitled to benefits for an InjJJry he received while he waS an inmate working on a crew pursuant to agreements between himselfi the Department of corrections and DMslon of Highways
i ---------------------------------------------------------------------~-
W Va Code sect23-4-1 9 provides that for all awards made on and after July 1 I 2003 the resolution of any Issue shall be ba~ upon a weighing of atl evldenoe pertelnlng -lothe Issue and a finding that8 preponderance of themiddot evidence supportsmiddot the chosen manner of resolution The process of weighing evld~nce $hall include ~ut not be limited to an assessmei1t of the r~lecC credlblRty materiality and rellabllty that the evidence possesses In the context of the Issue presented No Issue may be resolved by allOWing certain evidence to be diSpositive Simply because It Is reflable and Is mosJ favor-ble to a partys Intrests or position The resolution of Issues n claims for compensation must be decided on the merits and not according to any prinCiple that requir statut governing workers ~ompeJS~lon to be Ilb~rally conStrued because th~V are remedialili natute If after weighing all of the evidence regarding an Issue there Is a finding that an equal amount of evidentiary weight ~$ for each side the resoltiQcm that is most con$lstent With the claUnant$ position Will be adopted
Preponderence of the evldenQe means proof that $omethlng Is more likely 80 thail nbt ~o In other words a preponderance Of the evidence means such evidence when considered and compared with opposing evidence Is more pe~uaslve or convincing Pre~nderance of the evidence may not be determined by merely counting the number of witnesses reports evaluations or other items of evidence Rathermiddotft Is datennlned by assessing the persaslven8$Sof the evidence Includlng the opportUnity for knowledge Information possessed and manner of testifying or reporting
While working on a highway crew on March 282013 the claiment badly Injured his hand In a wood chipper While there are some variances In the claimants statements compared to witneamp$ statements about the particulars of the InJury none of those differences would change the outcome of this Decision and thus are not relevant to the discussion There Is no dispute that the claimant was Injured as a result of his work on the road crew while he was an inmate at the Charleston Work Release Centr His inJuries fe$ulted In surgery and hospitalization at CAMC where his medical bills In e)(cees of $90000 were paId by the Department of Corrections He was paroled soon after he was released from the hospital
The claim was rejected by an Order dated November 15 2013 which denied the application for benefits as it was determined that he did not sustain an Injury In the course of and resulting from his employment The claim administrators Investigation
14
000016
WilHam Crawford JON 2014016722
Inmates and that they must pay them the same wages non-Inmate workers and they must provide workers compensation coverage for them (See deposition of Jeff stinnett Administrator of the Charleston Work Release Center dated February 5 2015) Most of the private employment of Inmates 18 In fast food reurants grocery stores and factorieS Bobby WIlliams a case manager at the Charleston Work Release Center testified on March 31 2015 that he talked tolnmat~ to see If they wanted to work on a DOH crew He said that to m It made sense to place inmates In posiUons In the community In which they would be released The claimant was to be paroled to Hardy County which Is not within a driving distance to Charleston
The claimant argued that there were no rules or regJlations that would determine -shywhether an Inmate was placed In a private companymiddot or with DOH However this placement- would middotdetermln their fate If -they were InJured While on work refeaee Counsel for the claimant argued that this disparate treatment was discriminatory Counsel cited the West Virginia Supreme Court of Appeals holding In State ex ret Boan YS RlcIDardson 482 se 2d 162 ~va 1966) In which the court held that a workers compensation statute atfeQtlng economic rights may not be used to discriminate among a class of In~lvl~uals In similar circumstances and that any such statute violates the equal protection clause Art IU Section 10 of ttle WVa Constitution The Court stated that ~ would look to whe~her the classffication was rational and Qbased on socliil economic historic or geographIc factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally Id at 164 The claimant argued that he was a inmbar of Incarcerated prisoners in Which all persons weranot treated equally In that some qualified for workers compensation coverage and others did not
There Is no disagreement In this case that W Va Code sect23-4-1e(b) bars the claimant frC)O1 r~elpt of workers compensation benefltB The claimant argues that this law Is unconstltutlonal The Offlce of Judges Is not an Article III Court and does not have jurisdiction to rule a sttule is unconstitutional Therefore itmiddot1S found that the Order properly rejected the claim pursuant to W Va Code sect23-41e(b)
CONCWSlONS OF LAW
Pursuant to W Va Code sect23-4-1e(b) the claimant is ineligible to receive workers compensation benefits fer an Injury he received while In a Work Release Center performing work for Division of Highways In accordance With agreements with Department of Corrections
It Is therefore ORDERED that the Claim Administrators Order dated November 152013 be AFFIRMED
16
000017
William Crawford JON 2014016722
APPEAL RIGHTS
Under the provisions of WVa Code sect23-5-12 any aggrieved party may file a written appeal wlthlnthJrty (30) days after receipt of any decision or action of the Administrative Law Judge The appeal shall be filed ~Irectly with the Workrs Compensation Board of Review at PO Box 2828 Cha~eston WV 263~9
Date July 6bull 2015
RibcCca S CharI Administrative Law ludp
RSCQtc
cc WILUAM F CRAWFORD JOHN HENRY SKAGGS -COUNSEL FOR CLAIMANT DEPT OF CORRECTIONS-WORK RELEASE LISA WARNER HUNTER - COUNSEL FOR EMPLOYER AMERiCAN ZURICH INS CO
17
000018
William Crawford JCN 2014016722
JCN
Date
2014016722
July 6 2015
ReconJ Considered
The Clalmanfs protest to the Claims Administrators order Of regarding REJECTION OF CLAIM
November 15 2013
EVIDENCE SUBMITTED
Claimant Evidence
Document Type Not Specified Document Date 11112000 Submit Date 6Q012014 Author EMPlOYERICLAIMANT - WORK AGREEMENT
DoaIment Type NotSpepified Document Date 1112OQ4 Submit Date 612012014 Author WV DIVISIONS OF CORRECTIONS - POUCY
OIRECnVE
Document Type Not Specified Document Date 41112006 Submit Date 612012014 Author CHIPPERISHREDOER SAFElY - K-STATE
ARTICLE
Document Type Oocum~nt Dale Submit Date
Not Specified 41612008 612012014
18
000019
Willism Crawford JON 2014016722
Author HAZARDS OF WOOD CHIPPERS - OSHAOOV
Document Type Not-Specified Document Date 7112010 Submit Date 812612014 Author DIVISION OF CORRECTIONS-2010 EXECUTIVE BUDGET
STATEMENT
Document Type Not Specified-----DocumenrDste=------r71t212010----------------------- ----
Submit Date 812612014 Author NEWSPAPER ARTICLE~DEPTOF CORR~CTIONS
Document Type NotSpecified Oocument Date 412612012 Submit 08te612012014 Author CONVICT WORKFoRCE AGREEMENT
Document Type -Not Specifted Document pate 4I26J2012 Submit Date 812012014 Author CLAIMANT - CONTRACT FOR PLACEMENT
Document Type NotSpeCified [)(lcument Date 1112612012 Submit Date 1123i2014 Author WORK RELEASE RECORD (111261122-19-13)
Document Type Not Speclfjed Document Date 1112712012 Submit Date 112312014 Author CONTRACTIPLACEMENT ON ROADCOMMUNITV
CREW
Document Type Not Specified Document Date 312812013 Submit Date 112312014 Author DUTY OFFICER REPORT
Document Type Not Specified Document Date 32812013 Submit Date 1232014 Author INCIDENT REPORT WITH ATTACHED MEDICATION
FORMS
19
000020
William Crawford JCN2014016722
Document Type Not Specified Document Dale 4412013 Submit Date 112312014 Author WILLIAM CRAWFO~D ~ STATEMENT
Document Type Not Specified DocUment Dale 412512013 Submit Date 611912014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 121102013 Submit Date 1l23t014 Aulhor CLAIMANTS DEPT OF CORRECTIONS FILE
Document Type Not Specified Document Date 12312014 Submit Date 112312014 Author CLAIMANT - CONTRACT PLACEMENTIWORK RELEASE
CENTER-UNDATED
Document Type NotSpeclfied Document De 113112014 Submit Date 2412014 Author EMPLOYER INTERROGATORIES
Document Type Not Specified Document Date 62312014 Submit Date 012312014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 12118204 Submit Date 11412015 Author BETIY SLACKmiddot DEPOSITION
Document Type Not Specified Document Date 21512015 Submit Date 212612015 Author JEFF STINNETTmiddot DEPOSITION WIEXHIBiTS
Document Type Not Specified Document Date 313112015 Submit Date 412212015 Author BOBBY WILUAMS - DEPOSITION
20
000021
JCN 2014016722WlUlam Crawford
Emglgyer Evid8DC8
Document Type Npt Specified ------f)ocumentDate--tlf2mo2-------------------- shy
$lIbmiiOate 73112014 Author WORK RELEASE STATUS MASTER FURLOUGH
AGREEMENT
Document Type Not Sp~lfied Document Date 312812013 Submit Date 713112014 Author OFFICE OF WV AUDITORmiddot FINANCIAL INFO MANAGEMENT
SYSTEM INVOICE SHEETS
Document Type Not Specified Document Date 312812013 Subinlt Date 713112014 Author DARRELL SIGMON - STATEMENT
Document Type Not Specified Document Date 31282013 Submit Date 713112014 Author ROCKY pARSONSmiddot STATEMENT
D~umentType Not Specified Document Date 612312014 Submit Date 713112014 Author BETTY SLACKmiddot AFFIDAVIT
CLOSING ARGUMENTS
21
000022
WillIam Crawford
PalY Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted tettE3FDate Party Submitted Letter Date
Safety Division of Corrections and the West Virginia Departmen~ of Transportation Division of Highways (Highways) slating that Inmate participation crews may be assigned to Division of Highways for road maintenance purposes DIVIsion of Corrections was to select participants and Highways personnel would determine crew needs and coordinate with Corrections facilities managers to obtain available inmate crews Crews were to be available for aworkday to begin at 730 am Highways would prQvlde transportation vehlcl8$ and tools for the Inmate crews Lunches would be provided by Corrections Thfi rate of pay ws to vary according to middotthestalus of the Inmate Inmates from Correction Centers would be paid $150 per hour and Inmates from Work Release Centers and Beckley Correctional Center would be paid $450 per
----------iCh-=ou=-=r=Irrt7-wa=-==sn=-=otEed--itChacittihe~raite=-=-=oi-f-=pa=y~wo=udldr-b-e--reTlmmiddotibur=s~edr-b-yLHrrlgdhwa-ys-------lnma~te------ -_ --shycrews utilized by Highways would remain under the control and authority of Corrections at aU tJme$ Sp$Qlflcally Item_ 17 nQt~ HlghwY$and Corrections agree that Highways Is acting as an agent of Corrections and that the inmates performing servlces under this agreement wUl not be employees of the State entitling them lo any i)enetlts such employees might have Including but not limited to Insurance Worker compensation benefits pension sick and annUailleave
3 The claimant submitted the State of West Virginia Division of CorrecHons Policy Directive dated January 1 2004 The polley stated lilt Is the policy of the West Virginia Division of CorrectIOns to maintain a mechanism that ensures procedures for the management of Inmate work crews assigned to the West Virginia Department of Transportation Dlvi$lon of HlghwaY It was noted that the Division ofHlghways WOUld reimburSe the DivisIon of Corrections for Inmate wages as wellmiddotas salary reimbUrsement of the Correctlon Officer The Policy stated that In the event an Inmate was severely Injured requiling medical attention at an Emergency Room th~ Dlvilion of Corr~lonamp supervisor would take necessary steps to ensure medical treatment was prOVided In a timely manner Further the Division of Corrections supervisor was to notify the institution or facility of the injury and the facUlty was to dispatch a second officer to assist If necessary
4 The claimant submitted the Kan~ State University report titled ChipperShredder Safety dated April 1 2006 Safe operating procedures are provided and the report wams of the dangers of wood chippers and It gives detailS of accidents that have occurred
5~ The claimant submitted the Osha report titled Hazards of Wood Chippers dated April 16 2008 The report stated that there had been 39 employees killed in chipper accidents from 1996--2005 Work practICes were dl~ussed
6 The claimant submitted an excerpt the DIVision of Corrections 2010 Executive Budget The pagemiddot submitted Includes a Mission statement In which is noted that its mission is to enhance public safety by providing a safe secure humane correctional system Including an effective community supervision program opportunities to prepare offenders for successful re-entry and sensitivity and responsiveness to victims of crime Several OperatiOns are listed Academy
2
000004
--JCN 2014016722 Willlam Crawford
ServicesStaff Training and Development Adult Offender SElrvlceamp Parole Supervision Services West Virginia Correction~1 Industries Work ReleaseCommunity-Based Corrections and Young Adult Center Under the work release section It was noted that the Division of Corrections provides inmate work crews to the Division Of Highways and other community agencies
7 The claimant submitted the newspaper artlole dated July 12 2010 from the Charleston Dally Mall This document was labeled Exhibit A The article Is In refere~e to a S~ial Sec~rity Administration report naming West VIrginia as one of eight stites that give p-rleoners p-erformtng data p-rocesslnllJoba af a correctional facUity ~ess to citizens private Information The Commissioner of the West Virginia Division of COrrections Jim Ruenstein said the Information was incorrect The article stated that prisoners working through a work release program might be able to view such data If a private employer were to show them However it was noted by the Commlssloner that the majOrity of the work release Inmates work In the fast foodshyindustry and not daia proceeslng
8 The claimant submitted the West Virginia Department of HlghwaysJWest Virginia DiVision of Correetions StateWide Convict WorkfOrce Agreement dated April 26 2012 The partles agreed that Corrections would make avaUable to HighwaYS a number of Inmate work creW$ and set forth gneral conditions noting HighWays was to reimburse Corrections for inmate pay HighWays WOuld be reampPQnsible for training transportation and tools AU inmate work crews would be sLJpervlsed by representative of Highways and when clasSIfication levels of Inmate required it CorreQtions would provide Correctional Officers for the pUrpO$8S of preventing an escape only and HfghW$YS would reirnbQJSe the Correctional Offlcel$ payllem 17 noted Highways and Corrections _gree that inmatespetforming serviCes under this agreement will not be employees of the State entitling them to any benefits such employees might have including but not limited to insurance worker oompensatlon benefits pension sick and anriualleave
9 The claimant submitted a Contract for Placement at a Work Release Center signed by the olalmant Thft contract stated that the clalmEmt understOOd and agreed that hls Initial WOrk assignment would be a maintenance type job at the work r81ease center Advancement to other work would be gradual and dependent upon his adjustment at the center and his performance Paragraph 9 atatedthet he agreed and understood that he was responsible for all his medical expenses he Incurred at the Center Further that before receIVing medical ~ttentlon except In an emergency he was to notify the Administrator of the problem and he was to report all prescriPtion medication that he had taken or possessed
10 The claimant submitted the claimanrs Corrections work release record excerpt spanning from November 26 2012 through April 19 2013 The excerpt showed the claimants destination on multiple dates On multiple dates the claimants destination was the Department of Highways (DOH) speclncally on March 28 2013 It
3
000005
William Crawford JCN 2014016722
was noted that his destination on March 28 2013 also Included CAMC General He was paroled on April 19 2013
11 The employer submitted the Work Release Status Master Furlough Agreement dated November 27 2012 The clalmant signed the Agreement In which It was noted that upon furlough he s aware that he was stili under the custody of the West Vlrgln~a DivislQn Qf CorrectlQns The agreement noted that furloughs were considered to be any time he was authorized leave from the Center including visiting with famlly Job seeking work and medical appolntment$ etc
I --------12-middot-The--cl-aJ-m-a-nt-s-ub-m--tte-d-th-e-C-o-nt-ra-c-t-o-r-P-lao-e-m-e-n-t-o-n-R-o-ad-c-II-ew-or-----r-
CommUnity Crew that he signed and dated November 27 2012 noting the claimant had been$Sl~ted for placement on a community workcrewOOH rpad crew It was noted that under item 9 all a~dents were to be reported in writing to the Department of Transportation and the Division of Corrections staff as soon middotas praCtical and uncler Item 20 that while working on a community crewDO road crew program 30 of all wages earned would be deducted from the inmates account for the payment of rent
13 The employer submitted the Financial Information Management System Invotce sheets and Insurance clalmfonns noting medical treatment for the clalmant spanning from MarCh 28 2013 thrQughApril 1$ 2013
14 The employer submitted the typed statement of Darrell Sigmon dated March 282013 Mr Sigmon stated that he and the work release crew were chipping tree bnlnches and the chlpPl)rs chute plllggacJ The Chlpperctlute was rad to remove the clog in the chute and then the motor was shut down The claimant was told by Mr stgmQn and another work release worker Rocky to stay olear of chipper but the claimant plac~ a stick Into the chipper The chipper drum was moving slOWly and it pulled the claimant~shand Into the chipper injuring his hand Mr Sigmon took the alimant to the ~ffice and stated his supervisor took him to CAMe - General
15 The employer submitted the handwritten statement of Rooky Parsons dated March 28 2013 Mr Parsons stated that the crew and the crew supervisor were running the chipper when the chute was plugged With debris He said the cl1lpper had J~ been Shut off and the blades disengaged when the claimant approached the chipper He said he and the supervisor told the claimant not to stick his hands In there ~cause the blades were $till turning He said that the claimant asked If the blades were stili tumlngand at the same time he stuck his hand In the blades The claimant had to be taken to the emerg~ncy room
16 Th claimant submitted the Outy Officer Report dlted March 28 2013 A phone call was received that claimant Inmate had been In an accident wherein his hand was caught In a wood splitter and he was befng sent to CAMC - General for treatment The Department of Highways supervisor would be calling or stopping by to glve an update as soon as possible The claimant had surgery on hIs left hand and ailS fingers
4
000006
JCN 20104016722bullWilliam Crawford
were repaired His pinky finger was broken He had surgery to repair ligament on March 30 2013 and that he would have another surgery at a later date
17 The claimant submitted the Division of CorrecUons Incident Report Which was signed by Darrell Sigmen and dated March 28 2013 It was noted that on March 28 2013 the Department of Highways crew was chipping branches beside the road The chipper had stopped up abou~ four tImes that day The chutemiddot door was open and the chipper was turned over snghtfy to let the debris out While this was being done the claimant pUt a stick Into the chipper pa~ of the machine Ttle chlppef was off but the blade was stili sfigMtyJuming and It Jerked the stick and the claimant did not let loose of It quick enough ihe report stated that the claimant had been warned not to get his hand near the chipper because the blade wa$ stili moving but he did It anyway
Attached to the report were medication formsllog$ noting di$pensatiQn of medications to the claimant on dates spanning from November 26 2012 through March 112013
18 The claimant submitted his statement dated April 4 2013 The claimant stated that the accident occurred on March 29 2013 while he was chipping brush along Corridor G The chipper WfJS not operating properly anCl clogged He said that there were some small vines and branches sticking out from the Chipper and he grabbed one and tried to pull It to shake the chipper free It pule~ his hand into the blades of the chipper He said he did not stick hIS hands Into the chipper
19 The claimant submitted photographs Some pictures depicted an Injured left hand with stitches down the palm and past the wrist WIth Injuries on the palm face of an fingers The ring Imd liltle finger were amp~tated around the proximal Interphalangeal Joints A few photos showed the hand with healed wounds but shoWIng the two partially amputated fingers and a rather long scar from the mid-palm area down past the wrist
20 The claimant submitted a FOIA response rrom the WV Division of Corrections dated December 10 2013 Policies and egrEtementa irade pursuant to W Va Code 25-7-14 and 16 and WVa Code 23-4-18 Were provided A policy of the DMsfpn of Correqtlons dated January 1 2004 was irl9luded which concerned procedures for managing inmate work crews assigned to Division of Highways (DoH) It atated that If an inmate were seriously Injured hetshe should be taken to an emergency room ind that medical treatment must be provided In a timely manner A Correctional Officer was to be assigned to each road crew and the Officer was responsible for ensuring the crew members work the proper safety eqUipment and DOH was to supply all safety equipment The Officer was to ensure all crew members attended all safety meetfngs scheduled by DOH A Policy dated May 1 2013 also noted an agreement between Corrections and DOH It also required a Correctional Officer be aSSigned to eaoh road orew and the Officer was to ensure orews work safety equipment and attended safety meetings DOH provided transportation from the job site back to DOH Accident procedures were discussed Inmates would be paid $580 per hour beginning
5
000007
JCN 2014016722 William Crawford
July 1 2013 Thereafter the rate would remain at eO of the federal minimum wage rate Corrections would establish acertified training course on chainsaw usemiddot to Inmates and only those trained would be permitted to use a chainsaw There was an agreement dated January 11 2000 between Division of Corrections and DOH regarding crews of Inmates iupplled to DOH Inmates fom Correctional Centers would be paid $150 per hour and Inmates from Work Release Centers and Beckley Correctional Cemer would be paid $450 per hour DOH would reimburse Corr~Uons at the rate of $218800 per m()nth per officer Correctl()ns would Invoice DOH for Inmate work performed The agreement stated that Inmates performing services were not empl()yenees of the state entitling them to any benefits such employees might have
---------rin-cl~middotInLgbut not limited to Insurance worker compensation benefltspension sick and annual leave Further Corrections would provide any medical care needed by inmates performing services An agreement dated April 26 2012 provJded Qo~jflollS fQl Corrections to supply Inmale crews to DOH Crews were not permitted to operate heavy motorlz~ equipment or anything larger than a riding lawn mower DOH was to provide safetY equipment Inmates from Correc(lonalCenters and Wortlt Camps Wculd be paid $150 per hour and inmates frOinWork Release Centers and BSCkleyand Ohio County CQfTeQtfonal Centers would be paid $450 per hour until June 30 2012 and then $5~20 beginning July 1 2012 and beginning July 1 2013 the rate Increased to $580 per hour beJng 80 of the federal minimum wage and It would rise and filII In accorclance with the federal minimum wage
21 The claimantsubmitted a Contract for Plaoement at a Work Release Center slgne~ by the claimant dated January 23 2014 The clalm_nt ~ at Pruntytown Correctional Center and was to be put on work release for a probationary 30-day period at Charleston Work Release Center The Contract concerned the verioUl requirements placed on the claimant and It stated that he was agreeing to be responsible for all medical expenses he Incurred while at the Center He also agreed that prfor to receiving medical attention except for an emergenoy he had to notify the Administrator
22 The claimant submitted the employerS answers to Interrogatories and requests for producUon of documents dated January 31 2014 The employer objected to the request of the number of work release inmates Injured during their work for the last five years and tl18 naeof the Injury and other Information The employer did not answer The employer also objected to the Interrogatory aSking whether any workers compensation benefits had been paid and the amount paid However the employer stated that it was unaware of any Inmate ever recelvlng workers compensation benefits for Injuries received while performing services for another state agency Further as wards of the state inmates who require medical care related to services they are providing for a state agency while under authority of the Department of Corrections are provided care through the Department of Corrections In respo088 to Whether the claimant was working for an approved WOrk release program at the time of Injury the employer said that he was under a contract for placement at a work release center and under a Contract for Placement on Road Crew or Community Crew agreement In accordance with a WV DOHIWV Olvlslon of Corrections Statewide Convict Workforce Agreement
e
000008
WIlliam Crawford JON 2014016722
23 The employer submitted an Affidavit of Betty Slack dated June 23 2014 Ms Slaok stated that $he was the Deputy Direclor of WV correctional Industries and had held the position since December 2009 She managed the Prison Industries Enhancement rPIEQ Program for Division of Corrections guided by west Virginia Code)
sectsect25--7-13 and 25-7-14 According to M$ Slack all PIE prograrns must be operated Within the prison setting but none have ever actually operated In West Virginia She said that none of the current Inmate work programs now operating are regulated by PIE
24 The claimant submitted II deposition transcript of Betty Slack dated December 18 2014 Ms Slack testified that she worked as the DeplID Director of the West Virginia Correctfonallnduitrles since 2009 She said she had production shops In the prison facilities that produced fumlture seating printing engraving mattr8$S88 and yarJous Q~er products and that she oversaw productl~ She ove~8$ emploYees both Inmate middotand civilian She sald that certain inmates would be cleared for work and that she could pick them from a list of workers She said there are some Inmate work from the Charleston Work Release that help load and unload trucks and do Janitorial Jobs They are paid hourly She said the Work Release workers are nearing a release from prison She said that the work~r Is not Pflid dlreotly~ the Charlast~ Work Release Center Is paid and It makes deductions for room and board and the rest Is put In the Inmat~ account She said the workers do not receive benefihi She was not familiar With the Charleston Work Release Program ~xceptmiddotth8t she got Inmate workers from thete when requested She noted that Jeff Stinnett is the administrator for the Charleston Work Release Center
25 The claimant submitted a transcript of the deposition of Jeff Stinnett dated february 5 2015 Mr Stlrmett statd that hI was the Administrator of the Charleston Work Release Center on Brooks Street in Charleston WV He stated that he had worked there since 1993~ He stated that he oversees dally operations of the facHlty which has capacity for slxtyslx He stated ~cd he recalled the claimant and that he signed a contract to go to the work release center Mr Stinnett stated that workers sometimes work for other state agencies ~esldes highways but DO H was the only one With a formalized agreement with corrections He stated that there were eligibility criteria for work release He said that some Inmates work at fast food restaurants grocery stores ancl factory work When worklrg In priv~te employment they are paid the same wages as their co-workersand have standard deductions from their pays such as FICA He stated that as far as he knew the private employers reported lhese workers wages for workers compensation purposes Every worker In private or agency work pays 5 dollars per day of their earnings to Corrections for maintenance and support The majority of rest goes Into a trustee ~ount that they receive once discharged but they can get a small amount weekly for basic needs Mr StJnneH stated that he recalled one other Individual injured while working on a Kanawha State Forest crew In the past He stated that there was a new regulation regarding the use of chalnsaws and the size of equipment inmates can operate but these were Highways rules and he was not familiar with them He stated that Corrections teaches chalnsaw training for the Inmate work but not for other equipment Mr Stinnett stated that Health
7
000009
WIlliam Crawford JON 2014016722
Right Is one place Inmates go If they need health oare Which Is billed on a sliding scale and many times is free for the Inmates
26 The claimant submitted a transcript of the deposition of Bobby Williams dated March 31 2015 At the beginning of the dep)$IUon cQunsel for the employer placed on the record an objection to the request for an e)(tenalon of time frame filed by claimants counsel The employer did nCit object to the deposition but did object to the extenslon for the purposes of keeping open the reoord In the protest Mr Williams sttedthat he was employed at the Charleston Work Release Center as a case manager and he Is the em~ment coordinator His duties Include assisting Inmates with parole paperwork and helping them look for work He stated that he recalled the claimant and that he was in an accident He stated that inmates were responslbte for seeking private employment He said he would talk to the inmates and ask If they wanted to work for Highways on a road crew He would look to see where the InmateS WOuld be released and ir It would be In the Charleston area It made $8nse to have them work In the commul1lty He stated that he was not aware of any other residents at his facility that were Injured while working for DOH He stated that he could not recall whether the claimant asked to work for DOH Mr Williams was aware that the claimant was to be paroled to Har~y County which is not within a driving distance for work In Charleston He said that sometimes they transfer Inmates to a work release center closer to where they will be paroled~
27 The claimant filed a clOsing arg~ment dated July 11 2014 The claimant argued that he was entHled to WQrk~rs compensation beneflt$ for an injury IIe received while he was In a prison work release program involving the Department of Highways (DOHiI) The claimant stated that he was seMog a period of confinement at the Charleston Work Release Center and was working for the DOH pursuant to a WQrk release agreement when he was Injured on March 28 2013 He stated that his hand was caught In a wood chipper and was mangled He was treat~d at CAMe where his medical 1)111 Were In excess of $90000 and were paid by the Department of Corrections The claimant said he partfallyamputated fingers of his left hand
Counsel for the clilmant stated that he hid not been ible to Identify the rules and regulations that applied to the Interagency employment of inmates He had found a policy dated August 12013 which postdated the claimants Injury and a work agreement that also postdated the Injury However a January 1 2004 poUcy was In effect at the time It governed the management of Inmate work crews for DOH and stated that In the event of a serious injury an Inmate was to be taken to an emergency room Further the policy Indicated that work release Inmates would have occa$lon to work In situations that may result in aCCidents and may require safety eqUipment There was also an agreement between Corrections and DOH dated April 26 2012 which stated the obligations of each agency for Inmate work crews This agreement provided for training by Corrections for the inmates to learn to safely operate ohalnsaws Further inmates were to be paid $450 per hour The claimant signed an agreement for work release when he was at Pruntytown
a
000010
WiUiam Crawford JCN 2014016722
Counsel noted that WVa Code sect23-4-1e(b) states
(b) Notwithstanding any provision of this code to the contrary no person confined in a state correctional f~iI~y or jail who suffers Injury or a disease In the eour$e of and resulting from his or her work during the period of confinement which work Is imposed by the admlntration of the state correctional facility or Jail and IS not suffered during the persons usual employment with his or her usual eMployer when not confined shall receive benefits under the provisions of this chapter for the InJUry or disease ProVIded That individuals otherwise QOIlftned In a state correctional facility or JaU or at a Juvenile services facility IInd working In a program authorized by sections fourteen or sixteen of article sevenchapter twenty-five of this code shall be eligible to receive benefits under the prov~Jons of this chapter while working In an authorized program The coverage for benefits may be obtained either by the prtvate entity or by agreernentwJth the state agency as specified In subsection (5) subsection (a) of sections fourteen and sixteen of artlc1e sevenchapter twenty-five of this code
Counsel also noted that WVa Code sect23-4-1e(b) referenced sect125-7-14 and 25shy7-16 which relate to a Prison Industry Enhancement (PIE) CertlflcIQn middotProgram Thus counsel said that there were two situatIons In whIch an Inmate is eligible for workersmiddot compensation benefits - working for PrISon Industries and working in the private sector pn work release The clamant argued thet there was no rational baels to discriminate betWeen prisoner classifications regarding workers compensation benefits The claimant was performing work that was of such nature that he could have done for a private employer He argued that there was no significant difference In status between the claimant and an inmate working for Prison Industries or placed in priVlllte employment who Is covered by workers compensation
Counsel noted significant differences between the 2012 agreement and earlier agreement$ The 2012 agreement provides that Inmates shall not operate equIpment larger than a riding lawn mower Further Inmates are not to use cnalnsaws WIthout special training Counsel argued that the hazardousness of operaUg wood Chippers Is shown In publications by OSHA
Citing state ex reI Boan vs Richardson 482 SE 2d 162 foNVa 1986) counsel argued that the Supreme Court of Appeals has held that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In similar circumstances and that any such statute violates the equal protection clause Art III Section 10 of the WVa Constltltlon The Court stated tJ1at It would look to whether the classlflcatlon was rational and based on social economIc historic or geographic factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally
9
000011
wiUlam Crawford JON 2014016722
The claimant argued that he was a member of a class of Incarcerated prisoners In which all persons are not treated equally Some of these workers are mandated to receive workers compensation and others are not The dlfferentiaUon between class members had nothing to do with the work performed 8$ he colfld have operated a wood chipper for a private employer Further placement In work Is not a function of anything other than availability of work so It middotIs a matter of chance or fate There was no rational basis on which to diSCriminate betwen Inmates W~rklng for Prison Indmries Working In private employment or working for a state agency The claimant argued that the denial of workers compensation to the claimant under these circumstances does not
_____--advance-LreasonablLgoveOlmemal--Dteresl_[bLretnedieLavallable_Jo_prlvaleyen-y--shyemployed inmates and state employed Inmates are different In that privately employ Inmet are coverd by workers CQmpensatl~n whereas those employed by a _e middotagencyrenot The onlymiddot remedy for astate employed InmatemiddotJsmiddota claim-under 42U$C 1983 for cruel and unusual punishment but this claim rqulres proof of deliberate jndlmrence middotto the hazard aOd this burden of proof Is eXtremely dlfllculttb meet Thus there are substantial dltterences In the remedies available to Inmates injured middoton the Job The ~almant also noted that Inmates engaged In work for the state re paid very low wag and had he been empfoyed by a PriVate employer he would have had benefit of workers compensation coverage
28 The employer filed a closing argument dated August 21 2014 Th employer argued that the ofalm was properly rejected because the clalmamiddotnl did not suffer an Injury In the course of and Ii result middotof covered employment The employer argued that the claimant was not an emplQyeeentiUed to workers compenSation ~ntlts Th employer noted ~hBt the Qlalrnant wa~ In~arcetated at the time of the Injury He was working on March 28 2013 on Corridor G for the Department of Highways when his hand was caught In a wood chipper He was nated at CAMe and his medical bills were paid by ttl Department of Corrections The employer felt that the circumstances of how the claimant became Injured were Irrelevant to compensability The employer stated that there was flO dispute that the claimant was performhig $8rvlces for DOH as part of his connnement at the Charleston Work Release Center He signed an agreement on November 27 2012 whkh was subject to a Contract for Placement at amiddot Work Release Center that he also signed His dUties with DOH were contingent on hlsmiddotContract for Placement on Road Crew or communitY Crew whIoh he signed on November 27 2012 The employer argued that according to documents raled to the agreement between the Department of Corrections and DOH Corrections would provide DOH with Inmates to perform dUUes for pOH The agreement outlined the terms and canditi~ related to the use of Inmate services and the compensation that Corrections would receive on behalf of the Inmates The agreement provided that the Inmates p$rforrrdog servfc~ under this agreement will not be employees of the State entitling them to any benefits such employees might have including but not limited to Insurance worker compensation benefits pensions sick and annual leaveII
The employer argued that the only wayan Inmate would be entiHed to workers compensation benefitS Is pursuant to placement In a program established under WVa Code sect25-7-14 or sect25-7-16 which apply to programs estabUshed to the federal Prison
10
000012
William Crawford JON 2014016722
Industry Enhancement (PIE) Certification Program The evidence shows that to date no such programs have ever existed and no DOCDOH road crew program Ie part of PIE
The employer argued that WVa Code sect23-2-1deflnea employer and sect 2~2-1a defines aemployeeD The employer argued that the claimant Is barred from receiving workers compensation benefits due to his status as an Incarcerated individual at the time of his injury because WVa Code sect23-4-1eb) provides that I[n)otwlthstandlng any provislcm of this code to the contrary no person confined hi a state correctional facility
____-----Dr_JaILwbo-suffersJnJWyen--DudlseaseJnJbeMursUlLand1uuJtlng1mmltlsoLhe( w~ork_____ during the period of confinement whiCh work Is Imposed by the ~dmlnlstratlon of the state correctional facility or Jail and is not suffered during the persons usual employment with his or her usUal employer when not conftnedshall receive benem under the provisions of thl~ chapter for the injury or d~ease
The employer argued that the code 8peclfie$ that an Inmate Is not entitled to workers compenSation If Injured while completing work imposed by the administration ofthe state correctional facility or jail However had he been working in a PIE program he would hav~ been enHtled to workers cC)mpensation beneflts The employer argued that tbe claimants closing argument confirmed this finding- but he argues that his constitutional rights have been violated In response the employer argued th~t the PIE program flowed out of federal leglslatlcm and (hat the clear and rational basis for the requirement that private employers provide workers compensation ooverage for Inmate employees under the Pie program is 80 no unfair advantage la given to the private employer
The employer argued that the olaimants constitutional argument falla and that his only recourse Is to petition the legislature for a change In the current law However the employer argued that any determination by the Court that all Inmates are entitled to workers compensation benefits would slgnlJlcantIy ImpaCt the states budget
29 The claimant flied a Reply to Closing Argument and Exhibits dated August 26 2014 The claimant clarified that his argument based upon the PIE program was based upon the employers affidavit Indicating that program Is dormant He stated that even If the PIE program had remained dormant this did not mean that Inmates were only empioyed by DOH and that statements by the Director of Division of Corrections and the Governors BUdget document clearly state that Inmates are employed In the private sector The claimant attached Exhibit A to this filing and he stated that In this attachment Mr Rubenstein stated that the majority of Inmates -e empoyed In fast food industry and restaurants The claimant again argued that there was a dlaparate treatment between inmates who work for the Department of transportation and those In any kind of private employment and this was a violation of the Canstltudan
30 The employer filed a Response to Closing Argument and exhibits dated September 9 2014 The employer argued that the claimants reply was submitted on
11
000013
WIUlam Crawford JCN 2014016722
August 26 2014 which was filed after the ten day prlod for case summation pursuant to WVa CSR sect 93~1-65 since the time frame expired on August 11 2014
The employer stated that the provlslons of Article 7 of Chapter 25 of the West Virginia Code were drafted to comply with 18 USC sect 1161 (c) the PIE program The federal legislation allOWS state andmiddot local prisons to be exempt from federal restrictions on prisoner-made goods entering Inte_te commerce and allOWS private individuals tn some clrcumst~mces to hire Inmates for production of goods However the Inmates must be paid similar wages 80 as not to allow a private Industry to obtilhlan unfair
------_advantagacomparecUO-the-prlva~sector~-ThaemployJtr--8tatedJbaUmgatiorLl8gamlng_______ 18 OSC sect 1761(0) Is cleaithal Its purpose Is to protect private businesses and that It was not enacted to protect Inmate workers The ernp~oyer cited McMaster v Minnesota 30 F3d 9679811994 US App Lexls 1861816 (8middot CIr Minn 1994)
31 The employer flied a Seoond Closing Argument ~ated MarQh 162015 The employer stated that the Issue was whether the claimant was entitled to receive workers compensation benems after sustainIng an injury while working for DIVIsion of HlghwaY$ on a work crew from the Chal1stQn Work Release Center The employer noted that the claimant signed a Maser Furlough Agreement on November 27 2012 He also signed a Contract for Placement at a Work Release Center His duties WIth DOH were contingent on a Contract for Placement on Road Crew or Community Crew which he signed on November 272012
The employer noted that there were agreements between Department of Corrections and Division of Highways regarding Inmate servk Neither DOH nor DOC conSidered the Inmate workers fo be employees and the contract stated that they were not employees of the State and not entitled to employee benefits Including degworker compens~lljon
The employer argued that the only conditions under which an Inmate is entitled to workers compensation benefits Is if he were placed In a Prison Industry Enhancement (PIE) Certification Program under WVa Codmiddote sect 25-7-14 or sect25-7-16 Ther have never been any PIE programs In West Virginia and so the claimant was not part of this program
The employer responded to the claimants argument that inmates employed in the private sector outside the PIE program and they are coved by workers compensation and thus the noncoverage for inmates such as the claimant Is unconstitutional The employer argued that Ms Slack testified that Correctional Industries operates about 17 production shops In which inmates work Some Inmates from the Charleston Work Release Center assist but none of the (nmates receive benefits Mr stinnett administrator of the Charleston Work Release Centertestlfled that there were criteria for Inmates to be placed at the Work Release Center and there was a running list of Inmates who desired placement When a bed opened an Inmate Is placed there He stated that about 45 Inmates work In private Industry rather than with
12
000014
William Crawford JCN 2014016722
the State The C~nter attempted to get private Jobs for inmates who would ultimately be released In Charleston so that they can continue to work when reJeased
The employer argued that the clalm_nt was barred from receiving workers compensation duetohts Incarceration at the time of his inJury pursuant to WVa Code sect23-4-1e The employer noted that PIE program Inmates are provided coverage by the private employer and that the purpose of this was to Implement federal regulations and protect private businesses from unfair competition Thus there is a clear and rational basis for dlff8f~mces between Inmates wC)fklng for private employers In a PIE program
32 The claimant filed a Supplemental Closing Argument dated March 20 2015 The claimant argued that the statutory framework regarding work- rajease and the provision of beneflt$ and the Implementation of the statute by the Department of Corrections violates the equal protection clause The claimant argued that not only do Inmates who woUld work under the PIE program Of ever Imptemerited) receive workers comperl$ation ~enet1ts but those who are released to work in the private sector receive workers compensation and other benefits The claImant argued that those who work for Department of Highways do not relieve the ame benfllsas those similrly situated Inmates whQ work In private sector jobs and this is discrimination with no reasonabie basis
33 Counsel for the claimant and the employer presented closing arguments at a hearlng on May 5 2015 Cou for the claimant _ated that the Issue was oompensabllityfor an Inmate Who Injured his hand while working for a Division of Highways crew while at a Work Release Center Counsel for the claimant cited State ex ret Boan VS Richardson 482 SE 2d 162 ~Va 1966) IInd argued that the SUpreme Court of Appeals ruled that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In slmUar circumstances and that any suqh statute violates the equal protectlcm clause Art IU SeCtion 10 of the WVa Constitution Counsel stated that had the claimant worked for a private employer he would have been covered j)y workers compensation There are no rules or regulaUons governing whether an Inmate works for DOH or a private employer Thus there Is no rational basiS for how they are assigned Underbn the elaimant argued he has been wrongfully dlscrfmlnated against
The employer stated that the claimant was barred frQm receiving workers compensatlc)O WVa Code sect23-4-1e(b) He was an Inmate subject to confinement and was not In a PIE program which Is an exception The participant Inmates are stUI Incarcerated While In the Work Release program The OOJ has no authority to decide the statute Is Constitutional The claimants remedy Is to convince the state legislature to change the statute Counsel for the employer stated that his mecilcal bills were covred by Department of Corrections Counsel argued that the OOJ must affirm the Order Counsel Indicated that once paroled the claimant was not eligible for further medIcal treatment to be paid by Department of Corrections
13
000015
William Crawford JCN 2014016722
DISCUSSION
This case Is before the OffIce of Judges based on a protest to the Order regarding tbe compensElbllltyof the claim W- Virgins Code -523-4-1 provides for benefits to employees who receive an Injury In the course of and as a result of their covered employment The more preci$e $Sue presented hre Is whether the claimant Is entitled to benefits for an InjJJry he received while he waS an inmate working on a crew pursuant to agreements between himselfi the Department of corrections and DMslon of Highways
i ---------------------------------------------------------------------~-
W Va Code sect23-4-1 9 provides that for all awards made on and after July 1 I 2003 the resolution of any Issue shall be ba~ upon a weighing of atl evldenoe pertelnlng -lothe Issue and a finding that8 preponderance of themiddot evidence supportsmiddot the chosen manner of resolution The process of weighing evld~nce $hall include ~ut not be limited to an assessmei1t of the r~lecC credlblRty materiality and rellabllty that the evidence possesses In the context of the Issue presented No Issue may be resolved by allOWing certain evidence to be diSpositive Simply because It Is reflable and Is mosJ favor-ble to a partys Intrests or position The resolution of Issues n claims for compensation must be decided on the merits and not according to any prinCiple that requir statut governing workers ~ompeJS~lon to be Ilb~rally conStrued because th~V are remedialili natute If after weighing all of the evidence regarding an Issue there Is a finding that an equal amount of evidentiary weight ~$ for each side the resoltiQcm that is most con$lstent With the claUnant$ position Will be adopted
Preponderence of the evldenQe means proof that $omethlng Is more likely 80 thail nbt ~o In other words a preponderance Of the evidence means such evidence when considered and compared with opposing evidence Is more pe~uaslve or convincing Pre~nderance of the evidence may not be determined by merely counting the number of witnesses reports evaluations or other items of evidence Rathermiddotft Is datennlned by assessing the persaslven8$Sof the evidence Includlng the opportUnity for knowledge Information possessed and manner of testifying or reporting
While working on a highway crew on March 282013 the claiment badly Injured his hand In a wood chipper While there are some variances In the claimants statements compared to witneamp$ statements about the particulars of the InJury none of those differences would change the outcome of this Decision and thus are not relevant to the discussion There Is no dispute that the claimant was Injured as a result of his work on the road crew while he was an inmate at the Charleston Work Release Centr His inJuries fe$ulted In surgery and hospitalization at CAMC where his medical bills In e)(cees of $90000 were paId by the Department of Corrections He was paroled soon after he was released from the hospital
The claim was rejected by an Order dated November 15 2013 which denied the application for benefits as it was determined that he did not sustain an Injury In the course of and resulting from his employment The claim administrators Investigation
14
000016
WilHam Crawford JON 2014016722
Inmates and that they must pay them the same wages non-Inmate workers and they must provide workers compensation coverage for them (See deposition of Jeff stinnett Administrator of the Charleston Work Release Center dated February 5 2015) Most of the private employment of Inmates 18 In fast food reurants grocery stores and factorieS Bobby WIlliams a case manager at the Charleston Work Release Center testified on March 31 2015 that he talked tolnmat~ to see If they wanted to work on a DOH crew He said that to m It made sense to place inmates In posiUons In the community In which they would be released The claimant was to be paroled to Hardy County which Is not within a driving distance to Charleston
The claimant argued that there were no rules or regJlations that would determine -shywhether an Inmate was placed In a private companymiddot or with DOH However this placement- would middotdetermln their fate If -they were InJured While on work refeaee Counsel for the claimant argued that this disparate treatment was discriminatory Counsel cited the West Virginia Supreme Court of Appeals holding In State ex ret Boan YS RlcIDardson 482 se 2d 162 ~va 1966) In which the court held that a workers compensation statute atfeQtlng economic rights may not be used to discriminate among a class of In~lvl~uals In similar circumstances and that any such statute violates the equal protection clause Art IU Section 10 of ttle WVa Constitution The Court stated that ~ would look to whe~her the classffication was rational and Qbased on socliil economic historic or geographIc factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally Id at 164 The claimant argued that he was a inmbar of Incarcerated prisoners in Which all persons weranot treated equally In that some qualified for workers compensation coverage and others did not
There Is no disagreement In this case that W Va Code sect23-4-1e(b) bars the claimant frC)O1 r~elpt of workers compensation benefltB The claimant argues that this law Is unconstltutlonal The Offlce of Judges Is not an Article III Court and does not have jurisdiction to rule a sttule is unconstitutional Therefore itmiddot1S found that the Order properly rejected the claim pursuant to W Va Code sect23-41e(b)
CONCWSlONS OF LAW
Pursuant to W Va Code sect23-4-1e(b) the claimant is ineligible to receive workers compensation benefits fer an Injury he received while In a Work Release Center performing work for Division of Highways In accordance With agreements with Department of Corrections
It Is therefore ORDERED that the Claim Administrators Order dated November 152013 be AFFIRMED
16
000017
William Crawford JON 2014016722
APPEAL RIGHTS
Under the provisions of WVa Code sect23-5-12 any aggrieved party may file a written appeal wlthlnthJrty (30) days after receipt of any decision or action of the Administrative Law Judge The appeal shall be filed ~Irectly with the Workrs Compensation Board of Review at PO Box 2828 Cha~eston WV 263~9
Date July 6bull 2015
RibcCca S CharI Administrative Law ludp
RSCQtc
cc WILUAM F CRAWFORD JOHN HENRY SKAGGS -COUNSEL FOR CLAIMANT DEPT OF CORRECTIONS-WORK RELEASE LISA WARNER HUNTER - COUNSEL FOR EMPLOYER AMERiCAN ZURICH INS CO
17
000018
William Crawford JCN 2014016722
JCN
Date
2014016722
July 6 2015
ReconJ Considered
The Clalmanfs protest to the Claims Administrators order Of regarding REJECTION OF CLAIM
November 15 2013
EVIDENCE SUBMITTED
Claimant Evidence
Document Type Not Specified Document Date 11112000 Submit Date 6Q012014 Author EMPlOYERICLAIMANT - WORK AGREEMENT
DoaIment Type NotSpepified Document Date 1112OQ4 Submit Date 612012014 Author WV DIVISIONS OF CORRECTIONS - POUCY
OIRECnVE
Document Type Not Specified Document Date 41112006 Submit Date 612012014 Author CHIPPERISHREDOER SAFElY - K-STATE
ARTICLE
Document Type Oocum~nt Dale Submit Date
Not Specified 41612008 612012014
18
000019
Willism Crawford JON 2014016722
Author HAZARDS OF WOOD CHIPPERS - OSHAOOV
Document Type Not-Specified Document Date 7112010 Submit Date 812612014 Author DIVISION OF CORRECTIONS-2010 EXECUTIVE BUDGET
STATEMENT
Document Type Not Specified-----DocumenrDste=------r71t212010----------------------- ----
Submit Date 812612014 Author NEWSPAPER ARTICLE~DEPTOF CORR~CTIONS
Document Type NotSpecified Oocument Date 412612012 Submit 08te612012014 Author CONVICT WORKFoRCE AGREEMENT
Document Type -Not Specifted Document pate 4I26J2012 Submit Date 812012014 Author CLAIMANT - CONTRACT FOR PLACEMENT
Document Type NotSpeCified [)(lcument Date 1112612012 Submit Date 1123i2014 Author WORK RELEASE RECORD (111261122-19-13)
Document Type Not Speclfjed Document Date 1112712012 Submit Date 112312014 Author CONTRACTIPLACEMENT ON ROADCOMMUNITV
CREW
Document Type Not Specified Document Date 312812013 Submit Date 112312014 Author DUTY OFFICER REPORT
Document Type Not Specified Document Date 32812013 Submit Date 1232014 Author INCIDENT REPORT WITH ATTACHED MEDICATION
FORMS
19
000020
William Crawford JCN2014016722
Document Type Not Specified Document Dale 4412013 Submit Date 112312014 Author WILLIAM CRAWFO~D ~ STATEMENT
Document Type Not Specified DocUment Dale 412512013 Submit Date 611912014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 121102013 Submit Date 1l23t014 Aulhor CLAIMANTS DEPT OF CORRECTIONS FILE
Document Type Not Specified Document Date 12312014 Submit Date 112312014 Author CLAIMANT - CONTRACT PLACEMENTIWORK RELEASE
CENTER-UNDATED
Document Type NotSpeclfied Document De 113112014 Submit Date 2412014 Author EMPLOYER INTERROGATORIES
Document Type Not Specified Document Date 62312014 Submit Date 012312014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 12118204 Submit Date 11412015 Author BETIY SLACKmiddot DEPOSITION
Document Type Not Specified Document Date 21512015 Submit Date 212612015 Author JEFF STINNETTmiddot DEPOSITION WIEXHIBiTS
Document Type Not Specified Document Date 313112015 Submit Date 412212015 Author BOBBY WILUAMS - DEPOSITION
20
000021
JCN 2014016722WlUlam Crawford
Emglgyer Evid8DC8
Document Type Npt Specified ------f)ocumentDate--tlf2mo2-------------------- shy
$lIbmiiOate 73112014 Author WORK RELEASE STATUS MASTER FURLOUGH
AGREEMENT
Document Type Not Sp~lfied Document Date 312812013 Submit Date 713112014 Author OFFICE OF WV AUDITORmiddot FINANCIAL INFO MANAGEMENT
SYSTEM INVOICE SHEETS
Document Type Not Specified Document Date 312812013 Subinlt Date 713112014 Author DARRELL SIGMON - STATEMENT
Document Type Not Specified Document Date 31282013 Submit Date 713112014 Author ROCKY pARSONSmiddot STATEMENT
D~umentType Not Specified Document Date 612312014 Submit Date 713112014 Author BETTY SLACKmiddot AFFIDAVIT
CLOSING ARGUMENTS
21
000022
WillIam Crawford
PalY Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted tettE3FDate Party Submitted Letter Date
ServicesStaff Training and Development Adult Offender SElrvlceamp Parole Supervision Services West Virginia Correction~1 Industries Work ReleaseCommunity-Based Corrections and Young Adult Center Under the work release section It was noted that the Division of Corrections provides inmate work crews to the Division Of Highways and other community agencies
7 The claimant submitted the newspaper artlole dated July 12 2010 from the Charleston Dally Mall This document was labeled Exhibit A The article Is In refere~e to a S~ial Sec~rity Administration report naming West VIrginia as one of eight stites that give p-rleoners p-erformtng data p-rocesslnllJoba af a correctional facUity ~ess to citizens private Information The Commissioner of the West Virginia Division of COrrections Jim Ruenstein said the Information was incorrect The article stated that prisoners working through a work release program might be able to view such data If a private employer were to show them However it was noted by the Commlssloner that the majOrity of the work release Inmates work In the fast foodshyindustry and not daia proceeslng
8 The claimant submitted the West Virginia Department of HlghwaysJWest Virginia DiVision of Correetions StateWide Convict WorkfOrce Agreement dated April 26 2012 The partles agreed that Corrections would make avaUable to HighwaYS a number of Inmate work creW$ and set forth gneral conditions noting HighWays was to reimburse Corrections for inmate pay HighWays WOuld be reampPQnsible for training transportation and tools AU inmate work crews would be sLJpervlsed by representative of Highways and when clasSIfication levels of Inmate required it CorreQtions would provide Correctional Officers for the pUrpO$8S of preventing an escape only and HfghW$YS would reirnbQJSe the Correctional Offlcel$ payllem 17 noted Highways and Corrections _gree that inmatespetforming serviCes under this agreement will not be employees of the State entitling them to any benefits such employees might have including but not limited to insurance worker oompensatlon benefits pension sick and anriualleave
9 The claimant submitted a Contract for Placement at a Work Release Center signed by the olalmant Thft contract stated that the clalmEmt understOOd and agreed that hls Initial WOrk assignment would be a maintenance type job at the work r81ease center Advancement to other work would be gradual and dependent upon his adjustment at the center and his performance Paragraph 9 atatedthet he agreed and understood that he was responsible for all his medical expenses he Incurred at the Center Further that before receIVing medical ~ttentlon except In an emergency he was to notify the Administrator of the problem and he was to report all prescriPtion medication that he had taken or possessed
10 The claimant submitted the claimanrs Corrections work release record excerpt spanning from November 26 2012 through April 19 2013 The excerpt showed the claimants destination on multiple dates On multiple dates the claimants destination was the Department of Highways (DOH) speclncally on March 28 2013 It
3
000005
William Crawford JCN 2014016722
was noted that his destination on March 28 2013 also Included CAMC General He was paroled on April 19 2013
11 The employer submitted the Work Release Status Master Furlough Agreement dated November 27 2012 The clalmant signed the Agreement In which It was noted that upon furlough he s aware that he was stili under the custody of the West Vlrgln~a DivislQn Qf CorrectlQns The agreement noted that furloughs were considered to be any time he was authorized leave from the Center including visiting with famlly Job seeking work and medical appolntment$ etc
I --------12-middot-The--cl-aJ-m-a-nt-s-ub-m--tte-d-th-e-C-o-nt-ra-c-t-o-r-P-lao-e-m-e-n-t-o-n-R-o-ad-c-II-ew-or-----r-
CommUnity Crew that he signed and dated November 27 2012 noting the claimant had been$Sl~ted for placement on a community workcrewOOH rpad crew It was noted that under item 9 all a~dents were to be reported in writing to the Department of Transportation and the Division of Corrections staff as soon middotas praCtical and uncler Item 20 that while working on a community crewDO road crew program 30 of all wages earned would be deducted from the inmates account for the payment of rent
13 The employer submitted the Financial Information Management System Invotce sheets and Insurance clalmfonns noting medical treatment for the clalmant spanning from MarCh 28 2013 thrQughApril 1$ 2013
14 The employer submitted the typed statement of Darrell Sigmon dated March 282013 Mr Sigmon stated that he and the work release crew were chipping tree bnlnches and the chlpPl)rs chute plllggacJ The Chlpperctlute was rad to remove the clog in the chute and then the motor was shut down The claimant was told by Mr stgmQn and another work release worker Rocky to stay olear of chipper but the claimant plac~ a stick Into the chipper The chipper drum was moving slOWly and it pulled the claimant~shand Into the chipper injuring his hand Mr Sigmon took the alimant to the ~ffice and stated his supervisor took him to CAMe - General
15 The employer submitted the handwritten statement of Rooky Parsons dated March 28 2013 Mr Parsons stated that the crew and the crew supervisor were running the chipper when the chute was plugged With debris He said the cl1lpper had J~ been Shut off and the blades disengaged when the claimant approached the chipper He said he and the supervisor told the claimant not to stick his hands In there ~cause the blades were $till turning He said that the claimant asked If the blades were stili tumlngand at the same time he stuck his hand In the blades The claimant had to be taken to the emerg~ncy room
16 Th claimant submitted the Outy Officer Report dlted March 28 2013 A phone call was received that claimant Inmate had been In an accident wherein his hand was caught In a wood splitter and he was befng sent to CAMC - General for treatment The Department of Highways supervisor would be calling or stopping by to glve an update as soon as possible The claimant had surgery on hIs left hand and ailS fingers
4
000006
JCN 20104016722bullWilliam Crawford
were repaired His pinky finger was broken He had surgery to repair ligament on March 30 2013 and that he would have another surgery at a later date
17 The claimant submitted the Division of CorrecUons Incident Report Which was signed by Darrell Sigmen and dated March 28 2013 It was noted that on March 28 2013 the Department of Highways crew was chipping branches beside the road The chipper had stopped up abou~ four tImes that day The chutemiddot door was open and the chipper was turned over snghtfy to let the debris out While this was being done the claimant pUt a stick Into the chipper pa~ of the machine Ttle chlppef was off but the blade was stili sfigMtyJuming and It Jerked the stick and the claimant did not let loose of It quick enough ihe report stated that the claimant had been warned not to get his hand near the chipper because the blade wa$ stili moving but he did It anyway
Attached to the report were medication formsllog$ noting di$pensatiQn of medications to the claimant on dates spanning from November 26 2012 through March 112013
18 The claimant submitted his statement dated April 4 2013 The claimant stated that the accident occurred on March 29 2013 while he was chipping brush along Corridor G The chipper WfJS not operating properly anCl clogged He said that there were some small vines and branches sticking out from the Chipper and he grabbed one and tried to pull It to shake the chipper free It pule~ his hand into the blades of the chipper He said he did not stick hIS hands Into the chipper
19 The claimant submitted photographs Some pictures depicted an Injured left hand with stitches down the palm and past the wrist WIth Injuries on the palm face of an fingers The ring Imd liltle finger were amp~tated around the proximal Interphalangeal Joints A few photos showed the hand with healed wounds but shoWIng the two partially amputated fingers and a rather long scar from the mid-palm area down past the wrist
20 The claimant submitted a FOIA response rrom the WV Division of Corrections dated December 10 2013 Policies and egrEtementa irade pursuant to W Va Code 25-7-14 and 16 and WVa Code 23-4-18 Were provided A policy of the DMsfpn of Correqtlons dated January 1 2004 was irl9luded which concerned procedures for managing inmate work crews assigned to Division of Highways (DoH) It atated that If an inmate were seriously Injured hetshe should be taken to an emergency room ind that medical treatment must be provided In a timely manner A Correctional Officer was to be assigned to each road crew and the Officer was responsible for ensuring the crew members work the proper safety eqUipment and DOH was to supply all safety equipment The Officer was to ensure all crew members attended all safety meetfngs scheduled by DOH A Policy dated May 1 2013 also noted an agreement between Corrections and DOH It also required a Correctional Officer be aSSigned to eaoh road orew and the Officer was to ensure orews work safety equipment and attended safety meetings DOH provided transportation from the job site back to DOH Accident procedures were discussed Inmates would be paid $580 per hour beginning
5
000007
JCN 2014016722 William Crawford
July 1 2013 Thereafter the rate would remain at eO of the federal minimum wage rate Corrections would establish acertified training course on chainsaw usemiddot to Inmates and only those trained would be permitted to use a chainsaw There was an agreement dated January 11 2000 between Division of Corrections and DOH regarding crews of Inmates iupplled to DOH Inmates fom Correctional Centers would be paid $150 per hour and Inmates from Work Release Centers and Beckley Correctional Cemer would be paid $450 per hour DOH would reimburse Corr~Uons at the rate of $218800 per m()nth per officer Correctl()ns would Invoice DOH for Inmate work performed The agreement stated that Inmates performing services were not empl()yenees of the state entitling them to any benefits such employees might have
---------rin-cl~middotInLgbut not limited to Insurance worker compensation benefltspension sick and annual leave Further Corrections would provide any medical care needed by inmates performing services An agreement dated April 26 2012 provJded Qo~jflollS fQl Corrections to supply Inmale crews to DOH Crews were not permitted to operate heavy motorlz~ equipment or anything larger than a riding lawn mower DOH was to provide safetY equipment Inmates from Correc(lonalCenters and Wortlt Camps Wculd be paid $150 per hour and inmates frOinWork Release Centers and BSCkleyand Ohio County CQfTeQtfonal Centers would be paid $450 per hour until June 30 2012 and then $5~20 beginning July 1 2012 and beginning July 1 2013 the rate Increased to $580 per hour beJng 80 of the federal minimum wage and It would rise and filII In accorclance with the federal minimum wage
21 The claimantsubmitted a Contract for Plaoement at a Work Release Center slgne~ by the claimant dated January 23 2014 The clalm_nt ~ at Pruntytown Correctional Center and was to be put on work release for a probationary 30-day period at Charleston Work Release Center The Contract concerned the verioUl requirements placed on the claimant and It stated that he was agreeing to be responsible for all medical expenses he Incurred while at the Center He also agreed that prfor to receiving medical attention except for an emergenoy he had to notify the Administrator
22 The claimant submitted the employerS answers to Interrogatories and requests for producUon of documents dated January 31 2014 The employer objected to the request of the number of work release inmates Injured during their work for the last five years and tl18 naeof the Injury and other Information The employer did not answer The employer also objected to the Interrogatory aSking whether any workers compensation benefits had been paid and the amount paid However the employer stated that it was unaware of any Inmate ever recelvlng workers compensation benefits for Injuries received while performing services for another state agency Further as wards of the state inmates who require medical care related to services they are providing for a state agency while under authority of the Department of Corrections are provided care through the Department of Corrections In respo088 to Whether the claimant was working for an approved WOrk release program at the time of Injury the employer said that he was under a contract for placement at a work release center and under a Contract for Placement on Road Crew or Community Crew agreement In accordance with a WV DOHIWV Olvlslon of Corrections Statewide Convict Workforce Agreement
e
000008
WIlliam Crawford JON 2014016722
23 The employer submitted an Affidavit of Betty Slack dated June 23 2014 Ms Slaok stated that $he was the Deputy Direclor of WV correctional Industries and had held the position since December 2009 She managed the Prison Industries Enhancement rPIEQ Program for Division of Corrections guided by west Virginia Code)
sectsect25--7-13 and 25-7-14 According to M$ Slack all PIE prograrns must be operated Within the prison setting but none have ever actually operated In West Virginia She said that none of the current Inmate work programs now operating are regulated by PIE
24 The claimant submitted II deposition transcript of Betty Slack dated December 18 2014 Ms Slack testified that she worked as the DeplID Director of the West Virginia Correctfonallnduitrles since 2009 She said she had production shops In the prison facilities that produced fumlture seating printing engraving mattr8$S88 and yarJous Q~er products and that she oversaw productl~ She ove~8$ emploYees both Inmate middotand civilian She sald that certain inmates would be cleared for work and that she could pick them from a list of workers She said there are some Inmate work from the Charleston Work Release that help load and unload trucks and do Janitorial Jobs They are paid hourly She said the Work Release workers are nearing a release from prison She said that the work~r Is not Pflid dlreotly~ the Charlast~ Work Release Center Is paid and It makes deductions for room and board and the rest Is put In the Inmat~ account She said the workers do not receive benefihi She was not familiar With the Charleston Work Release Program ~xceptmiddotth8t she got Inmate workers from thete when requested She noted that Jeff Stinnett is the administrator for the Charleston Work Release Center
25 The claimant submitted a transcript of the deposition of Jeff Stinnett dated february 5 2015 Mr Stlrmett statd that hI was the Administrator of the Charleston Work Release Center on Brooks Street in Charleston WV He stated that he had worked there since 1993~ He stated that he oversees dally operations of the facHlty which has capacity for slxtyslx He stated ~cd he recalled the claimant and that he signed a contract to go to the work release center Mr Stinnett stated that workers sometimes work for other state agencies ~esldes highways but DO H was the only one With a formalized agreement with corrections He stated that there were eligibility criteria for work release He said that some Inmates work at fast food restaurants grocery stores ancl factory work When worklrg In priv~te employment they are paid the same wages as their co-workersand have standard deductions from their pays such as FICA He stated that as far as he knew the private employers reported lhese workers wages for workers compensation purposes Every worker In private or agency work pays 5 dollars per day of their earnings to Corrections for maintenance and support The majority of rest goes Into a trustee ~ount that they receive once discharged but they can get a small amount weekly for basic needs Mr StJnneH stated that he recalled one other Individual injured while working on a Kanawha State Forest crew In the past He stated that there was a new regulation regarding the use of chalnsaws and the size of equipment inmates can operate but these were Highways rules and he was not familiar with them He stated that Corrections teaches chalnsaw training for the Inmate work but not for other equipment Mr Stinnett stated that Health
7
000009
WIlliam Crawford JON 2014016722
Right Is one place Inmates go If they need health oare Which Is billed on a sliding scale and many times is free for the Inmates
26 The claimant submitted a transcript of the deposition of Bobby Williams dated March 31 2015 At the beginning of the dep)$IUon cQunsel for the employer placed on the record an objection to the request for an e)(tenalon of time frame filed by claimants counsel The employer did nCit object to the deposition but did object to the extenslon for the purposes of keeping open the reoord In the protest Mr Williams sttedthat he was employed at the Charleston Work Release Center as a case manager and he Is the em~ment coordinator His duties Include assisting Inmates with parole paperwork and helping them look for work He stated that he recalled the claimant and that he was in an accident He stated that inmates were responslbte for seeking private employment He said he would talk to the inmates and ask If they wanted to work for Highways on a road crew He would look to see where the InmateS WOuld be released and ir It would be In the Charleston area It made $8nse to have them work In the commul1lty He stated that he was not aware of any other residents at his facility that were Injured while working for DOH He stated that he could not recall whether the claimant asked to work for DOH Mr Williams was aware that the claimant was to be paroled to Har~y County which is not within a driving distance for work In Charleston He said that sometimes they transfer Inmates to a work release center closer to where they will be paroled~
27 The claimant filed a clOsing arg~ment dated July 11 2014 The claimant argued that he was entHled to WQrk~rs compensation beneflt$ for an injury IIe received while he was In a prison work release program involving the Department of Highways (DOHiI) The claimant stated that he was seMog a period of confinement at the Charleston Work Release Center and was working for the DOH pursuant to a WQrk release agreement when he was Injured on March 28 2013 He stated that his hand was caught In a wood chipper and was mangled He was treat~d at CAMe where his medical 1)111 Were In excess of $90000 and were paid by the Department of Corrections The claimant said he partfallyamputated fingers of his left hand
Counsel for the clilmant stated that he hid not been ible to Identify the rules and regulations that applied to the Interagency employment of inmates He had found a policy dated August 12013 which postdated the claimants Injury and a work agreement that also postdated the Injury However a January 1 2004 poUcy was In effect at the time It governed the management of Inmate work crews for DOH and stated that In the event of a serious injury an Inmate was to be taken to an emergency room Further the policy Indicated that work release Inmates would have occa$lon to work In situations that may result in aCCidents and may require safety eqUipment There was also an agreement between Corrections and DOH dated April 26 2012 which stated the obligations of each agency for Inmate work crews This agreement provided for training by Corrections for the inmates to learn to safely operate ohalnsaws Further inmates were to be paid $450 per hour The claimant signed an agreement for work release when he was at Pruntytown
a
000010
WiUiam Crawford JCN 2014016722
Counsel noted that WVa Code sect23-4-1e(b) states
(b) Notwithstanding any provision of this code to the contrary no person confined in a state correctional f~iI~y or jail who suffers Injury or a disease In the eour$e of and resulting from his or her work during the period of confinement which work Is imposed by the admlntration of the state correctional facility or Jail and IS not suffered during the persons usual employment with his or her usual eMployer when not confined shall receive benefits under the provisions of this chapter for the InJUry or disease ProVIded That individuals otherwise QOIlftned In a state correctional facility or JaU or at a Juvenile services facility IInd working In a program authorized by sections fourteen or sixteen of article sevenchapter twenty-five of this code shall be eligible to receive benefits under the prov~Jons of this chapter while working In an authorized program The coverage for benefits may be obtained either by the prtvate entity or by agreernentwJth the state agency as specified In subsection (5) subsection (a) of sections fourteen and sixteen of artlc1e sevenchapter twenty-five of this code
Counsel also noted that WVa Code sect23-4-1e(b) referenced sect125-7-14 and 25shy7-16 which relate to a Prison Industry Enhancement (PIE) CertlflcIQn middotProgram Thus counsel said that there were two situatIons In whIch an Inmate is eligible for workersmiddot compensation benefits - working for PrISon Industries and working in the private sector pn work release The clamant argued thet there was no rational baels to discriminate betWeen prisoner classifications regarding workers compensation benefits The claimant was performing work that was of such nature that he could have done for a private employer He argued that there was no significant difference In status between the claimant and an inmate working for Prison Industries or placed in priVlllte employment who Is covered by workers compensation
Counsel noted significant differences between the 2012 agreement and earlier agreement$ The 2012 agreement provides that Inmates shall not operate equIpment larger than a riding lawn mower Further Inmates are not to use cnalnsaws WIthout special training Counsel argued that the hazardousness of operaUg wood Chippers Is shown In publications by OSHA
Citing state ex reI Boan vs Richardson 482 SE 2d 162 foNVa 1986) counsel argued that the Supreme Court of Appeals has held that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In similar circumstances and that any such statute violates the equal protection clause Art III Section 10 of the WVa Constltltlon The Court stated tJ1at It would look to whether the classlflcatlon was rational and based on social economIc historic or geographic factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally
9
000011
wiUlam Crawford JON 2014016722
The claimant argued that he was a member of a class of Incarcerated prisoners In which all persons are not treated equally Some of these workers are mandated to receive workers compensation and others are not The dlfferentiaUon between class members had nothing to do with the work performed 8$ he colfld have operated a wood chipper for a private employer Further placement In work Is not a function of anything other than availability of work so It middotIs a matter of chance or fate There was no rational basis on which to diSCriminate betwen Inmates W~rklng for Prison Indmries Working In private employment or working for a state agency The claimant argued that the denial of workers compensation to the claimant under these circumstances does not
_____--advance-LreasonablLgoveOlmemal--Dteresl_[bLretnedieLavallable_Jo_prlvaleyen-y--shyemployed inmates and state employed Inmates are different In that privately employ Inmet are coverd by workers CQmpensatl~n whereas those employed by a _e middotagencyrenot The onlymiddot remedy for astate employed InmatemiddotJsmiddota claim-under 42U$C 1983 for cruel and unusual punishment but this claim rqulres proof of deliberate jndlmrence middotto the hazard aOd this burden of proof Is eXtremely dlfllculttb meet Thus there are substantial dltterences In the remedies available to Inmates injured middoton the Job The ~almant also noted that Inmates engaged In work for the state re paid very low wag and had he been empfoyed by a PriVate employer he would have had benefit of workers compensation coverage
28 The employer filed a closing argument dated August 21 2014 Th employer argued that the ofalm was properly rejected because the clalmamiddotnl did not suffer an Injury In the course of and Ii result middotof covered employment The employer argued that the claimant was not an emplQyeeentiUed to workers compenSation ~ntlts Th employer noted ~hBt the Qlalrnant wa~ In~arcetated at the time of the Injury He was working on March 28 2013 on Corridor G for the Department of Highways when his hand was caught In a wood chipper He was nated at CAMe and his medical bills were paid by ttl Department of Corrections The employer felt that the circumstances of how the claimant became Injured were Irrelevant to compensability The employer stated that there was flO dispute that the claimant was performhig $8rvlces for DOH as part of his connnement at the Charleston Work Release Center He signed an agreement on November 27 2012 whkh was subject to a Contract for Placement at amiddot Work Release Center that he also signed His dUties with DOH were contingent on hlsmiddotContract for Placement on Road Crew or communitY Crew whIoh he signed on November 27 2012 The employer argued that according to documents raled to the agreement between the Department of Corrections and DOH Corrections would provide DOH with Inmates to perform dUUes for pOH The agreement outlined the terms and canditi~ related to the use of Inmate services and the compensation that Corrections would receive on behalf of the Inmates The agreement provided that the Inmates p$rforrrdog servfc~ under this agreement will not be employees of the State entitling them to any benefits such employees might have including but not limited to Insurance worker compensation benefits pensions sick and annual leaveII
The employer argued that the only wayan Inmate would be entiHed to workers compensation benefitS Is pursuant to placement In a program established under WVa Code sect25-7-14 or sect25-7-16 which apply to programs estabUshed to the federal Prison
10
000012
William Crawford JON 2014016722
Industry Enhancement (PIE) Certification Program The evidence shows that to date no such programs have ever existed and no DOCDOH road crew program Ie part of PIE
The employer argued that WVa Code sect23-2-1deflnea employer and sect 2~2-1a defines aemployeeD The employer argued that the claimant Is barred from receiving workers compensation benefits due to his status as an Incarcerated individual at the time of his injury because WVa Code sect23-4-1eb) provides that I[n)otwlthstandlng any provislcm of this code to the contrary no person confined hi a state correctional facility
____-----Dr_JaILwbo-suffersJnJWyen--DudlseaseJnJbeMursUlLand1uuJtlng1mmltlsoLhe( w~ork_____ during the period of confinement whiCh work Is Imposed by the ~dmlnlstratlon of the state correctional facility or Jail and is not suffered during the persons usual employment with his or her usUal employer when not conftnedshall receive benem under the provisions of thl~ chapter for the injury or d~ease
The employer argued that the code 8peclfie$ that an Inmate Is not entitled to workers compenSation If Injured while completing work imposed by the administration ofthe state correctional facility or jail However had he been working in a PIE program he would hav~ been enHtled to workers cC)mpensation beneflts The employer argued that tbe claimants closing argument confirmed this finding- but he argues that his constitutional rights have been violated In response the employer argued th~t the PIE program flowed out of federal leglslatlcm and (hat the clear and rational basis for the requirement that private employers provide workers compensation ooverage for Inmate employees under the Pie program is 80 no unfair advantage la given to the private employer
The employer argued that the olaimants constitutional argument falla and that his only recourse Is to petition the legislature for a change In the current law However the employer argued that any determination by the Court that all Inmates are entitled to workers compensation benefits would slgnlJlcantIy ImpaCt the states budget
29 The claimant flied a Reply to Closing Argument and Exhibits dated August 26 2014 The claimant clarified that his argument based upon the PIE program was based upon the employers affidavit Indicating that program Is dormant He stated that even If the PIE program had remained dormant this did not mean that Inmates were only empioyed by DOH and that statements by the Director of Division of Corrections and the Governors BUdget document clearly state that Inmates are employed In the private sector The claimant attached Exhibit A to this filing and he stated that In this attachment Mr Rubenstein stated that the majority of Inmates -e empoyed In fast food industry and restaurants The claimant again argued that there was a dlaparate treatment between inmates who work for the Department of transportation and those In any kind of private employment and this was a violation of the Canstltudan
30 The employer filed a Response to Closing Argument and exhibits dated September 9 2014 The employer argued that the claimants reply was submitted on
11
000013
WIUlam Crawford JCN 2014016722
August 26 2014 which was filed after the ten day prlod for case summation pursuant to WVa CSR sect 93~1-65 since the time frame expired on August 11 2014
The employer stated that the provlslons of Article 7 of Chapter 25 of the West Virginia Code were drafted to comply with 18 USC sect 1161 (c) the PIE program The federal legislation allOWS state andmiddot local prisons to be exempt from federal restrictions on prisoner-made goods entering Inte_te commerce and allOWS private individuals tn some clrcumst~mces to hire Inmates for production of goods However the Inmates must be paid similar wages 80 as not to allow a private Industry to obtilhlan unfair
------_advantagacomparecUO-the-prlva~sector~-ThaemployJtr--8tatedJbaUmgatiorLl8gamlng_______ 18 OSC sect 1761(0) Is cleaithal Its purpose Is to protect private businesses and that It was not enacted to protect Inmate workers The ernp~oyer cited McMaster v Minnesota 30 F3d 9679811994 US App Lexls 1861816 (8middot CIr Minn 1994)
31 The employer flied a Seoond Closing Argument ~ated MarQh 162015 The employer stated that the Issue was whether the claimant was entitled to receive workers compensation benems after sustainIng an injury while working for DIVIsion of HlghwaY$ on a work crew from the Chal1stQn Work Release Center The employer noted that the claimant signed a Maser Furlough Agreement on November 27 2012 He also signed a Contract for Placement at a Work Release Center His duties WIth DOH were contingent on a Contract for Placement on Road Crew or Community Crew which he signed on November 272012
The employer noted that there were agreements between Department of Corrections and Division of Highways regarding Inmate servk Neither DOH nor DOC conSidered the Inmate workers fo be employees and the contract stated that they were not employees of the State and not entitled to employee benefits Including degworker compens~lljon
The employer argued that the only conditions under which an Inmate is entitled to workers compensation benefits Is if he were placed In a Prison Industry Enhancement (PIE) Certification Program under WVa Codmiddote sect 25-7-14 or sect25-7-16 Ther have never been any PIE programs In West Virginia and so the claimant was not part of this program
The employer responded to the claimants argument that inmates employed in the private sector outside the PIE program and they are coved by workers compensation and thus the noncoverage for inmates such as the claimant Is unconstitutional The employer argued that Ms Slack testified that Correctional Industries operates about 17 production shops In which inmates work Some Inmates from the Charleston Work Release Center assist but none of the (nmates receive benefits Mr stinnett administrator of the Charleston Work Release Centertestlfled that there were criteria for Inmates to be placed at the Work Release Center and there was a running list of Inmates who desired placement When a bed opened an Inmate Is placed there He stated that about 45 Inmates work In private Industry rather than with
12
000014
William Crawford JCN 2014016722
the State The C~nter attempted to get private Jobs for inmates who would ultimately be released In Charleston so that they can continue to work when reJeased
The employer argued that the clalm_nt was barred from receiving workers compensation duetohts Incarceration at the time of his inJury pursuant to WVa Code sect23-4-1e The employer noted that PIE program Inmates are provided coverage by the private employer and that the purpose of this was to Implement federal regulations and protect private businesses from unfair competition Thus there is a clear and rational basis for dlff8f~mces between Inmates wC)fklng for private employers In a PIE program
32 The claimant filed a Supplemental Closing Argument dated March 20 2015 The claimant argued that the statutory framework regarding work- rajease and the provision of beneflt$ and the Implementation of the statute by the Department of Corrections violates the equal protection clause The claimant argued that not only do Inmates who woUld work under the PIE program Of ever Imptemerited) receive workers comperl$ation ~enet1ts but those who are released to work in the private sector receive workers compensation and other benefits The claImant argued that those who work for Department of Highways do not relieve the ame benfllsas those similrly situated Inmates whQ work In private sector jobs and this is discrimination with no reasonabie basis
33 Counsel for the claimant and the employer presented closing arguments at a hearlng on May 5 2015 Cou for the claimant _ated that the Issue was oompensabllityfor an Inmate Who Injured his hand while working for a Division of Highways crew while at a Work Release Center Counsel for the claimant cited State ex ret Boan VS Richardson 482 SE 2d 162 ~Va 1966) IInd argued that the SUpreme Court of Appeals ruled that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In slmUar circumstances and that any suqh statute violates the equal protectlcm clause Art IU SeCtion 10 of the WVa Constitution Counsel stated that had the claimant worked for a private employer he would have been covered j)y workers compensation There are no rules or regulaUons governing whether an Inmate works for DOH or a private employer Thus there Is no rational basiS for how they are assigned Underbn the elaimant argued he has been wrongfully dlscrfmlnated against
The employer stated that the claimant was barred frQm receiving workers compensatlc)O WVa Code sect23-4-1e(b) He was an Inmate subject to confinement and was not In a PIE program which Is an exception The participant Inmates are stUI Incarcerated While In the Work Release program The OOJ has no authority to decide the statute Is Constitutional The claimants remedy Is to convince the state legislature to change the statute Counsel for the employer stated that his mecilcal bills were covred by Department of Corrections Counsel argued that the OOJ must affirm the Order Counsel Indicated that once paroled the claimant was not eligible for further medIcal treatment to be paid by Department of Corrections
13
000015
William Crawford JCN 2014016722
DISCUSSION
This case Is before the OffIce of Judges based on a protest to the Order regarding tbe compensElbllltyof the claim W- Virgins Code -523-4-1 provides for benefits to employees who receive an Injury In the course of and as a result of their covered employment The more preci$e $Sue presented hre Is whether the claimant Is entitled to benefits for an InjJJry he received while he waS an inmate working on a crew pursuant to agreements between himselfi the Department of corrections and DMslon of Highways
i ---------------------------------------------------------------------~-
W Va Code sect23-4-1 9 provides that for all awards made on and after July 1 I 2003 the resolution of any Issue shall be ba~ upon a weighing of atl evldenoe pertelnlng -lothe Issue and a finding that8 preponderance of themiddot evidence supportsmiddot the chosen manner of resolution The process of weighing evld~nce $hall include ~ut not be limited to an assessmei1t of the r~lecC credlblRty materiality and rellabllty that the evidence possesses In the context of the Issue presented No Issue may be resolved by allOWing certain evidence to be diSpositive Simply because It Is reflable and Is mosJ favor-ble to a partys Intrests or position The resolution of Issues n claims for compensation must be decided on the merits and not according to any prinCiple that requir statut governing workers ~ompeJS~lon to be Ilb~rally conStrued because th~V are remedialili natute If after weighing all of the evidence regarding an Issue there Is a finding that an equal amount of evidentiary weight ~$ for each side the resoltiQcm that is most con$lstent With the claUnant$ position Will be adopted
Preponderence of the evldenQe means proof that $omethlng Is more likely 80 thail nbt ~o In other words a preponderance Of the evidence means such evidence when considered and compared with opposing evidence Is more pe~uaslve or convincing Pre~nderance of the evidence may not be determined by merely counting the number of witnesses reports evaluations or other items of evidence Rathermiddotft Is datennlned by assessing the persaslven8$Sof the evidence Includlng the opportUnity for knowledge Information possessed and manner of testifying or reporting
While working on a highway crew on March 282013 the claiment badly Injured his hand In a wood chipper While there are some variances In the claimants statements compared to witneamp$ statements about the particulars of the InJury none of those differences would change the outcome of this Decision and thus are not relevant to the discussion There Is no dispute that the claimant was Injured as a result of his work on the road crew while he was an inmate at the Charleston Work Release Centr His inJuries fe$ulted In surgery and hospitalization at CAMC where his medical bills In e)(cees of $90000 were paId by the Department of Corrections He was paroled soon after he was released from the hospital
The claim was rejected by an Order dated November 15 2013 which denied the application for benefits as it was determined that he did not sustain an Injury In the course of and resulting from his employment The claim administrators Investigation
14
000016
WilHam Crawford JON 2014016722
Inmates and that they must pay them the same wages non-Inmate workers and they must provide workers compensation coverage for them (See deposition of Jeff stinnett Administrator of the Charleston Work Release Center dated February 5 2015) Most of the private employment of Inmates 18 In fast food reurants grocery stores and factorieS Bobby WIlliams a case manager at the Charleston Work Release Center testified on March 31 2015 that he talked tolnmat~ to see If they wanted to work on a DOH crew He said that to m It made sense to place inmates In posiUons In the community In which they would be released The claimant was to be paroled to Hardy County which Is not within a driving distance to Charleston
The claimant argued that there were no rules or regJlations that would determine -shywhether an Inmate was placed In a private companymiddot or with DOH However this placement- would middotdetermln their fate If -they were InJured While on work refeaee Counsel for the claimant argued that this disparate treatment was discriminatory Counsel cited the West Virginia Supreme Court of Appeals holding In State ex ret Boan YS RlcIDardson 482 se 2d 162 ~va 1966) In which the court held that a workers compensation statute atfeQtlng economic rights may not be used to discriminate among a class of In~lvl~uals In similar circumstances and that any such statute violates the equal protection clause Art IU Section 10 of ttle WVa Constitution The Court stated that ~ would look to whe~her the classffication was rational and Qbased on socliil economic historic or geographIc factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally Id at 164 The claimant argued that he was a inmbar of Incarcerated prisoners in Which all persons weranot treated equally In that some qualified for workers compensation coverage and others did not
There Is no disagreement In this case that W Va Code sect23-4-1e(b) bars the claimant frC)O1 r~elpt of workers compensation benefltB The claimant argues that this law Is unconstltutlonal The Offlce of Judges Is not an Article III Court and does not have jurisdiction to rule a sttule is unconstitutional Therefore itmiddot1S found that the Order properly rejected the claim pursuant to W Va Code sect23-41e(b)
CONCWSlONS OF LAW
Pursuant to W Va Code sect23-4-1e(b) the claimant is ineligible to receive workers compensation benefits fer an Injury he received while In a Work Release Center performing work for Division of Highways In accordance With agreements with Department of Corrections
It Is therefore ORDERED that the Claim Administrators Order dated November 152013 be AFFIRMED
16
000017
William Crawford JON 2014016722
APPEAL RIGHTS
Under the provisions of WVa Code sect23-5-12 any aggrieved party may file a written appeal wlthlnthJrty (30) days after receipt of any decision or action of the Administrative Law Judge The appeal shall be filed ~Irectly with the Workrs Compensation Board of Review at PO Box 2828 Cha~eston WV 263~9
Date July 6bull 2015
RibcCca S CharI Administrative Law ludp
RSCQtc
cc WILUAM F CRAWFORD JOHN HENRY SKAGGS -COUNSEL FOR CLAIMANT DEPT OF CORRECTIONS-WORK RELEASE LISA WARNER HUNTER - COUNSEL FOR EMPLOYER AMERiCAN ZURICH INS CO
17
000018
William Crawford JCN 2014016722
JCN
Date
2014016722
July 6 2015
ReconJ Considered
The Clalmanfs protest to the Claims Administrators order Of regarding REJECTION OF CLAIM
November 15 2013
EVIDENCE SUBMITTED
Claimant Evidence
Document Type Not Specified Document Date 11112000 Submit Date 6Q012014 Author EMPlOYERICLAIMANT - WORK AGREEMENT
DoaIment Type NotSpepified Document Date 1112OQ4 Submit Date 612012014 Author WV DIVISIONS OF CORRECTIONS - POUCY
OIRECnVE
Document Type Not Specified Document Date 41112006 Submit Date 612012014 Author CHIPPERISHREDOER SAFElY - K-STATE
ARTICLE
Document Type Oocum~nt Dale Submit Date
Not Specified 41612008 612012014
18
000019
Willism Crawford JON 2014016722
Author HAZARDS OF WOOD CHIPPERS - OSHAOOV
Document Type Not-Specified Document Date 7112010 Submit Date 812612014 Author DIVISION OF CORRECTIONS-2010 EXECUTIVE BUDGET
STATEMENT
Document Type Not Specified-----DocumenrDste=------r71t212010----------------------- ----
Submit Date 812612014 Author NEWSPAPER ARTICLE~DEPTOF CORR~CTIONS
Document Type NotSpecified Oocument Date 412612012 Submit 08te612012014 Author CONVICT WORKFoRCE AGREEMENT
Document Type -Not Specifted Document pate 4I26J2012 Submit Date 812012014 Author CLAIMANT - CONTRACT FOR PLACEMENT
Document Type NotSpeCified [)(lcument Date 1112612012 Submit Date 1123i2014 Author WORK RELEASE RECORD (111261122-19-13)
Document Type Not Speclfjed Document Date 1112712012 Submit Date 112312014 Author CONTRACTIPLACEMENT ON ROADCOMMUNITV
CREW
Document Type Not Specified Document Date 312812013 Submit Date 112312014 Author DUTY OFFICER REPORT
Document Type Not Specified Document Date 32812013 Submit Date 1232014 Author INCIDENT REPORT WITH ATTACHED MEDICATION
FORMS
19
000020
William Crawford JCN2014016722
Document Type Not Specified Document Dale 4412013 Submit Date 112312014 Author WILLIAM CRAWFO~D ~ STATEMENT
Document Type Not Specified DocUment Dale 412512013 Submit Date 611912014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 121102013 Submit Date 1l23t014 Aulhor CLAIMANTS DEPT OF CORRECTIONS FILE
Document Type Not Specified Document Date 12312014 Submit Date 112312014 Author CLAIMANT - CONTRACT PLACEMENTIWORK RELEASE
CENTER-UNDATED
Document Type NotSpeclfied Document De 113112014 Submit Date 2412014 Author EMPLOYER INTERROGATORIES
Document Type Not Specified Document Date 62312014 Submit Date 012312014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 12118204 Submit Date 11412015 Author BETIY SLACKmiddot DEPOSITION
Document Type Not Specified Document Date 21512015 Submit Date 212612015 Author JEFF STINNETTmiddot DEPOSITION WIEXHIBiTS
Document Type Not Specified Document Date 313112015 Submit Date 412212015 Author BOBBY WILUAMS - DEPOSITION
20
000021
JCN 2014016722WlUlam Crawford
Emglgyer Evid8DC8
Document Type Npt Specified ------f)ocumentDate--tlf2mo2-------------------- shy
$lIbmiiOate 73112014 Author WORK RELEASE STATUS MASTER FURLOUGH
AGREEMENT
Document Type Not Sp~lfied Document Date 312812013 Submit Date 713112014 Author OFFICE OF WV AUDITORmiddot FINANCIAL INFO MANAGEMENT
SYSTEM INVOICE SHEETS
Document Type Not Specified Document Date 312812013 Subinlt Date 713112014 Author DARRELL SIGMON - STATEMENT
Document Type Not Specified Document Date 31282013 Submit Date 713112014 Author ROCKY pARSONSmiddot STATEMENT
D~umentType Not Specified Document Date 612312014 Submit Date 713112014 Author BETTY SLACKmiddot AFFIDAVIT
CLOSING ARGUMENTS
21
000022
WillIam Crawford
PalY Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted tettE3FDate Party Submitted Letter Date
was noted that his destination on March 28 2013 also Included CAMC General He was paroled on April 19 2013
11 The employer submitted the Work Release Status Master Furlough Agreement dated November 27 2012 The clalmant signed the Agreement In which It was noted that upon furlough he s aware that he was stili under the custody of the West Vlrgln~a DivislQn Qf CorrectlQns The agreement noted that furloughs were considered to be any time he was authorized leave from the Center including visiting with famlly Job seeking work and medical appolntment$ etc
I --------12-middot-The--cl-aJ-m-a-nt-s-ub-m--tte-d-th-e-C-o-nt-ra-c-t-o-r-P-lao-e-m-e-n-t-o-n-R-o-ad-c-II-ew-or-----r-
CommUnity Crew that he signed and dated November 27 2012 noting the claimant had been$Sl~ted for placement on a community workcrewOOH rpad crew It was noted that under item 9 all a~dents were to be reported in writing to the Department of Transportation and the Division of Corrections staff as soon middotas praCtical and uncler Item 20 that while working on a community crewDO road crew program 30 of all wages earned would be deducted from the inmates account for the payment of rent
13 The employer submitted the Financial Information Management System Invotce sheets and Insurance clalmfonns noting medical treatment for the clalmant spanning from MarCh 28 2013 thrQughApril 1$ 2013
14 The employer submitted the typed statement of Darrell Sigmon dated March 282013 Mr Sigmon stated that he and the work release crew were chipping tree bnlnches and the chlpPl)rs chute plllggacJ The Chlpperctlute was rad to remove the clog in the chute and then the motor was shut down The claimant was told by Mr stgmQn and another work release worker Rocky to stay olear of chipper but the claimant plac~ a stick Into the chipper The chipper drum was moving slOWly and it pulled the claimant~shand Into the chipper injuring his hand Mr Sigmon took the alimant to the ~ffice and stated his supervisor took him to CAMe - General
15 The employer submitted the handwritten statement of Rooky Parsons dated March 28 2013 Mr Parsons stated that the crew and the crew supervisor were running the chipper when the chute was plugged With debris He said the cl1lpper had J~ been Shut off and the blades disengaged when the claimant approached the chipper He said he and the supervisor told the claimant not to stick his hands In there ~cause the blades were $till turning He said that the claimant asked If the blades were stili tumlngand at the same time he stuck his hand In the blades The claimant had to be taken to the emerg~ncy room
16 Th claimant submitted the Outy Officer Report dlted March 28 2013 A phone call was received that claimant Inmate had been In an accident wherein his hand was caught In a wood splitter and he was befng sent to CAMC - General for treatment The Department of Highways supervisor would be calling or stopping by to glve an update as soon as possible The claimant had surgery on hIs left hand and ailS fingers
4
000006
JCN 20104016722bullWilliam Crawford
were repaired His pinky finger was broken He had surgery to repair ligament on March 30 2013 and that he would have another surgery at a later date
17 The claimant submitted the Division of CorrecUons Incident Report Which was signed by Darrell Sigmen and dated March 28 2013 It was noted that on March 28 2013 the Department of Highways crew was chipping branches beside the road The chipper had stopped up abou~ four tImes that day The chutemiddot door was open and the chipper was turned over snghtfy to let the debris out While this was being done the claimant pUt a stick Into the chipper pa~ of the machine Ttle chlppef was off but the blade was stili sfigMtyJuming and It Jerked the stick and the claimant did not let loose of It quick enough ihe report stated that the claimant had been warned not to get his hand near the chipper because the blade wa$ stili moving but he did It anyway
Attached to the report were medication formsllog$ noting di$pensatiQn of medications to the claimant on dates spanning from November 26 2012 through March 112013
18 The claimant submitted his statement dated April 4 2013 The claimant stated that the accident occurred on March 29 2013 while he was chipping brush along Corridor G The chipper WfJS not operating properly anCl clogged He said that there were some small vines and branches sticking out from the Chipper and he grabbed one and tried to pull It to shake the chipper free It pule~ his hand into the blades of the chipper He said he did not stick hIS hands Into the chipper
19 The claimant submitted photographs Some pictures depicted an Injured left hand with stitches down the palm and past the wrist WIth Injuries on the palm face of an fingers The ring Imd liltle finger were amp~tated around the proximal Interphalangeal Joints A few photos showed the hand with healed wounds but shoWIng the two partially amputated fingers and a rather long scar from the mid-palm area down past the wrist
20 The claimant submitted a FOIA response rrom the WV Division of Corrections dated December 10 2013 Policies and egrEtementa irade pursuant to W Va Code 25-7-14 and 16 and WVa Code 23-4-18 Were provided A policy of the DMsfpn of Correqtlons dated January 1 2004 was irl9luded which concerned procedures for managing inmate work crews assigned to Division of Highways (DoH) It atated that If an inmate were seriously Injured hetshe should be taken to an emergency room ind that medical treatment must be provided In a timely manner A Correctional Officer was to be assigned to each road crew and the Officer was responsible for ensuring the crew members work the proper safety eqUipment and DOH was to supply all safety equipment The Officer was to ensure all crew members attended all safety meetfngs scheduled by DOH A Policy dated May 1 2013 also noted an agreement between Corrections and DOH It also required a Correctional Officer be aSSigned to eaoh road orew and the Officer was to ensure orews work safety equipment and attended safety meetings DOH provided transportation from the job site back to DOH Accident procedures were discussed Inmates would be paid $580 per hour beginning
5
000007
JCN 2014016722 William Crawford
July 1 2013 Thereafter the rate would remain at eO of the federal minimum wage rate Corrections would establish acertified training course on chainsaw usemiddot to Inmates and only those trained would be permitted to use a chainsaw There was an agreement dated January 11 2000 between Division of Corrections and DOH regarding crews of Inmates iupplled to DOH Inmates fom Correctional Centers would be paid $150 per hour and Inmates from Work Release Centers and Beckley Correctional Cemer would be paid $450 per hour DOH would reimburse Corr~Uons at the rate of $218800 per m()nth per officer Correctl()ns would Invoice DOH for Inmate work performed The agreement stated that Inmates performing services were not empl()yenees of the state entitling them to any benefits such employees might have
---------rin-cl~middotInLgbut not limited to Insurance worker compensation benefltspension sick and annual leave Further Corrections would provide any medical care needed by inmates performing services An agreement dated April 26 2012 provJded Qo~jflollS fQl Corrections to supply Inmale crews to DOH Crews were not permitted to operate heavy motorlz~ equipment or anything larger than a riding lawn mower DOH was to provide safetY equipment Inmates from Correc(lonalCenters and Wortlt Camps Wculd be paid $150 per hour and inmates frOinWork Release Centers and BSCkleyand Ohio County CQfTeQtfonal Centers would be paid $450 per hour until June 30 2012 and then $5~20 beginning July 1 2012 and beginning July 1 2013 the rate Increased to $580 per hour beJng 80 of the federal minimum wage and It would rise and filII In accorclance with the federal minimum wage
21 The claimantsubmitted a Contract for Plaoement at a Work Release Center slgne~ by the claimant dated January 23 2014 The clalm_nt ~ at Pruntytown Correctional Center and was to be put on work release for a probationary 30-day period at Charleston Work Release Center The Contract concerned the verioUl requirements placed on the claimant and It stated that he was agreeing to be responsible for all medical expenses he Incurred while at the Center He also agreed that prfor to receiving medical attention except for an emergenoy he had to notify the Administrator
22 The claimant submitted the employerS answers to Interrogatories and requests for producUon of documents dated January 31 2014 The employer objected to the request of the number of work release inmates Injured during their work for the last five years and tl18 naeof the Injury and other Information The employer did not answer The employer also objected to the Interrogatory aSking whether any workers compensation benefits had been paid and the amount paid However the employer stated that it was unaware of any Inmate ever recelvlng workers compensation benefits for Injuries received while performing services for another state agency Further as wards of the state inmates who require medical care related to services they are providing for a state agency while under authority of the Department of Corrections are provided care through the Department of Corrections In respo088 to Whether the claimant was working for an approved WOrk release program at the time of Injury the employer said that he was under a contract for placement at a work release center and under a Contract for Placement on Road Crew or Community Crew agreement In accordance with a WV DOHIWV Olvlslon of Corrections Statewide Convict Workforce Agreement
e
000008
WIlliam Crawford JON 2014016722
23 The employer submitted an Affidavit of Betty Slack dated June 23 2014 Ms Slaok stated that $he was the Deputy Direclor of WV correctional Industries and had held the position since December 2009 She managed the Prison Industries Enhancement rPIEQ Program for Division of Corrections guided by west Virginia Code)
sectsect25--7-13 and 25-7-14 According to M$ Slack all PIE prograrns must be operated Within the prison setting but none have ever actually operated In West Virginia She said that none of the current Inmate work programs now operating are regulated by PIE
24 The claimant submitted II deposition transcript of Betty Slack dated December 18 2014 Ms Slack testified that she worked as the DeplID Director of the West Virginia Correctfonallnduitrles since 2009 She said she had production shops In the prison facilities that produced fumlture seating printing engraving mattr8$S88 and yarJous Q~er products and that she oversaw productl~ She ove~8$ emploYees both Inmate middotand civilian She sald that certain inmates would be cleared for work and that she could pick them from a list of workers She said there are some Inmate work from the Charleston Work Release that help load and unload trucks and do Janitorial Jobs They are paid hourly She said the Work Release workers are nearing a release from prison She said that the work~r Is not Pflid dlreotly~ the Charlast~ Work Release Center Is paid and It makes deductions for room and board and the rest Is put In the Inmat~ account She said the workers do not receive benefihi She was not familiar With the Charleston Work Release Program ~xceptmiddotth8t she got Inmate workers from thete when requested She noted that Jeff Stinnett is the administrator for the Charleston Work Release Center
25 The claimant submitted a transcript of the deposition of Jeff Stinnett dated february 5 2015 Mr Stlrmett statd that hI was the Administrator of the Charleston Work Release Center on Brooks Street in Charleston WV He stated that he had worked there since 1993~ He stated that he oversees dally operations of the facHlty which has capacity for slxtyslx He stated ~cd he recalled the claimant and that he signed a contract to go to the work release center Mr Stinnett stated that workers sometimes work for other state agencies ~esldes highways but DO H was the only one With a formalized agreement with corrections He stated that there were eligibility criteria for work release He said that some Inmates work at fast food restaurants grocery stores ancl factory work When worklrg In priv~te employment they are paid the same wages as their co-workersand have standard deductions from their pays such as FICA He stated that as far as he knew the private employers reported lhese workers wages for workers compensation purposes Every worker In private or agency work pays 5 dollars per day of their earnings to Corrections for maintenance and support The majority of rest goes Into a trustee ~ount that they receive once discharged but they can get a small amount weekly for basic needs Mr StJnneH stated that he recalled one other Individual injured while working on a Kanawha State Forest crew In the past He stated that there was a new regulation regarding the use of chalnsaws and the size of equipment inmates can operate but these were Highways rules and he was not familiar with them He stated that Corrections teaches chalnsaw training for the Inmate work but not for other equipment Mr Stinnett stated that Health
7
000009
WIlliam Crawford JON 2014016722
Right Is one place Inmates go If they need health oare Which Is billed on a sliding scale and many times is free for the Inmates
26 The claimant submitted a transcript of the deposition of Bobby Williams dated March 31 2015 At the beginning of the dep)$IUon cQunsel for the employer placed on the record an objection to the request for an e)(tenalon of time frame filed by claimants counsel The employer did nCit object to the deposition but did object to the extenslon for the purposes of keeping open the reoord In the protest Mr Williams sttedthat he was employed at the Charleston Work Release Center as a case manager and he Is the em~ment coordinator His duties Include assisting Inmates with parole paperwork and helping them look for work He stated that he recalled the claimant and that he was in an accident He stated that inmates were responslbte for seeking private employment He said he would talk to the inmates and ask If they wanted to work for Highways on a road crew He would look to see where the InmateS WOuld be released and ir It would be In the Charleston area It made $8nse to have them work In the commul1lty He stated that he was not aware of any other residents at his facility that were Injured while working for DOH He stated that he could not recall whether the claimant asked to work for DOH Mr Williams was aware that the claimant was to be paroled to Har~y County which is not within a driving distance for work In Charleston He said that sometimes they transfer Inmates to a work release center closer to where they will be paroled~
27 The claimant filed a clOsing arg~ment dated July 11 2014 The claimant argued that he was entHled to WQrk~rs compensation beneflt$ for an injury IIe received while he was In a prison work release program involving the Department of Highways (DOHiI) The claimant stated that he was seMog a period of confinement at the Charleston Work Release Center and was working for the DOH pursuant to a WQrk release agreement when he was Injured on March 28 2013 He stated that his hand was caught In a wood chipper and was mangled He was treat~d at CAMe where his medical 1)111 Were In excess of $90000 and were paid by the Department of Corrections The claimant said he partfallyamputated fingers of his left hand
Counsel for the clilmant stated that he hid not been ible to Identify the rules and regulations that applied to the Interagency employment of inmates He had found a policy dated August 12013 which postdated the claimants Injury and a work agreement that also postdated the Injury However a January 1 2004 poUcy was In effect at the time It governed the management of Inmate work crews for DOH and stated that In the event of a serious injury an Inmate was to be taken to an emergency room Further the policy Indicated that work release Inmates would have occa$lon to work In situations that may result in aCCidents and may require safety eqUipment There was also an agreement between Corrections and DOH dated April 26 2012 which stated the obligations of each agency for Inmate work crews This agreement provided for training by Corrections for the inmates to learn to safely operate ohalnsaws Further inmates were to be paid $450 per hour The claimant signed an agreement for work release when he was at Pruntytown
a
000010
WiUiam Crawford JCN 2014016722
Counsel noted that WVa Code sect23-4-1e(b) states
(b) Notwithstanding any provision of this code to the contrary no person confined in a state correctional f~iI~y or jail who suffers Injury or a disease In the eour$e of and resulting from his or her work during the period of confinement which work Is imposed by the admlntration of the state correctional facility or Jail and IS not suffered during the persons usual employment with his or her usual eMployer when not confined shall receive benefits under the provisions of this chapter for the InJUry or disease ProVIded That individuals otherwise QOIlftned In a state correctional facility or JaU or at a Juvenile services facility IInd working In a program authorized by sections fourteen or sixteen of article sevenchapter twenty-five of this code shall be eligible to receive benefits under the prov~Jons of this chapter while working In an authorized program The coverage for benefits may be obtained either by the prtvate entity or by agreernentwJth the state agency as specified In subsection (5) subsection (a) of sections fourteen and sixteen of artlc1e sevenchapter twenty-five of this code
Counsel also noted that WVa Code sect23-4-1e(b) referenced sect125-7-14 and 25shy7-16 which relate to a Prison Industry Enhancement (PIE) CertlflcIQn middotProgram Thus counsel said that there were two situatIons In whIch an Inmate is eligible for workersmiddot compensation benefits - working for PrISon Industries and working in the private sector pn work release The clamant argued thet there was no rational baels to discriminate betWeen prisoner classifications regarding workers compensation benefits The claimant was performing work that was of such nature that he could have done for a private employer He argued that there was no significant difference In status between the claimant and an inmate working for Prison Industries or placed in priVlllte employment who Is covered by workers compensation
Counsel noted significant differences between the 2012 agreement and earlier agreement$ The 2012 agreement provides that Inmates shall not operate equIpment larger than a riding lawn mower Further Inmates are not to use cnalnsaws WIthout special training Counsel argued that the hazardousness of operaUg wood Chippers Is shown In publications by OSHA
Citing state ex reI Boan vs Richardson 482 SE 2d 162 foNVa 1986) counsel argued that the Supreme Court of Appeals has held that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In similar circumstances and that any such statute violates the equal protection clause Art III Section 10 of the WVa Constltltlon The Court stated tJ1at It would look to whether the classlflcatlon was rational and based on social economIc historic or geographic factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally
9
000011
wiUlam Crawford JON 2014016722
The claimant argued that he was a member of a class of Incarcerated prisoners In which all persons are not treated equally Some of these workers are mandated to receive workers compensation and others are not The dlfferentiaUon between class members had nothing to do with the work performed 8$ he colfld have operated a wood chipper for a private employer Further placement In work Is not a function of anything other than availability of work so It middotIs a matter of chance or fate There was no rational basis on which to diSCriminate betwen Inmates W~rklng for Prison Indmries Working In private employment or working for a state agency The claimant argued that the denial of workers compensation to the claimant under these circumstances does not
_____--advance-LreasonablLgoveOlmemal--Dteresl_[bLretnedieLavallable_Jo_prlvaleyen-y--shyemployed inmates and state employed Inmates are different In that privately employ Inmet are coverd by workers CQmpensatl~n whereas those employed by a _e middotagencyrenot The onlymiddot remedy for astate employed InmatemiddotJsmiddota claim-under 42U$C 1983 for cruel and unusual punishment but this claim rqulres proof of deliberate jndlmrence middotto the hazard aOd this burden of proof Is eXtremely dlfllculttb meet Thus there are substantial dltterences In the remedies available to Inmates injured middoton the Job The ~almant also noted that Inmates engaged In work for the state re paid very low wag and had he been empfoyed by a PriVate employer he would have had benefit of workers compensation coverage
28 The employer filed a closing argument dated August 21 2014 Th employer argued that the ofalm was properly rejected because the clalmamiddotnl did not suffer an Injury In the course of and Ii result middotof covered employment The employer argued that the claimant was not an emplQyeeentiUed to workers compenSation ~ntlts Th employer noted ~hBt the Qlalrnant wa~ In~arcetated at the time of the Injury He was working on March 28 2013 on Corridor G for the Department of Highways when his hand was caught In a wood chipper He was nated at CAMe and his medical bills were paid by ttl Department of Corrections The employer felt that the circumstances of how the claimant became Injured were Irrelevant to compensability The employer stated that there was flO dispute that the claimant was performhig $8rvlces for DOH as part of his connnement at the Charleston Work Release Center He signed an agreement on November 27 2012 whkh was subject to a Contract for Placement at amiddot Work Release Center that he also signed His dUties with DOH were contingent on hlsmiddotContract for Placement on Road Crew or communitY Crew whIoh he signed on November 27 2012 The employer argued that according to documents raled to the agreement between the Department of Corrections and DOH Corrections would provide DOH with Inmates to perform dUUes for pOH The agreement outlined the terms and canditi~ related to the use of Inmate services and the compensation that Corrections would receive on behalf of the Inmates The agreement provided that the Inmates p$rforrrdog servfc~ under this agreement will not be employees of the State entitling them to any benefits such employees might have including but not limited to Insurance worker compensation benefits pensions sick and annual leaveII
The employer argued that the only wayan Inmate would be entiHed to workers compensation benefitS Is pursuant to placement In a program established under WVa Code sect25-7-14 or sect25-7-16 which apply to programs estabUshed to the federal Prison
10
000012
William Crawford JON 2014016722
Industry Enhancement (PIE) Certification Program The evidence shows that to date no such programs have ever existed and no DOCDOH road crew program Ie part of PIE
The employer argued that WVa Code sect23-2-1deflnea employer and sect 2~2-1a defines aemployeeD The employer argued that the claimant Is barred from receiving workers compensation benefits due to his status as an Incarcerated individual at the time of his injury because WVa Code sect23-4-1eb) provides that I[n)otwlthstandlng any provislcm of this code to the contrary no person confined hi a state correctional facility
____-----Dr_JaILwbo-suffersJnJWyen--DudlseaseJnJbeMursUlLand1uuJtlng1mmltlsoLhe( w~ork_____ during the period of confinement whiCh work Is Imposed by the ~dmlnlstratlon of the state correctional facility or Jail and is not suffered during the persons usual employment with his or her usUal employer when not conftnedshall receive benem under the provisions of thl~ chapter for the injury or d~ease
The employer argued that the code 8peclfie$ that an Inmate Is not entitled to workers compenSation If Injured while completing work imposed by the administration ofthe state correctional facility or jail However had he been working in a PIE program he would hav~ been enHtled to workers cC)mpensation beneflts The employer argued that tbe claimants closing argument confirmed this finding- but he argues that his constitutional rights have been violated In response the employer argued th~t the PIE program flowed out of federal leglslatlcm and (hat the clear and rational basis for the requirement that private employers provide workers compensation ooverage for Inmate employees under the Pie program is 80 no unfair advantage la given to the private employer
The employer argued that the olaimants constitutional argument falla and that his only recourse Is to petition the legislature for a change In the current law However the employer argued that any determination by the Court that all Inmates are entitled to workers compensation benefits would slgnlJlcantIy ImpaCt the states budget
29 The claimant flied a Reply to Closing Argument and Exhibits dated August 26 2014 The claimant clarified that his argument based upon the PIE program was based upon the employers affidavit Indicating that program Is dormant He stated that even If the PIE program had remained dormant this did not mean that Inmates were only empioyed by DOH and that statements by the Director of Division of Corrections and the Governors BUdget document clearly state that Inmates are employed In the private sector The claimant attached Exhibit A to this filing and he stated that In this attachment Mr Rubenstein stated that the majority of Inmates -e empoyed In fast food industry and restaurants The claimant again argued that there was a dlaparate treatment between inmates who work for the Department of transportation and those In any kind of private employment and this was a violation of the Canstltudan
30 The employer filed a Response to Closing Argument and exhibits dated September 9 2014 The employer argued that the claimants reply was submitted on
11
000013
WIUlam Crawford JCN 2014016722
August 26 2014 which was filed after the ten day prlod for case summation pursuant to WVa CSR sect 93~1-65 since the time frame expired on August 11 2014
The employer stated that the provlslons of Article 7 of Chapter 25 of the West Virginia Code were drafted to comply with 18 USC sect 1161 (c) the PIE program The federal legislation allOWS state andmiddot local prisons to be exempt from federal restrictions on prisoner-made goods entering Inte_te commerce and allOWS private individuals tn some clrcumst~mces to hire Inmates for production of goods However the Inmates must be paid similar wages 80 as not to allow a private Industry to obtilhlan unfair
------_advantagacomparecUO-the-prlva~sector~-ThaemployJtr--8tatedJbaUmgatiorLl8gamlng_______ 18 OSC sect 1761(0) Is cleaithal Its purpose Is to protect private businesses and that It was not enacted to protect Inmate workers The ernp~oyer cited McMaster v Minnesota 30 F3d 9679811994 US App Lexls 1861816 (8middot CIr Minn 1994)
31 The employer flied a Seoond Closing Argument ~ated MarQh 162015 The employer stated that the Issue was whether the claimant was entitled to receive workers compensation benems after sustainIng an injury while working for DIVIsion of HlghwaY$ on a work crew from the Chal1stQn Work Release Center The employer noted that the claimant signed a Maser Furlough Agreement on November 27 2012 He also signed a Contract for Placement at a Work Release Center His duties WIth DOH were contingent on a Contract for Placement on Road Crew or Community Crew which he signed on November 272012
The employer noted that there were agreements between Department of Corrections and Division of Highways regarding Inmate servk Neither DOH nor DOC conSidered the Inmate workers fo be employees and the contract stated that they were not employees of the State and not entitled to employee benefits Including degworker compens~lljon
The employer argued that the only conditions under which an Inmate is entitled to workers compensation benefits Is if he were placed In a Prison Industry Enhancement (PIE) Certification Program under WVa Codmiddote sect 25-7-14 or sect25-7-16 Ther have never been any PIE programs In West Virginia and so the claimant was not part of this program
The employer responded to the claimants argument that inmates employed in the private sector outside the PIE program and they are coved by workers compensation and thus the noncoverage for inmates such as the claimant Is unconstitutional The employer argued that Ms Slack testified that Correctional Industries operates about 17 production shops In which inmates work Some Inmates from the Charleston Work Release Center assist but none of the (nmates receive benefits Mr stinnett administrator of the Charleston Work Release Centertestlfled that there were criteria for Inmates to be placed at the Work Release Center and there was a running list of Inmates who desired placement When a bed opened an Inmate Is placed there He stated that about 45 Inmates work In private Industry rather than with
12
000014
William Crawford JCN 2014016722
the State The C~nter attempted to get private Jobs for inmates who would ultimately be released In Charleston so that they can continue to work when reJeased
The employer argued that the clalm_nt was barred from receiving workers compensation duetohts Incarceration at the time of his inJury pursuant to WVa Code sect23-4-1e The employer noted that PIE program Inmates are provided coverage by the private employer and that the purpose of this was to Implement federal regulations and protect private businesses from unfair competition Thus there is a clear and rational basis for dlff8f~mces between Inmates wC)fklng for private employers In a PIE program
32 The claimant filed a Supplemental Closing Argument dated March 20 2015 The claimant argued that the statutory framework regarding work- rajease and the provision of beneflt$ and the Implementation of the statute by the Department of Corrections violates the equal protection clause The claimant argued that not only do Inmates who woUld work under the PIE program Of ever Imptemerited) receive workers comperl$ation ~enet1ts but those who are released to work in the private sector receive workers compensation and other benefits The claImant argued that those who work for Department of Highways do not relieve the ame benfllsas those similrly situated Inmates whQ work In private sector jobs and this is discrimination with no reasonabie basis
33 Counsel for the claimant and the employer presented closing arguments at a hearlng on May 5 2015 Cou for the claimant _ated that the Issue was oompensabllityfor an Inmate Who Injured his hand while working for a Division of Highways crew while at a Work Release Center Counsel for the claimant cited State ex ret Boan VS Richardson 482 SE 2d 162 ~Va 1966) IInd argued that the SUpreme Court of Appeals ruled that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In slmUar circumstances and that any suqh statute violates the equal protectlcm clause Art IU SeCtion 10 of the WVa Constitution Counsel stated that had the claimant worked for a private employer he would have been covered j)y workers compensation There are no rules or regulaUons governing whether an Inmate works for DOH or a private employer Thus there Is no rational basiS for how they are assigned Underbn the elaimant argued he has been wrongfully dlscrfmlnated against
The employer stated that the claimant was barred frQm receiving workers compensatlc)O WVa Code sect23-4-1e(b) He was an Inmate subject to confinement and was not In a PIE program which Is an exception The participant Inmates are stUI Incarcerated While In the Work Release program The OOJ has no authority to decide the statute Is Constitutional The claimants remedy Is to convince the state legislature to change the statute Counsel for the employer stated that his mecilcal bills were covred by Department of Corrections Counsel argued that the OOJ must affirm the Order Counsel Indicated that once paroled the claimant was not eligible for further medIcal treatment to be paid by Department of Corrections
13
000015
William Crawford JCN 2014016722
DISCUSSION
This case Is before the OffIce of Judges based on a protest to the Order regarding tbe compensElbllltyof the claim W- Virgins Code -523-4-1 provides for benefits to employees who receive an Injury In the course of and as a result of their covered employment The more preci$e $Sue presented hre Is whether the claimant Is entitled to benefits for an InjJJry he received while he waS an inmate working on a crew pursuant to agreements between himselfi the Department of corrections and DMslon of Highways
i ---------------------------------------------------------------------~-
W Va Code sect23-4-1 9 provides that for all awards made on and after July 1 I 2003 the resolution of any Issue shall be ba~ upon a weighing of atl evldenoe pertelnlng -lothe Issue and a finding that8 preponderance of themiddot evidence supportsmiddot the chosen manner of resolution The process of weighing evld~nce $hall include ~ut not be limited to an assessmei1t of the r~lecC credlblRty materiality and rellabllty that the evidence possesses In the context of the Issue presented No Issue may be resolved by allOWing certain evidence to be diSpositive Simply because It Is reflable and Is mosJ favor-ble to a partys Intrests or position The resolution of Issues n claims for compensation must be decided on the merits and not according to any prinCiple that requir statut governing workers ~ompeJS~lon to be Ilb~rally conStrued because th~V are remedialili natute If after weighing all of the evidence regarding an Issue there Is a finding that an equal amount of evidentiary weight ~$ for each side the resoltiQcm that is most con$lstent With the claUnant$ position Will be adopted
Preponderence of the evldenQe means proof that $omethlng Is more likely 80 thail nbt ~o In other words a preponderance Of the evidence means such evidence when considered and compared with opposing evidence Is more pe~uaslve or convincing Pre~nderance of the evidence may not be determined by merely counting the number of witnesses reports evaluations or other items of evidence Rathermiddotft Is datennlned by assessing the persaslven8$Sof the evidence Includlng the opportUnity for knowledge Information possessed and manner of testifying or reporting
While working on a highway crew on March 282013 the claiment badly Injured his hand In a wood chipper While there are some variances In the claimants statements compared to witneamp$ statements about the particulars of the InJury none of those differences would change the outcome of this Decision and thus are not relevant to the discussion There Is no dispute that the claimant was Injured as a result of his work on the road crew while he was an inmate at the Charleston Work Release Centr His inJuries fe$ulted In surgery and hospitalization at CAMC where his medical bills In e)(cees of $90000 were paId by the Department of Corrections He was paroled soon after he was released from the hospital
The claim was rejected by an Order dated November 15 2013 which denied the application for benefits as it was determined that he did not sustain an Injury In the course of and resulting from his employment The claim administrators Investigation
14
000016
WilHam Crawford JON 2014016722
Inmates and that they must pay them the same wages non-Inmate workers and they must provide workers compensation coverage for them (See deposition of Jeff stinnett Administrator of the Charleston Work Release Center dated February 5 2015) Most of the private employment of Inmates 18 In fast food reurants grocery stores and factorieS Bobby WIlliams a case manager at the Charleston Work Release Center testified on March 31 2015 that he talked tolnmat~ to see If they wanted to work on a DOH crew He said that to m It made sense to place inmates In posiUons In the community In which they would be released The claimant was to be paroled to Hardy County which Is not within a driving distance to Charleston
The claimant argued that there were no rules or regJlations that would determine -shywhether an Inmate was placed In a private companymiddot or with DOH However this placement- would middotdetermln their fate If -they were InJured While on work refeaee Counsel for the claimant argued that this disparate treatment was discriminatory Counsel cited the West Virginia Supreme Court of Appeals holding In State ex ret Boan YS RlcIDardson 482 se 2d 162 ~va 1966) In which the court held that a workers compensation statute atfeQtlng economic rights may not be used to discriminate among a class of In~lvl~uals In similar circumstances and that any such statute violates the equal protection clause Art IU Section 10 of ttle WVa Constitution The Court stated that ~ would look to whe~her the classffication was rational and Qbased on socliil economic historic or geographIc factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally Id at 164 The claimant argued that he was a inmbar of Incarcerated prisoners in Which all persons weranot treated equally In that some qualified for workers compensation coverage and others did not
There Is no disagreement In this case that W Va Code sect23-4-1e(b) bars the claimant frC)O1 r~elpt of workers compensation benefltB The claimant argues that this law Is unconstltutlonal The Offlce of Judges Is not an Article III Court and does not have jurisdiction to rule a sttule is unconstitutional Therefore itmiddot1S found that the Order properly rejected the claim pursuant to W Va Code sect23-41e(b)
CONCWSlONS OF LAW
Pursuant to W Va Code sect23-4-1e(b) the claimant is ineligible to receive workers compensation benefits fer an Injury he received while In a Work Release Center performing work for Division of Highways In accordance With agreements with Department of Corrections
It Is therefore ORDERED that the Claim Administrators Order dated November 152013 be AFFIRMED
16
000017
William Crawford JON 2014016722
APPEAL RIGHTS
Under the provisions of WVa Code sect23-5-12 any aggrieved party may file a written appeal wlthlnthJrty (30) days after receipt of any decision or action of the Administrative Law Judge The appeal shall be filed ~Irectly with the Workrs Compensation Board of Review at PO Box 2828 Cha~eston WV 263~9
Date July 6bull 2015
RibcCca S CharI Administrative Law ludp
RSCQtc
cc WILUAM F CRAWFORD JOHN HENRY SKAGGS -COUNSEL FOR CLAIMANT DEPT OF CORRECTIONS-WORK RELEASE LISA WARNER HUNTER - COUNSEL FOR EMPLOYER AMERiCAN ZURICH INS CO
17
000018
William Crawford JCN 2014016722
JCN
Date
2014016722
July 6 2015
ReconJ Considered
The Clalmanfs protest to the Claims Administrators order Of regarding REJECTION OF CLAIM
November 15 2013
EVIDENCE SUBMITTED
Claimant Evidence
Document Type Not Specified Document Date 11112000 Submit Date 6Q012014 Author EMPlOYERICLAIMANT - WORK AGREEMENT
DoaIment Type NotSpepified Document Date 1112OQ4 Submit Date 612012014 Author WV DIVISIONS OF CORRECTIONS - POUCY
OIRECnVE
Document Type Not Specified Document Date 41112006 Submit Date 612012014 Author CHIPPERISHREDOER SAFElY - K-STATE
ARTICLE
Document Type Oocum~nt Dale Submit Date
Not Specified 41612008 612012014
18
000019
Willism Crawford JON 2014016722
Author HAZARDS OF WOOD CHIPPERS - OSHAOOV
Document Type Not-Specified Document Date 7112010 Submit Date 812612014 Author DIVISION OF CORRECTIONS-2010 EXECUTIVE BUDGET
STATEMENT
Document Type Not Specified-----DocumenrDste=------r71t212010----------------------- ----
Submit Date 812612014 Author NEWSPAPER ARTICLE~DEPTOF CORR~CTIONS
Document Type NotSpecified Oocument Date 412612012 Submit 08te612012014 Author CONVICT WORKFoRCE AGREEMENT
Document Type -Not Specifted Document pate 4I26J2012 Submit Date 812012014 Author CLAIMANT - CONTRACT FOR PLACEMENT
Document Type NotSpeCified [)(lcument Date 1112612012 Submit Date 1123i2014 Author WORK RELEASE RECORD (111261122-19-13)
Document Type Not Speclfjed Document Date 1112712012 Submit Date 112312014 Author CONTRACTIPLACEMENT ON ROADCOMMUNITV
CREW
Document Type Not Specified Document Date 312812013 Submit Date 112312014 Author DUTY OFFICER REPORT
Document Type Not Specified Document Date 32812013 Submit Date 1232014 Author INCIDENT REPORT WITH ATTACHED MEDICATION
FORMS
19
000020
William Crawford JCN2014016722
Document Type Not Specified Document Dale 4412013 Submit Date 112312014 Author WILLIAM CRAWFO~D ~ STATEMENT
Document Type Not Specified DocUment Dale 412512013 Submit Date 611912014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 121102013 Submit Date 1l23t014 Aulhor CLAIMANTS DEPT OF CORRECTIONS FILE
Document Type Not Specified Document Date 12312014 Submit Date 112312014 Author CLAIMANT - CONTRACT PLACEMENTIWORK RELEASE
CENTER-UNDATED
Document Type NotSpeclfied Document De 113112014 Submit Date 2412014 Author EMPLOYER INTERROGATORIES
Document Type Not Specified Document Date 62312014 Submit Date 012312014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 12118204 Submit Date 11412015 Author BETIY SLACKmiddot DEPOSITION
Document Type Not Specified Document Date 21512015 Submit Date 212612015 Author JEFF STINNETTmiddot DEPOSITION WIEXHIBiTS
Document Type Not Specified Document Date 313112015 Submit Date 412212015 Author BOBBY WILUAMS - DEPOSITION
20
000021
JCN 2014016722WlUlam Crawford
Emglgyer Evid8DC8
Document Type Npt Specified ------f)ocumentDate--tlf2mo2-------------------- shy
$lIbmiiOate 73112014 Author WORK RELEASE STATUS MASTER FURLOUGH
AGREEMENT
Document Type Not Sp~lfied Document Date 312812013 Submit Date 713112014 Author OFFICE OF WV AUDITORmiddot FINANCIAL INFO MANAGEMENT
SYSTEM INVOICE SHEETS
Document Type Not Specified Document Date 312812013 Subinlt Date 713112014 Author DARRELL SIGMON - STATEMENT
Document Type Not Specified Document Date 31282013 Submit Date 713112014 Author ROCKY pARSONSmiddot STATEMENT
D~umentType Not Specified Document Date 612312014 Submit Date 713112014 Author BETTY SLACKmiddot AFFIDAVIT
CLOSING ARGUMENTS
21
000022
WillIam Crawford
PalY Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted tettE3FDate Party Submitted Letter Date
were repaired His pinky finger was broken He had surgery to repair ligament on March 30 2013 and that he would have another surgery at a later date
17 The claimant submitted the Division of CorrecUons Incident Report Which was signed by Darrell Sigmen and dated March 28 2013 It was noted that on March 28 2013 the Department of Highways crew was chipping branches beside the road The chipper had stopped up abou~ four tImes that day The chutemiddot door was open and the chipper was turned over snghtfy to let the debris out While this was being done the claimant pUt a stick Into the chipper pa~ of the machine Ttle chlppef was off but the blade was stili sfigMtyJuming and It Jerked the stick and the claimant did not let loose of It quick enough ihe report stated that the claimant had been warned not to get his hand near the chipper because the blade wa$ stili moving but he did It anyway
Attached to the report were medication formsllog$ noting di$pensatiQn of medications to the claimant on dates spanning from November 26 2012 through March 112013
18 The claimant submitted his statement dated April 4 2013 The claimant stated that the accident occurred on March 29 2013 while he was chipping brush along Corridor G The chipper WfJS not operating properly anCl clogged He said that there were some small vines and branches sticking out from the Chipper and he grabbed one and tried to pull It to shake the chipper free It pule~ his hand into the blades of the chipper He said he did not stick hIS hands Into the chipper
19 The claimant submitted photographs Some pictures depicted an Injured left hand with stitches down the palm and past the wrist WIth Injuries on the palm face of an fingers The ring Imd liltle finger were amp~tated around the proximal Interphalangeal Joints A few photos showed the hand with healed wounds but shoWIng the two partially amputated fingers and a rather long scar from the mid-palm area down past the wrist
20 The claimant submitted a FOIA response rrom the WV Division of Corrections dated December 10 2013 Policies and egrEtementa irade pursuant to W Va Code 25-7-14 and 16 and WVa Code 23-4-18 Were provided A policy of the DMsfpn of Correqtlons dated January 1 2004 was irl9luded which concerned procedures for managing inmate work crews assigned to Division of Highways (DoH) It atated that If an inmate were seriously Injured hetshe should be taken to an emergency room ind that medical treatment must be provided In a timely manner A Correctional Officer was to be assigned to each road crew and the Officer was responsible for ensuring the crew members work the proper safety eqUipment and DOH was to supply all safety equipment The Officer was to ensure all crew members attended all safety meetfngs scheduled by DOH A Policy dated May 1 2013 also noted an agreement between Corrections and DOH It also required a Correctional Officer be aSSigned to eaoh road orew and the Officer was to ensure orews work safety equipment and attended safety meetings DOH provided transportation from the job site back to DOH Accident procedures were discussed Inmates would be paid $580 per hour beginning
5
000007
JCN 2014016722 William Crawford
July 1 2013 Thereafter the rate would remain at eO of the federal minimum wage rate Corrections would establish acertified training course on chainsaw usemiddot to Inmates and only those trained would be permitted to use a chainsaw There was an agreement dated January 11 2000 between Division of Corrections and DOH regarding crews of Inmates iupplled to DOH Inmates fom Correctional Centers would be paid $150 per hour and Inmates from Work Release Centers and Beckley Correctional Cemer would be paid $450 per hour DOH would reimburse Corr~Uons at the rate of $218800 per m()nth per officer Correctl()ns would Invoice DOH for Inmate work performed The agreement stated that Inmates performing services were not empl()yenees of the state entitling them to any benefits such employees might have
---------rin-cl~middotInLgbut not limited to Insurance worker compensation benefltspension sick and annual leave Further Corrections would provide any medical care needed by inmates performing services An agreement dated April 26 2012 provJded Qo~jflollS fQl Corrections to supply Inmale crews to DOH Crews were not permitted to operate heavy motorlz~ equipment or anything larger than a riding lawn mower DOH was to provide safetY equipment Inmates from Correc(lonalCenters and Wortlt Camps Wculd be paid $150 per hour and inmates frOinWork Release Centers and BSCkleyand Ohio County CQfTeQtfonal Centers would be paid $450 per hour until June 30 2012 and then $5~20 beginning July 1 2012 and beginning July 1 2013 the rate Increased to $580 per hour beJng 80 of the federal minimum wage and It would rise and filII In accorclance with the federal minimum wage
21 The claimantsubmitted a Contract for Plaoement at a Work Release Center slgne~ by the claimant dated January 23 2014 The clalm_nt ~ at Pruntytown Correctional Center and was to be put on work release for a probationary 30-day period at Charleston Work Release Center The Contract concerned the verioUl requirements placed on the claimant and It stated that he was agreeing to be responsible for all medical expenses he Incurred while at the Center He also agreed that prfor to receiving medical attention except for an emergenoy he had to notify the Administrator
22 The claimant submitted the employerS answers to Interrogatories and requests for producUon of documents dated January 31 2014 The employer objected to the request of the number of work release inmates Injured during their work for the last five years and tl18 naeof the Injury and other Information The employer did not answer The employer also objected to the Interrogatory aSking whether any workers compensation benefits had been paid and the amount paid However the employer stated that it was unaware of any Inmate ever recelvlng workers compensation benefits for Injuries received while performing services for another state agency Further as wards of the state inmates who require medical care related to services they are providing for a state agency while under authority of the Department of Corrections are provided care through the Department of Corrections In respo088 to Whether the claimant was working for an approved WOrk release program at the time of Injury the employer said that he was under a contract for placement at a work release center and under a Contract for Placement on Road Crew or Community Crew agreement In accordance with a WV DOHIWV Olvlslon of Corrections Statewide Convict Workforce Agreement
e
000008
WIlliam Crawford JON 2014016722
23 The employer submitted an Affidavit of Betty Slack dated June 23 2014 Ms Slaok stated that $he was the Deputy Direclor of WV correctional Industries and had held the position since December 2009 She managed the Prison Industries Enhancement rPIEQ Program for Division of Corrections guided by west Virginia Code)
sectsect25--7-13 and 25-7-14 According to M$ Slack all PIE prograrns must be operated Within the prison setting but none have ever actually operated In West Virginia She said that none of the current Inmate work programs now operating are regulated by PIE
24 The claimant submitted II deposition transcript of Betty Slack dated December 18 2014 Ms Slack testified that she worked as the DeplID Director of the West Virginia Correctfonallnduitrles since 2009 She said she had production shops In the prison facilities that produced fumlture seating printing engraving mattr8$S88 and yarJous Q~er products and that she oversaw productl~ She ove~8$ emploYees both Inmate middotand civilian She sald that certain inmates would be cleared for work and that she could pick them from a list of workers She said there are some Inmate work from the Charleston Work Release that help load and unload trucks and do Janitorial Jobs They are paid hourly She said the Work Release workers are nearing a release from prison She said that the work~r Is not Pflid dlreotly~ the Charlast~ Work Release Center Is paid and It makes deductions for room and board and the rest Is put In the Inmat~ account She said the workers do not receive benefihi She was not familiar With the Charleston Work Release Program ~xceptmiddotth8t she got Inmate workers from thete when requested She noted that Jeff Stinnett is the administrator for the Charleston Work Release Center
25 The claimant submitted a transcript of the deposition of Jeff Stinnett dated february 5 2015 Mr Stlrmett statd that hI was the Administrator of the Charleston Work Release Center on Brooks Street in Charleston WV He stated that he had worked there since 1993~ He stated that he oversees dally operations of the facHlty which has capacity for slxtyslx He stated ~cd he recalled the claimant and that he signed a contract to go to the work release center Mr Stinnett stated that workers sometimes work for other state agencies ~esldes highways but DO H was the only one With a formalized agreement with corrections He stated that there were eligibility criteria for work release He said that some Inmates work at fast food restaurants grocery stores ancl factory work When worklrg In priv~te employment they are paid the same wages as their co-workersand have standard deductions from their pays such as FICA He stated that as far as he knew the private employers reported lhese workers wages for workers compensation purposes Every worker In private or agency work pays 5 dollars per day of their earnings to Corrections for maintenance and support The majority of rest goes Into a trustee ~ount that they receive once discharged but they can get a small amount weekly for basic needs Mr StJnneH stated that he recalled one other Individual injured while working on a Kanawha State Forest crew In the past He stated that there was a new regulation regarding the use of chalnsaws and the size of equipment inmates can operate but these were Highways rules and he was not familiar with them He stated that Corrections teaches chalnsaw training for the Inmate work but not for other equipment Mr Stinnett stated that Health
7
000009
WIlliam Crawford JON 2014016722
Right Is one place Inmates go If they need health oare Which Is billed on a sliding scale and many times is free for the Inmates
26 The claimant submitted a transcript of the deposition of Bobby Williams dated March 31 2015 At the beginning of the dep)$IUon cQunsel for the employer placed on the record an objection to the request for an e)(tenalon of time frame filed by claimants counsel The employer did nCit object to the deposition but did object to the extenslon for the purposes of keeping open the reoord In the protest Mr Williams sttedthat he was employed at the Charleston Work Release Center as a case manager and he Is the em~ment coordinator His duties Include assisting Inmates with parole paperwork and helping them look for work He stated that he recalled the claimant and that he was in an accident He stated that inmates were responslbte for seeking private employment He said he would talk to the inmates and ask If they wanted to work for Highways on a road crew He would look to see where the InmateS WOuld be released and ir It would be In the Charleston area It made $8nse to have them work In the commul1lty He stated that he was not aware of any other residents at his facility that were Injured while working for DOH He stated that he could not recall whether the claimant asked to work for DOH Mr Williams was aware that the claimant was to be paroled to Har~y County which is not within a driving distance for work In Charleston He said that sometimes they transfer Inmates to a work release center closer to where they will be paroled~
27 The claimant filed a clOsing arg~ment dated July 11 2014 The claimant argued that he was entHled to WQrk~rs compensation beneflt$ for an injury IIe received while he was In a prison work release program involving the Department of Highways (DOHiI) The claimant stated that he was seMog a period of confinement at the Charleston Work Release Center and was working for the DOH pursuant to a WQrk release agreement when he was Injured on March 28 2013 He stated that his hand was caught In a wood chipper and was mangled He was treat~d at CAMe where his medical 1)111 Were In excess of $90000 and were paid by the Department of Corrections The claimant said he partfallyamputated fingers of his left hand
Counsel for the clilmant stated that he hid not been ible to Identify the rules and regulations that applied to the Interagency employment of inmates He had found a policy dated August 12013 which postdated the claimants Injury and a work agreement that also postdated the Injury However a January 1 2004 poUcy was In effect at the time It governed the management of Inmate work crews for DOH and stated that In the event of a serious injury an Inmate was to be taken to an emergency room Further the policy Indicated that work release Inmates would have occa$lon to work In situations that may result in aCCidents and may require safety eqUipment There was also an agreement between Corrections and DOH dated April 26 2012 which stated the obligations of each agency for Inmate work crews This agreement provided for training by Corrections for the inmates to learn to safely operate ohalnsaws Further inmates were to be paid $450 per hour The claimant signed an agreement for work release when he was at Pruntytown
a
000010
WiUiam Crawford JCN 2014016722
Counsel noted that WVa Code sect23-4-1e(b) states
(b) Notwithstanding any provision of this code to the contrary no person confined in a state correctional f~iI~y or jail who suffers Injury or a disease In the eour$e of and resulting from his or her work during the period of confinement which work Is imposed by the admlntration of the state correctional facility or Jail and IS not suffered during the persons usual employment with his or her usual eMployer when not confined shall receive benefits under the provisions of this chapter for the InJUry or disease ProVIded That individuals otherwise QOIlftned In a state correctional facility or JaU or at a Juvenile services facility IInd working In a program authorized by sections fourteen or sixteen of article sevenchapter twenty-five of this code shall be eligible to receive benefits under the prov~Jons of this chapter while working In an authorized program The coverage for benefits may be obtained either by the prtvate entity or by agreernentwJth the state agency as specified In subsection (5) subsection (a) of sections fourteen and sixteen of artlc1e sevenchapter twenty-five of this code
Counsel also noted that WVa Code sect23-4-1e(b) referenced sect125-7-14 and 25shy7-16 which relate to a Prison Industry Enhancement (PIE) CertlflcIQn middotProgram Thus counsel said that there were two situatIons In whIch an Inmate is eligible for workersmiddot compensation benefits - working for PrISon Industries and working in the private sector pn work release The clamant argued thet there was no rational baels to discriminate betWeen prisoner classifications regarding workers compensation benefits The claimant was performing work that was of such nature that he could have done for a private employer He argued that there was no significant difference In status between the claimant and an inmate working for Prison Industries or placed in priVlllte employment who Is covered by workers compensation
Counsel noted significant differences between the 2012 agreement and earlier agreement$ The 2012 agreement provides that Inmates shall not operate equIpment larger than a riding lawn mower Further Inmates are not to use cnalnsaws WIthout special training Counsel argued that the hazardousness of operaUg wood Chippers Is shown In publications by OSHA
Citing state ex reI Boan vs Richardson 482 SE 2d 162 foNVa 1986) counsel argued that the Supreme Court of Appeals has held that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In similar circumstances and that any such statute violates the equal protection clause Art III Section 10 of the WVa Constltltlon The Court stated tJ1at It would look to whether the classlflcatlon was rational and based on social economIc historic or geographic factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally
9
000011
wiUlam Crawford JON 2014016722
The claimant argued that he was a member of a class of Incarcerated prisoners In which all persons are not treated equally Some of these workers are mandated to receive workers compensation and others are not The dlfferentiaUon between class members had nothing to do with the work performed 8$ he colfld have operated a wood chipper for a private employer Further placement In work Is not a function of anything other than availability of work so It middotIs a matter of chance or fate There was no rational basis on which to diSCriminate betwen Inmates W~rklng for Prison Indmries Working In private employment or working for a state agency The claimant argued that the denial of workers compensation to the claimant under these circumstances does not
_____--advance-LreasonablLgoveOlmemal--Dteresl_[bLretnedieLavallable_Jo_prlvaleyen-y--shyemployed inmates and state employed Inmates are different In that privately employ Inmet are coverd by workers CQmpensatl~n whereas those employed by a _e middotagencyrenot The onlymiddot remedy for astate employed InmatemiddotJsmiddota claim-under 42U$C 1983 for cruel and unusual punishment but this claim rqulres proof of deliberate jndlmrence middotto the hazard aOd this burden of proof Is eXtremely dlfllculttb meet Thus there are substantial dltterences In the remedies available to Inmates injured middoton the Job The ~almant also noted that Inmates engaged In work for the state re paid very low wag and had he been empfoyed by a PriVate employer he would have had benefit of workers compensation coverage
28 The employer filed a closing argument dated August 21 2014 Th employer argued that the ofalm was properly rejected because the clalmamiddotnl did not suffer an Injury In the course of and Ii result middotof covered employment The employer argued that the claimant was not an emplQyeeentiUed to workers compenSation ~ntlts Th employer noted ~hBt the Qlalrnant wa~ In~arcetated at the time of the Injury He was working on March 28 2013 on Corridor G for the Department of Highways when his hand was caught In a wood chipper He was nated at CAMe and his medical bills were paid by ttl Department of Corrections The employer felt that the circumstances of how the claimant became Injured were Irrelevant to compensability The employer stated that there was flO dispute that the claimant was performhig $8rvlces for DOH as part of his connnement at the Charleston Work Release Center He signed an agreement on November 27 2012 whkh was subject to a Contract for Placement at amiddot Work Release Center that he also signed His dUties with DOH were contingent on hlsmiddotContract for Placement on Road Crew or communitY Crew whIoh he signed on November 27 2012 The employer argued that according to documents raled to the agreement between the Department of Corrections and DOH Corrections would provide DOH with Inmates to perform dUUes for pOH The agreement outlined the terms and canditi~ related to the use of Inmate services and the compensation that Corrections would receive on behalf of the Inmates The agreement provided that the Inmates p$rforrrdog servfc~ under this agreement will not be employees of the State entitling them to any benefits such employees might have including but not limited to Insurance worker compensation benefits pensions sick and annual leaveII
The employer argued that the only wayan Inmate would be entiHed to workers compensation benefitS Is pursuant to placement In a program established under WVa Code sect25-7-14 or sect25-7-16 which apply to programs estabUshed to the federal Prison
10
000012
William Crawford JON 2014016722
Industry Enhancement (PIE) Certification Program The evidence shows that to date no such programs have ever existed and no DOCDOH road crew program Ie part of PIE
The employer argued that WVa Code sect23-2-1deflnea employer and sect 2~2-1a defines aemployeeD The employer argued that the claimant Is barred from receiving workers compensation benefits due to his status as an Incarcerated individual at the time of his injury because WVa Code sect23-4-1eb) provides that I[n)otwlthstandlng any provislcm of this code to the contrary no person confined hi a state correctional facility
____-----Dr_JaILwbo-suffersJnJWyen--DudlseaseJnJbeMursUlLand1uuJtlng1mmltlsoLhe( w~ork_____ during the period of confinement whiCh work Is Imposed by the ~dmlnlstratlon of the state correctional facility or Jail and is not suffered during the persons usual employment with his or her usUal employer when not conftnedshall receive benem under the provisions of thl~ chapter for the injury or d~ease
The employer argued that the code 8peclfie$ that an Inmate Is not entitled to workers compenSation If Injured while completing work imposed by the administration ofthe state correctional facility or jail However had he been working in a PIE program he would hav~ been enHtled to workers cC)mpensation beneflts The employer argued that tbe claimants closing argument confirmed this finding- but he argues that his constitutional rights have been violated In response the employer argued th~t the PIE program flowed out of federal leglslatlcm and (hat the clear and rational basis for the requirement that private employers provide workers compensation ooverage for Inmate employees under the Pie program is 80 no unfair advantage la given to the private employer
The employer argued that the olaimants constitutional argument falla and that his only recourse Is to petition the legislature for a change In the current law However the employer argued that any determination by the Court that all Inmates are entitled to workers compensation benefits would slgnlJlcantIy ImpaCt the states budget
29 The claimant flied a Reply to Closing Argument and Exhibits dated August 26 2014 The claimant clarified that his argument based upon the PIE program was based upon the employers affidavit Indicating that program Is dormant He stated that even If the PIE program had remained dormant this did not mean that Inmates were only empioyed by DOH and that statements by the Director of Division of Corrections and the Governors BUdget document clearly state that Inmates are employed In the private sector The claimant attached Exhibit A to this filing and he stated that In this attachment Mr Rubenstein stated that the majority of Inmates -e empoyed In fast food industry and restaurants The claimant again argued that there was a dlaparate treatment between inmates who work for the Department of transportation and those In any kind of private employment and this was a violation of the Canstltudan
30 The employer filed a Response to Closing Argument and exhibits dated September 9 2014 The employer argued that the claimants reply was submitted on
11
000013
WIUlam Crawford JCN 2014016722
August 26 2014 which was filed after the ten day prlod for case summation pursuant to WVa CSR sect 93~1-65 since the time frame expired on August 11 2014
The employer stated that the provlslons of Article 7 of Chapter 25 of the West Virginia Code were drafted to comply with 18 USC sect 1161 (c) the PIE program The federal legislation allOWS state andmiddot local prisons to be exempt from federal restrictions on prisoner-made goods entering Inte_te commerce and allOWS private individuals tn some clrcumst~mces to hire Inmates for production of goods However the Inmates must be paid similar wages 80 as not to allow a private Industry to obtilhlan unfair
------_advantagacomparecUO-the-prlva~sector~-ThaemployJtr--8tatedJbaUmgatiorLl8gamlng_______ 18 OSC sect 1761(0) Is cleaithal Its purpose Is to protect private businesses and that It was not enacted to protect Inmate workers The ernp~oyer cited McMaster v Minnesota 30 F3d 9679811994 US App Lexls 1861816 (8middot CIr Minn 1994)
31 The employer flied a Seoond Closing Argument ~ated MarQh 162015 The employer stated that the Issue was whether the claimant was entitled to receive workers compensation benems after sustainIng an injury while working for DIVIsion of HlghwaY$ on a work crew from the Chal1stQn Work Release Center The employer noted that the claimant signed a Maser Furlough Agreement on November 27 2012 He also signed a Contract for Placement at a Work Release Center His duties WIth DOH were contingent on a Contract for Placement on Road Crew or Community Crew which he signed on November 272012
The employer noted that there were agreements between Department of Corrections and Division of Highways regarding Inmate servk Neither DOH nor DOC conSidered the Inmate workers fo be employees and the contract stated that they were not employees of the State and not entitled to employee benefits Including degworker compens~lljon
The employer argued that the only conditions under which an Inmate is entitled to workers compensation benefits Is if he were placed In a Prison Industry Enhancement (PIE) Certification Program under WVa Codmiddote sect 25-7-14 or sect25-7-16 Ther have never been any PIE programs In West Virginia and so the claimant was not part of this program
The employer responded to the claimants argument that inmates employed in the private sector outside the PIE program and they are coved by workers compensation and thus the noncoverage for inmates such as the claimant Is unconstitutional The employer argued that Ms Slack testified that Correctional Industries operates about 17 production shops In which inmates work Some Inmates from the Charleston Work Release Center assist but none of the (nmates receive benefits Mr stinnett administrator of the Charleston Work Release Centertestlfled that there were criteria for Inmates to be placed at the Work Release Center and there was a running list of Inmates who desired placement When a bed opened an Inmate Is placed there He stated that about 45 Inmates work In private Industry rather than with
12
000014
William Crawford JCN 2014016722
the State The C~nter attempted to get private Jobs for inmates who would ultimately be released In Charleston so that they can continue to work when reJeased
The employer argued that the clalm_nt was barred from receiving workers compensation duetohts Incarceration at the time of his inJury pursuant to WVa Code sect23-4-1e The employer noted that PIE program Inmates are provided coverage by the private employer and that the purpose of this was to Implement federal regulations and protect private businesses from unfair competition Thus there is a clear and rational basis for dlff8f~mces between Inmates wC)fklng for private employers In a PIE program
32 The claimant filed a Supplemental Closing Argument dated March 20 2015 The claimant argued that the statutory framework regarding work- rajease and the provision of beneflt$ and the Implementation of the statute by the Department of Corrections violates the equal protection clause The claimant argued that not only do Inmates who woUld work under the PIE program Of ever Imptemerited) receive workers comperl$ation ~enet1ts but those who are released to work in the private sector receive workers compensation and other benefits The claImant argued that those who work for Department of Highways do not relieve the ame benfllsas those similrly situated Inmates whQ work In private sector jobs and this is discrimination with no reasonabie basis
33 Counsel for the claimant and the employer presented closing arguments at a hearlng on May 5 2015 Cou for the claimant _ated that the Issue was oompensabllityfor an Inmate Who Injured his hand while working for a Division of Highways crew while at a Work Release Center Counsel for the claimant cited State ex ret Boan VS Richardson 482 SE 2d 162 ~Va 1966) IInd argued that the SUpreme Court of Appeals ruled that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In slmUar circumstances and that any suqh statute violates the equal protectlcm clause Art IU SeCtion 10 of the WVa Constitution Counsel stated that had the claimant worked for a private employer he would have been covered j)y workers compensation There are no rules or regulaUons governing whether an Inmate works for DOH or a private employer Thus there Is no rational basiS for how they are assigned Underbn the elaimant argued he has been wrongfully dlscrfmlnated against
The employer stated that the claimant was barred frQm receiving workers compensatlc)O WVa Code sect23-4-1e(b) He was an Inmate subject to confinement and was not In a PIE program which Is an exception The participant Inmates are stUI Incarcerated While In the Work Release program The OOJ has no authority to decide the statute Is Constitutional The claimants remedy Is to convince the state legislature to change the statute Counsel for the employer stated that his mecilcal bills were covred by Department of Corrections Counsel argued that the OOJ must affirm the Order Counsel Indicated that once paroled the claimant was not eligible for further medIcal treatment to be paid by Department of Corrections
13
000015
William Crawford JCN 2014016722
DISCUSSION
This case Is before the OffIce of Judges based on a protest to the Order regarding tbe compensElbllltyof the claim W- Virgins Code -523-4-1 provides for benefits to employees who receive an Injury In the course of and as a result of their covered employment The more preci$e $Sue presented hre Is whether the claimant Is entitled to benefits for an InjJJry he received while he waS an inmate working on a crew pursuant to agreements between himselfi the Department of corrections and DMslon of Highways
i ---------------------------------------------------------------------~-
W Va Code sect23-4-1 9 provides that for all awards made on and after July 1 I 2003 the resolution of any Issue shall be ba~ upon a weighing of atl evldenoe pertelnlng -lothe Issue and a finding that8 preponderance of themiddot evidence supportsmiddot the chosen manner of resolution The process of weighing evld~nce $hall include ~ut not be limited to an assessmei1t of the r~lecC credlblRty materiality and rellabllty that the evidence possesses In the context of the Issue presented No Issue may be resolved by allOWing certain evidence to be diSpositive Simply because It Is reflable and Is mosJ favor-ble to a partys Intrests or position The resolution of Issues n claims for compensation must be decided on the merits and not according to any prinCiple that requir statut governing workers ~ompeJS~lon to be Ilb~rally conStrued because th~V are remedialili natute If after weighing all of the evidence regarding an Issue there Is a finding that an equal amount of evidentiary weight ~$ for each side the resoltiQcm that is most con$lstent With the claUnant$ position Will be adopted
Preponderence of the evldenQe means proof that $omethlng Is more likely 80 thail nbt ~o In other words a preponderance Of the evidence means such evidence when considered and compared with opposing evidence Is more pe~uaslve or convincing Pre~nderance of the evidence may not be determined by merely counting the number of witnesses reports evaluations or other items of evidence Rathermiddotft Is datennlned by assessing the persaslven8$Sof the evidence Includlng the opportUnity for knowledge Information possessed and manner of testifying or reporting
While working on a highway crew on March 282013 the claiment badly Injured his hand In a wood chipper While there are some variances In the claimants statements compared to witneamp$ statements about the particulars of the InJury none of those differences would change the outcome of this Decision and thus are not relevant to the discussion There Is no dispute that the claimant was Injured as a result of his work on the road crew while he was an inmate at the Charleston Work Release Centr His inJuries fe$ulted In surgery and hospitalization at CAMC where his medical bills In e)(cees of $90000 were paId by the Department of Corrections He was paroled soon after he was released from the hospital
The claim was rejected by an Order dated November 15 2013 which denied the application for benefits as it was determined that he did not sustain an Injury In the course of and resulting from his employment The claim administrators Investigation
14
000016
WilHam Crawford JON 2014016722
Inmates and that they must pay them the same wages non-Inmate workers and they must provide workers compensation coverage for them (See deposition of Jeff stinnett Administrator of the Charleston Work Release Center dated February 5 2015) Most of the private employment of Inmates 18 In fast food reurants grocery stores and factorieS Bobby WIlliams a case manager at the Charleston Work Release Center testified on March 31 2015 that he talked tolnmat~ to see If they wanted to work on a DOH crew He said that to m It made sense to place inmates In posiUons In the community In which they would be released The claimant was to be paroled to Hardy County which Is not within a driving distance to Charleston
The claimant argued that there were no rules or regJlations that would determine -shywhether an Inmate was placed In a private companymiddot or with DOH However this placement- would middotdetermln their fate If -they were InJured While on work refeaee Counsel for the claimant argued that this disparate treatment was discriminatory Counsel cited the West Virginia Supreme Court of Appeals holding In State ex ret Boan YS RlcIDardson 482 se 2d 162 ~va 1966) In which the court held that a workers compensation statute atfeQtlng economic rights may not be used to discriminate among a class of In~lvl~uals In similar circumstances and that any such statute violates the equal protection clause Art IU Section 10 of ttle WVa Constitution The Court stated that ~ would look to whe~her the classffication was rational and Qbased on socliil economic historic or geographIc factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally Id at 164 The claimant argued that he was a inmbar of Incarcerated prisoners in Which all persons weranot treated equally In that some qualified for workers compensation coverage and others did not
There Is no disagreement In this case that W Va Code sect23-4-1e(b) bars the claimant frC)O1 r~elpt of workers compensation benefltB The claimant argues that this law Is unconstltutlonal The Offlce of Judges Is not an Article III Court and does not have jurisdiction to rule a sttule is unconstitutional Therefore itmiddot1S found that the Order properly rejected the claim pursuant to W Va Code sect23-41e(b)
CONCWSlONS OF LAW
Pursuant to W Va Code sect23-4-1e(b) the claimant is ineligible to receive workers compensation benefits fer an Injury he received while In a Work Release Center performing work for Division of Highways In accordance With agreements with Department of Corrections
It Is therefore ORDERED that the Claim Administrators Order dated November 152013 be AFFIRMED
16
000017
William Crawford JON 2014016722
APPEAL RIGHTS
Under the provisions of WVa Code sect23-5-12 any aggrieved party may file a written appeal wlthlnthJrty (30) days after receipt of any decision or action of the Administrative Law Judge The appeal shall be filed ~Irectly with the Workrs Compensation Board of Review at PO Box 2828 Cha~eston WV 263~9
Date July 6bull 2015
RibcCca S CharI Administrative Law ludp
RSCQtc
cc WILUAM F CRAWFORD JOHN HENRY SKAGGS -COUNSEL FOR CLAIMANT DEPT OF CORRECTIONS-WORK RELEASE LISA WARNER HUNTER - COUNSEL FOR EMPLOYER AMERiCAN ZURICH INS CO
17
000018
William Crawford JCN 2014016722
JCN
Date
2014016722
July 6 2015
ReconJ Considered
The Clalmanfs protest to the Claims Administrators order Of regarding REJECTION OF CLAIM
November 15 2013
EVIDENCE SUBMITTED
Claimant Evidence
Document Type Not Specified Document Date 11112000 Submit Date 6Q012014 Author EMPlOYERICLAIMANT - WORK AGREEMENT
DoaIment Type NotSpepified Document Date 1112OQ4 Submit Date 612012014 Author WV DIVISIONS OF CORRECTIONS - POUCY
OIRECnVE
Document Type Not Specified Document Date 41112006 Submit Date 612012014 Author CHIPPERISHREDOER SAFElY - K-STATE
ARTICLE
Document Type Oocum~nt Dale Submit Date
Not Specified 41612008 612012014
18
000019
Willism Crawford JON 2014016722
Author HAZARDS OF WOOD CHIPPERS - OSHAOOV
Document Type Not-Specified Document Date 7112010 Submit Date 812612014 Author DIVISION OF CORRECTIONS-2010 EXECUTIVE BUDGET
STATEMENT
Document Type Not Specified-----DocumenrDste=------r71t212010----------------------- ----
Submit Date 812612014 Author NEWSPAPER ARTICLE~DEPTOF CORR~CTIONS
Document Type NotSpecified Oocument Date 412612012 Submit 08te612012014 Author CONVICT WORKFoRCE AGREEMENT
Document Type -Not Specifted Document pate 4I26J2012 Submit Date 812012014 Author CLAIMANT - CONTRACT FOR PLACEMENT
Document Type NotSpeCified [)(lcument Date 1112612012 Submit Date 1123i2014 Author WORK RELEASE RECORD (111261122-19-13)
Document Type Not Speclfjed Document Date 1112712012 Submit Date 112312014 Author CONTRACTIPLACEMENT ON ROADCOMMUNITV
CREW
Document Type Not Specified Document Date 312812013 Submit Date 112312014 Author DUTY OFFICER REPORT
Document Type Not Specified Document Date 32812013 Submit Date 1232014 Author INCIDENT REPORT WITH ATTACHED MEDICATION
FORMS
19
000020
William Crawford JCN2014016722
Document Type Not Specified Document Dale 4412013 Submit Date 112312014 Author WILLIAM CRAWFO~D ~ STATEMENT
Document Type Not Specified DocUment Dale 412512013 Submit Date 611912014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 121102013 Submit Date 1l23t014 Aulhor CLAIMANTS DEPT OF CORRECTIONS FILE
Document Type Not Specified Document Date 12312014 Submit Date 112312014 Author CLAIMANT - CONTRACT PLACEMENTIWORK RELEASE
CENTER-UNDATED
Document Type NotSpeclfied Document De 113112014 Submit Date 2412014 Author EMPLOYER INTERROGATORIES
Document Type Not Specified Document Date 62312014 Submit Date 012312014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 12118204 Submit Date 11412015 Author BETIY SLACKmiddot DEPOSITION
Document Type Not Specified Document Date 21512015 Submit Date 212612015 Author JEFF STINNETTmiddot DEPOSITION WIEXHIBiTS
Document Type Not Specified Document Date 313112015 Submit Date 412212015 Author BOBBY WILUAMS - DEPOSITION
20
000021
JCN 2014016722WlUlam Crawford
Emglgyer Evid8DC8
Document Type Npt Specified ------f)ocumentDate--tlf2mo2-------------------- shy
$lIbmiiOate 73112014 Author WORK RELEASE STATUS MASTER FURLOUGH
AGREEMENT
Document Type Not Sp~lfied Document Date 312812013 Submit Date 713112014 Author OFFICE OF WV AUDITORmiddot FINANCIAL INFO MANAGEMENT
SYSTEM INVOICE SHEETS
Document Type Not Specified Document Date 312812013 Subinlt Date 713112014 Author DARRELL SIGMON - STATEMENT
Document Type Not Specified Document Date 31282013 Submit Date 713112014 Author ROCKY pARSONSmiddot STATEMENT
D~umentType Not Specified Document Date 612312014 Submit Date 713112014 Author BETTY SLACKmiddot AFFIDAVIT
CLOSING ARGUMENTS
21
000022
WillIam Crawford
PalY Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted tettE3FDate Party Submitted Letter Date
July 1 2013 Thereafter the rate would remain at eO of the federal minimum wage rate Corrections would establish acertified training course on chainsaw usemiddot to Inmates and only those trained would be permitted to use a chainsaw There was an agreement dated January 11 2000 between Division of Corrections and DOH regarding crews of Inmates iupplled to DOH Inmates fom Correctional Centers would be paid $150 per hour and Inmates from Work Release Centers and Beckley Correctional Cemer would be paid $450 per hour DOH would reimburse Corr~Uons at the rate of $218800 per m()nth per officer Correctl()ns would Invoice DOH for Inmate work performed The agreement stated that Inmates performing services were not empl()yenees of the state entitling them to any benefits such employees might have
---------rin-cl~middotInLgbut not limited to Insurance worker compensation benefltspension sick and annual leave Further Corrections would provide any medical care needed by inmates performing services An agreement dated April 26 2012 provJded Qo~jflollS fQl Corrections to supply Inmale crews to DOH Crews were not permitted to operate heavy motorlz~ equipment or anything larger than a riding lawn mower DOH was to provide safetY equipment Inmates from Correc(lonalCenters and Wortlt Camps Wculd be paid $150 per hour and inmates frOinWork Release Centers and BSCkleyand Ohio County CQfTeQtfonal Centers would be paid $450 per hour until June 30 2012 and then $5~20 beginning July 1 2012 and beginning July 1 2013 the rate Increased to $580 per hour beJng 80 of the federal minimum wage and It would rise and filII In accorclance with the federal minimum wage
21 The claimantsubmitted a Contract for Plaoement at a Work Release Center slgne~ by the claimant dated January 23 2014 The clalm_nt ~ at Pruntytown Correctional Center and was to be put on work release for a probationary 30-day period at Charleston Work Release Center The Contract concerned the verioUl requirements placed on the claimant and It stated that he was agreeing to be responsible for all medical expenses he Incurred while at the Center He also agreed that prfor to receiving medical attention except for an emergenoy he had to notify the Administrator
22 The claimant submitted the employerS answers to Interrogatories and requests for producUon of documents dated January 31 2014 The employer objected to the request of the number of work release inmates Injured during their work for the last five years and tl18 naeof the Injury and other Information The employer did not answer The employer also objected to the Interrogatory aSking whether any workers compensation benefits had been paid and the amount paid However the employer stated that it was unaware of any Inmate ever recelvlng workers compensation benefits for Injuries received while performing services for another state agency Further as wards of the state inmates who require medical care related to services they are providing for a state agency while under authority of the Department of Corrections are provided care through the Department of Corrections In respo088 to Whether the claimant was working for an approved WOrk release program at the time of Injury the employer said that he was under a contract for placement at a work release center and under a Contract for Placement on Road Crew or Community Crew agreement In accordance with a WV DOHIWV Olvlslon of Corrections Statewide Convict Workforce Agreement
e
000008
WIlliam Crawford JON 2014016722
23 The employer submitted an Affidavit of Betty Slack dated June 23 2014 Ms Slaok stated that $he was the Deputy Direclor of WV correctional Industries and had held the position since December 2009 She managed the Prison Industries Enhancement rPIEQ Program for Division of Corrections guided by west Virginia Code)
sectsect25--7-13 and 25-7-14 According to M$ Slack all PIE prograrns must be operated Within the prison setting but none have ever actually operated In West Virginia She said that none of the current Inmate work programs now operating are regulated by PIE
24 The claimant submitted II deposition transcript of Betty Slack dated December 18 2014 Ms Slack testified that she worked as the DeplID Director of the West Virginia Correctfonallnduitrles since 2009 She said she had production shops In the prison facilities that produced fumlture seating printing engraving mattr8$S88 and yarJous Q~er products and that she oversaw productl~ She ove~8$ emploYees both Inmate middotand civilian She sald that certain inmates would be cleared for work and that she could pick them from a list of workers She said there are some Inmate work from the Charleston Work Release that help load and unload trucks and do Janitorial Jobs They are paid hourly She said the Work Release workers are nearing a release from prison She said that the work~r Is not Pflid dlreotly~ the Charlast~ Work Release Center Is paid and It makes deductions for room and board and the rest Is put In the Inmat~ account She said the workers do not receive benefihi She was not familiar With the Charleston Work Release Program ~xceptmiddotth8t she got Inmate workers from thete when requested She noted that Jeff Stinnett is the administrator for the Charleston Work Release Center
25 The claimant submitted a transcript of the deposition of Jeff Stinnett dated february 5 2015 Mr Stlrmett statd that hI was the Administrator of the Charleston Work Release Center on Brooks Street in Charleston WV He stated that he had worked there since 1993~ He stated that he oversees dally operations of the facHlty which has capacity for slxtyslx He stated ~cd he recalled the claimant and that he signed a contract to go to the work release center Mr Stinnett stated that workers sometimes work for other state agencies ~esldes highways but DO H was the only one With a formalized agreement with corrections He stated that there were eligibility criteria for work release He said that some Inmates work at fast food restaurants grocery stores ancl factory work When worklrg In priv~te employment they are paid the same wages as their co-workersand have standard deductions from their pays such as FICA He stated that as far as he knew the private employers reported lhese workers wages for workers compensation purposes Every worker In private or agency work pays 5 dollars per day of their earnings to Corrections for maintenance and support The majority of rest goes Into a trustee ~ount that they receive once discharged but they can get a small amount weekly for basic needs Mr StJnneH stated that he recalled one other Individual injured while working on a Kanawha State Forest crew In the past He stated that there was a new regulation regarding the use of chalnsaws and the size of equipment inmates can operate but these were Highways rules and he was not familiar with them He stated that Corrections teaches chalnsaw training for the Inmate work but not for other equipment Mr Stinnett stated that Health
7
000009
WIlliam Crawford JON 2014016722
Right Is one place Inmates go If they need health oare Which Is billed on a sliding scale and many times is free for the Inmates
26 The claimant submitted a transcript of the deposition of Bobby Williams dated March 31 2015 At the beginning of the dep)$IUon cQunsel for the employer placed on the record an objection to the request for an e)(tenalon of time frame filed by claimants counsel The employer did nCit object to the deposition but did object to the extenslon for the purposes of keeping open the reoord In the protest Mr Williams sttedthat he was employed at the Charleston Work Release Center as a case manager and he Is the em~ment coordinator His duties Include assisting Inmates with parole paperwork and helping them look for work He stated that he recalled the claimant and that he was in an accident He stated that inmates were responslbte for seeking private employment He said he would talk to the inmates and ask If they wanted to work for Highways on a road crew He would look to see where the InmateS WOuld be released and ir It would be In the Charleston area It made $8nse to have them work In the commul1lty He stated that he was not aware of any other residents at his facility that were Injured while working for DOH He stated that he could not recall whether the claimant asked to work for DOH Mr Williams was aware that the claimant was to be paroled to Har~y County which is not within a driving distance for work In Charleston He said that sometimes they transfer Inmates to a work release center closer to where they will be paroled~
27 The claimant filed a clOsing arg~ment dated July 11 2014 The claimant argued that he was entHled to WQrk~rs compensation beneflt$ for an injury IIe received while he was In a prison work release program involving the Department of Highways (DOHiI) The claimant stated that he was seMog a period of confinement at the Charleston Work Release Center and was working for the DOH pursuant to a WQrk release agreement when he was Injured on March 28 2013 He stated that his hand was caught In a wood chipper and was mangled He was treat~d at CAMe where his medical 1)111 Were In excess of $90000 and were paid by the Department of Corrections The claimant said he partfallyamputated fingers of his left hand
Counsel for the clilmant stated that he hid not been ible to Identify the rules and regulations that applied to the Interagency employment of inmates He had found a policy dated August 12013 which postdated the claimants Injury and a work agreement that also postdated the Injury However a January 1 2004 poUcy was In effect at the time It governed the management of Inmate work crews for DOH and stated that In the event of a serious injury an Inmate was to be taken to an emergency room Further the policy Indicated that work release Inmates would have occa$lon to work In situations that may result in aCCidents and may require safety eqUipment There was also an agreement between Corrections and DOH dated April 26 2012 which stated the obligations of each agency for Inmate work crews This agreement provided for training by Corrections for the inmates to learn to safely operate ohalnsaws Further inmates were to be paid $450 per hour The claimant signed an agreement for work release when he was at Pruntytown
a
000010
WiUiam Crawford JCN 2014016722
Counsel noted that WVa Code sect23-4-1e(b) states
(b) Notwithstanding any provision of this code to the contrary no person confined in a state correctional f~iI~y or jail who suffers Injury or a disease In the eour$e of and resulting from his or her work during the period of confinement which work Is imposed by the admlntration of the state correctional facility or Jail and IS not suffered during the persons usual employment with his or her usual eMployer when not confined shall receive benefits under the provisions of this chapter for the InJUry or disease ProVIded That individuals otherwise QOIlftned In a state correctional facility or JaU or at a Juvenile services facility IInd working In a program authorized by sections fourteen or sixteen of article sevenchapter twenty-five of this code shall be eligible to receive benefits under the prov~Jons of this chapter while working In an authorized program The coverage for benefits may be obtained either by the prtvate entity or by agreernentwJth the state agency as specified In subsection (5) subsection (a) of sections fourteen and sixteen of artlc1e sevenchapter twenty-five of this code
Counsel also noted that WVa Code sect23-4-1e(b) referenced sect125-7-14 and 25shy7-16 which relate to a Prison Industry Enhancement (PIE) CertlflcIQn middotProgram Thus counsel said that there were two situatIons In whIch an Inmate is eligible for workersmiddot compensation benefits - working for PrISon Industries and working in the private sector pn work release The clamant argued thet there was no rational baels to discriminate betWeen prisoner classifications regarding workers compensation benefits The claimant was performing work that was of such nature that he could have done for a private employer He argued that there was no significant difference In status between the claimant and an inmate working for Prison Industries or placed in priVlllte employment who Is covered by workers compensation
Counsel noted significant differences between the 2012 agreement and earlier agreement$ The 2012 agreement provides that Inmates shall not operate equIpment larger than a riding lawn mower Further Inmates are not to use cnalnsaws WIthout special training Counsel argued that the hazardousness of operaUg wood Chippers Is shown In publications by OSHA
Citing state ex reI Boan vs Richardson 482 SE 2d 162 foNVa 1986) counsel argued that the Supreme Court of Appeals has held that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In similar circumstances and that any such statute violates the equal protection clause Art III Section 10 of the WVa Constltltlon The Court stated tJ1at It would look to whether the classlflcatlon was rational and based on social economIc historic or geographic factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally
9
000011
wiUlam Crawford JON 2014016722
The claimant argued that he was a member of a class of Incarcerated prisoners In which all persons are not treated equally Some of these workers are mandated to receive workers compensation and others are not The dlfferentiaUon between class members had nothing to do with the work performed 8$ he colfld have operated a wood chipper for a private employer Further placement In work Is not a function of anything other than availability of work so It middotIs a matter of chance or fate There was no rational basis on which to diSCriminate betwen Inmates W~rklng for Prison Indmries Working In private employment or working for a state agency The claimant argued that the denial of workers compensation to the claimant under these circumstances does not
_____--advance-LreasonablLgoveOlmemal--Dteresl_[bLretnedieLavallable_Jo_prlvaleyen-y--shyemployed inmates and state employed Inmates are different In that privately employ Inmet are coverd by workers CQmpensatl~n whereas those employed by a _e middotagencyrenot The onlymiddot remedy for astate employed InmatemiddotJsmiddota claim-under 42U$C 1983 for cruel and unusual punishment but this claim rqulres proof of deliberate jndlmrence middotto the hazard aOd this burden of proof Is eXtremely dlfllculttb meet Thus there are substantial dltterences In the remedies available to Inmates injured middoton the Job The ~almant also noted that Inmates engaged In work for the state re paid very low wag and had he been empfoyed by a PriVate employer he would have had benefit of workers compensation coverage
28 The employer filed a closing argument dated August 21 2014 Th employer argued that the ofalm was properly rejected because the clalmamiddotnl did not suffer an Injury In the course of and Ii result middotof covered employment The employer argued that the claimant was not an emplQyeeentiUed to workers compenSation ~ntlts Th employer noted ~hBt the Qlalrnant wa~ In~arcetated at the time of the Injury He was working on March 28 2013 on Corridor G for the Department of Highways when his hand was caught In a wood chipper He was nated at CAMe and his medical bills were paid by ttl Department of Corrections The employer felt that the circumstances of how the claimant became Injured were Irrelevant to compensability The employer stated that there was flO dispute that the claimant was performhig $8rvlces for DOH as part of his connnement at the Charleston Work Release Center He signed an agreement on November 27 2012 whkh was subject to a Contract for Placement at amiddot Work Release Center that he also signed His dUties with DOH were contingent on hlsmiddotContract for Placement on Road Crew or communitY Crew whIoh he signed on November 27 2012 The employer argued that according to documents raled to the agreement between the Department of Corrections and DOH Corrections would provide DOH with Inmates to perform dUUes for pOH The agreement outlined the terms and canditi~ related to the use of Inmate services and the compensation that Corrections would receive on behalf of the Inmates The agreement provided that the Inmates p$rforrrdog servfc~ under this agreement will not be employees of the State entitling them to any benefits such employees might have including but not limited to Insurance worker compensation benefits pensions sick and annual leaveII
The employer argued that the only wayan Inmate would be entiHed to workers compensation benefitS Is pursuant to placement In a program established under WVa Code sect25-7-14 or sect25-7-16 which apply to programs estabUshed to the federal Prison
10
000012
William Crawford JON 2014016722
Industry Enhancement (PIE) Certification Program The evidence shows that to date no such programs have ever existed and no DOCDOH road crew program Ie part of PIE
The employer argued that WVa Code sect23-2-1deflnea employer and sect 2~2-1a defines aemployeeD The employer argued that the claimant Is barred from receiving workers compensation benefits due to his status as an Incarcerated individual at the time of his injury because WVa Code sect23-4-1eb) provides that I[n)otwlthstandlng any provislcm of this code to the contrary no person confined hi a state correctional facility
____-----Dr_JaILwbo-suffersJnJWyen--DudlseaseJnJbeMursUlLand1uuJtlng1mmltlsoLhe( w~ork_____ during the period of confinement whiCh work Is Imposed by the ~dmlnlstratlon of the state correctional facility or Jail and is not suffered during the persons usual employment with his or her usUal employer when not conftnedshall receive benem under the provisions of thl~ chapter for the injury or d~ease
The employer argued that the code 8peclfie$ that an Inmate Is not entitled to workers compenSation If Injured while completing work imposed by the administration ofthe state correctional facility or jail However had he been working in a PIE program he would hav~ been enHtled to workers cC)mpensation beneflts The employer argued that tbe claimants closing argument confirmed this finding- but he argues that his constitutional rights have been violated In response the employer argued th~t the PIE program flowed out of federal leglslatlcm and (hat the clear and rational basis for the requirement that private employers provide workers compensation ooverage for Inmate employees under the Pie program is 80 no unfair advantage la given to the private employer
The employer argued that the olaimants constitutional argument falla and that his only recourse Is to petition the legislature for a change In the current law However the employer argued that any determination by the Court that all Inmates are entitled to workers compensation benefits would slgnlJlcantIy ImpaCt the states budget
29 The claimant flied a Reply to Closing Argument and Exhibits dated August 26 2014 The claimant clarified that his argument based upon the PIE program was based upon the employers affidavit Indicating that program Is dormant He stated that even If the PIE program had remained dormant this did not mean that Inmates were only empioyed by DOH and that statements by the Director of Division of Corrections and the Governors BUdget document clearly state that Inmates are employed In the private sector The claimant attached Exhibit A to this filing and he stated that In this attachment Mr Rubenstein stated that the majority of Inmates -e empoyed In fast food industry and restaurants The claimant again argued that there was a dlaparate treatment between inmates who work for the Department of transportation and those In any kind of private employment and this was a violation of the Canstltudan
30 The employer filed a Response to Closing Argument and exhibits dated September 9 2014 The employer argued that the claimants reply was submitted on
11
000013
WIUlam Crawford JCN 2014016722
August 26 2014 which was filed after the ten day prlod for case summation pursuant to WVa CSR sect 93~1-65 since the time frame expired on August 11 2014
The employer stated that the provlslons of Article 7 of Chapter 25 of the West Virginia Code were drafted to comply with 18 USC sect 1161 (c) the PIE program The federal legislation allOWS state andmiddot local prisons to be exempt from federal restrictions on prisoner-made goods entering Inte_te commerce and allOWS private individuals tn some clrcumst~mces to hire Inmates for production of goods However the Inmates must be paid similar wages 80 as not to allow a private Industry to obtilhlan unfair
------_advantagacomparecUO-the-prlva~sector~-ThaemployJtr--8tatedJbaUmgatiorLl8gamlng_______ 18 OSC sect 1761(0) Is cleaithal Its purpose Is to protect private businesses and that It was not enacted to protect Inmate workers The ernp~oyer cited McMaster v Minnesota 30 F3d 9679811994 US App Lexls 1861816 (8middot CIr Minn 1994)
31 The employer flied a Seoond Closing Argument ~ated MarQh 162015 The employer stated that the Issue was whether the claimant was entitled to receive workers compensation benems after sustainIng an injury while working for DIVIsion of HlghwaY$ on a work crew from the Chal1stQn Work Release Center The employer noted that the claimant signed a Maser Furlough Agreement on November 27 2012 He also signed a Contract for Placement at a Work Release Center His duties WIth DOH were contingent on a Contract for Placement on Road Crew or Community Crew which he signed on November 272012
The employer noted that there were agreements between Department of Corrections and Division of Highways regarding Inmate servk Neither DOH nor DOC conSidered the Inmate workers fo be employees and the contract stated that they were not employees of the State and not entitled to employee benefits Including degworker compens~lljon
The employer argued that the only conditions under which an Inmate is entitled to workers compensation benefits Is if he were placed In a Prison Industry Enhancement (PIE) Certification Program under WVa Codmiddote sect 25-7-14 or sect25-7-16 Ther have never been any PIE programs In West Virginia and so the claimant was not part of this program
The employer responded to the claimants argument that inmates employed in the private sector outside the PIE program and they are coved by workers compensation and thus the noncoverage for inmates such as the claimant Is unconstitutional The employer argued that Ms Slack testified that Correctional Industries operates about 17 production shops In which inmates work Some Inmates from the Charleston Work Release Center assist but none of the (nmates receive benefits Mr stinnett administrator of the Charleston Work Release Centertestlfled that there were criteria for Inmates to be placed at the Work Release Center and there was a running list of Inmates who desired placement When a bed opened an Inmate Is placed there He stated that about 45 Inmates work In private Industry rather than with
12
000014
William Crawford JCN 2014016722
the State The C~nter attempted to get private Jobs for inmates who would ultimately be released In Charleston so that they can continue to work when reJeased
The employer argued that the clalm_nt was barred from receiving workers compensation duetohts Incarceration at the time of his inJury pursuant to WVa Code sect23-4-1e The employer noted that PIE program Inmates are provided coverage by the private employer and that the purpose of this was to Implement federal regulations and protect private businesses from unfair competition Thus there is a clear and rational basis for dlff8f~mces between Inmates wC)fklng for private employers In a PIE program
32 The claimant filed a Supplemental Closing Argument dated March 20 2015 The claimant argued that the statutory framework regarding work- rajease and the provision of beneflt$ and the Implementation of the statute by the Department of Corrections violates the equal protection clause The claimant argued that not only do Inmates who woUld work under the PIE program Of ever Imptemerited) receive workers comperl$ation ~enet1ts but those who are released to work in the private sector receive workers compensation and other benefits The claImant argued that those who work for Department of Highways do not relieve the ame benfllsas those similrly situated Inmates whQ work In private sector jobs and this is discrimination with no reasonabie basis
33 Counsel for the claimant and the employer presented closing arguments at a hearlng on May 5 2015 Cou for the claimant _ated that the Issue was oompensabllityfor an Inmate Who Injured his hand while working for a Division of Highways crew while at a Work Release Center Counsel for the claimant cited State ex ret Boan VS Richardson 482 SE 2d 162 ~Va 1966) IInd argued that the SUpreme Court of Appeals ruled that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In slmUar circumstances and that any suqh statute violates the equal protectlcm clause Art IU SeCtion 10 of the WVa Constitution Counsel stated that had the claimant worked for a private employer he would have been covered j)y workers compensation There are no rules or regulaUons governing whether an Inmate works for DOH or a private employer Thus there Is no rational basiS for how they are assigned Underbn the elaimant argued he has been wrongfully dlscrfmlnated against
The employer stated that the claimant was barred frQm receiving workers compensatlc)O WVa Code sect23-4-1e(b) He was an Inmate subject to confinement and was not In a PIE program which Is an exception The participant Inmates are stUI Incarcerated While In the Work Release program The OOJ has no authority to decide the statute Is Constitutional The claimants remedy Is to convince the state legislature to change the statute Counsel for the employer stated that his mecilcal bills were covred by Department of Corrections Counsel argued that the OOJ must affirm the Order Counsel Indicated that once paroled the claimant was not eligible for further medIcal treatment to be paid by Department of Corrections
13
000015
William Crawford JCN 2014016722
DISCUSSION
This case Is before the OffIce of Judges based on a protest to the Order regarding tbe compensElbllltyof the claim W- Virgins Code -523-4-1 provides for benefits to employees who receive an Injury In the course of and as a result of their covered employment The more preci$e $Sue presented hre Is whether the claimant Is entitled to benefits for an InjJJry he received while he waS an inmate working on a crew pursuant to agreements between himselfi the Department of corrections and DMslon of Highways
i ---------------------------------------------------------------------~-
W Va Code sect23-4-1 9 provides that for all awards made on and after July 1 I 2003 the resolution of any Issue shall be ba~ upon a weighing of atl evldenoe pertelnlng -lothe Issue and a finding that8 preponderance of themiddot evidence supportsmiddot the chosen manner of resolution The process of weighing evld~nce $hall include ~ut not be limited to an assessmei1t of the r~lecC credlblRty materiality and rellabllty that the evidence possesses In the context of the Issue presented No Issue may be resolved by allOWing certain evidence to be diSpositive Simply because It Is reflable and Is mosJ favor-ble to a partys Intrests or position The resolution of Issues n claims for compensation must be decided on the merits and not according to any prinCiple that requir statut governing workers ~ompeJS~lon to be Ilb~rally conStrued because th~V are remedialili natute If after weighing all of the evidence regarding an Issue there Is a finding that an equal amount of evidentiary weight ~$ for each side the resoltiQcm that is most con$lstent With the claUnant$ position Will be adopted
Preponderence of the evldenQe means proof that $omethlng Is more likely 80 thail nbt ~o In other words a preponderance Of the evidence means such evidence when considered and compared with opposing evidence Is more pe~uaslve or convincing Pre~nderance of the evidence may not be determined by merely counting the number of witnesses reports evaluations or other items of evidence Rathermiddotft Is datennlned by assessing the persaslven8$Sof the evidence Includlng the opportUnity for knowledge Information possessed and manner of testifying or reporting
While working on a highway crew on March 282013 the claiment badly Injured his hand In a wood chipper While there are some variances In the claimants statements compared to witneamp$ statements about the particulars of the InJury none of those differences would change the outcome of this Decision and thus are not relevant to the discussion There Is no dispute that the claimant was Injured as a result of his work on the road crew while he was an inmate at the Charleston Work Release Centr His inJuries fe$ulted In surgery and hospitalization at CAMC where his medical bills In e)(cees of $90000 were paId by the Department of Corrections He was paroled soon after he was released from the hospital
The claim was rejected by an Order dated November 15 2013 which denied the application for benefits as it was determined that he did not sustain an Injury In the course of and resulting from his employment The claim administrators Investigation
14
000016
WilHam Crawford JON 2014016722
Inmates and that they must pay them the same wages non-Inmate workers and they must provide workers compensation coverage for them (See deposition of Jeff stinnett Administrator of the Charleston Work Release Center dated February 5 2015) Most of the private employment of Inmates 18 In fast food reurants grocery stores and factorieS Bobby WIlliams a case manager at the Charleston Work Release Center testified on March 31 2015 that he talked tolnmat~ to see If they wanted to work on a DOH crew He said that to m It made sense to place inmates In posiUons In the community In which they would be released The claimant was to be paroled to Hardy County which Is not within a driving distance to Charleston
The claimant argued that there were no rules or regJlations that would determine -shywhether an Inmate was placed In a private companymiddot or with DOH However this placement- would middotdetermln their fate If -they were InJured While on work refeaee Counsel for the claimant argued that this disparate treatment was discriminatory Counsel cited the West Virginia Supreme Court of Appeals holding In State ex ret Boan YS RlcIDardson 482 se 2d 162 ~va 1966) In which the court held that a workers compensation statute atfeQtlng economic rights may not be used to discriminate among a class of In~lvl~uals In similar circumstances and that any such statute violates the equal protection clause Art IU Section 10 of ttle WVa Constitution The Court stated that ~ would look to whe~her the classffication was rational and Qbased on socliil economic historic or geographIc factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally Id at 164 The claimant argued that he was a inmbar of Incarcerated prisoners in Which all persons weranot treated equally In that some qualified for workers compensation coverage and others did not
There Is no disagreement In this case that W Va Code sect23-4-1e(b) bars the claimant frC)O1 r~elpt of workers compensation benefltB The claimant argues that this law Is unconstltutlonal The Offlce of Judges Is not an Article III Court and does not have jurisdiction to rule a sttule is unconstitutional Therefore itmiddot1S found that the Order properly rejected the claim pursuant to W Va Code sect23-41e(b)
CONCWSlONS OF LAW
Pursuant to W Va Code sect23-4-1e(b) the claimant is ineligible to receive workers compensation benefits fer an Injury he received while In a Work Release Center performing work for Division of Highways In accordance With agreements with Department of Corrections
It Is therefore ORDERED that the Claim Administrators Order dated November 152013 be AFFIRMED
16
000017
William Crawford JON 2014016722
APPEAL RIGHTS
Under the provisions of WVa Code sect23-5-12 any aggrieved party may file a written appeal wlthlnthJrty (30) days after receipt of any decision or action of the Administrative Law Judge The appeal shall be filed ~Irectly with the Workrs Compensation Board of Review at PO Box 2828 Cha~eston WV 263~9
Date July 6bull 2015
RibcCca S CharI Administrative Law ludp
RSCQtc
cc WILUAM F CRAWFORD JOHN HENRY SKAGGS -COUNSEL FOR CLAIMANT DEPT OF CORRECTIONS-WORK RELEASE LISA WARNER HUNTER - COUNSEL FOR EMPLOYER AMERiCAN ZURICH INS CO
17
000018
William Crawford JCN 2014016722
JCN
Date
2014016722
July 6 2015
ReconJ Considered
The Clalmanfs protest to the Claims Administrators order Of regarding REJECTION OF CLAIM
November 15 2013
EVIDENCE SUBMITTED
Claimant Evidence
Document Type Not Specified Document Date 11112000 Submit Date 6Q012014 Author EMPlOYERICLAIMANT - WORK AGREEMENT
DoaIment Type NotSpepified Document Date 1112OQ4 Submit Date 612012014 Author WV DIVISIONS OF CORRECTIONS - POUCY
OIRECnVE
Document Type Not Specified Document Date 41112006 Submit Date 612012014 Author CHIPPERISHREDOER SAFElY - K-STATE
ARTICLE
Document Type Oocum~nt Dale Submit Date
Not Specified 41612008 612012014
18
000019
Willism Crawford JON 2014016722
Author HAZARDS OF WOOD CHIPPERS - OSHAOOV
Document Type Not-Specified Document Date 7112010 Submit Date 812612014 Author DIVISION OF CORRECTIONS-2010 EXECUTIVE BUDGET
STATEMENT
Document Type Not Specified-----DocumenrDste=------r71t212010----------------------- ----
Submit Date 812612014 Author NEWSPAPER ARTICLE~DEPTOF CORR~CTIONS
Document Type NotSpecified Oocument Date 412612012 Submit 08te612012014 Author CONVICT WORKFoRCE AGREEMENT
Document Type -Not Specifted Document pate 4I26J2012 Submit Date 812012014 Author CLAIMANT - CONTRACT FOR PLACEMENT
Document Type NotSpeCified [)(lcument Date 1112612012 Submit Date 1123i2014 Author WORK RELEASE RECORD (111261122-19-13)
Document Type Not Speclfjed Document Date 1112712012 Submit Date 112312014 Author CONTRACTIPLACEMENT ON ROADCOMMUNITV
CREW
Document Type Not Specified Document Date 312812013 Submit Date 112312014 Author DUTY OFFICER REPORT
Document Type Not Specified Document Date 32812013 Submit Date 1232014 Author INCIDENT REPORT WITH ATTACHED MEDICATION
FORMS
19
000020
William Crawford JCN2014016722
Document Type Not Specified Document Dale 4412013 Submit Date 112312014 Author WILLIAM CRAWFO~D ~ STATEMENT
Document Type Not Specified DocUment Dale 412512013 Submit Date 611912014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 121102013 Submit Date 1l23t014 Aulhor CLAIMANTS DEPT OF CORRECTIONS FILE
Document Type Not Specified Document Date 12312014 Submit Date 112312014 Author CLAIMANT - CONTRACT PLACEMENTIWORK RELEASE
CENTER-UNDATED
Document Type NotSpeclfied Document De 113112014 Submit Date 2412014 Author EMPLOYER INTERROGATORIES
Document Type Not Specified Document Date 62312014 Submit Date 012312014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 12118204 Submit Date 11412015 Author BETIY SLACKmiddot DEPOSITION
Document Type Not Specified Document Date 21512015 Submit Date 212612015 Author JEFF STINNETTmiddot DEPOSITION WIEXHIBiTS
Document Type Not Specified Document Date 313112015 Submit Date 412212015 Author BOBBY WILUAMS - DEPOSITION
20
000021
JCN 2014016722WlUlam Crawford
Emglgyer Evid8DC8
Document Type Npt Specified ------f)ocumentDate--tlf2mo2-------------------- shy
$lIbmiiOate 73112014 Author WORK RELEASE STATUS MASTER FURLOUGH
AGREEMENT
Document Type Not Sp~lfied Document Date 312812013 Submit Date 713112014 Author OFFICE OF WV AUDITORmiddot FINANCIAL INFO MANAGEMENT
SYSTEM INVOICE SHEETS
Document Type Not Specified Document Date 312812013 Subinlt Date 713112014 Author DARRELL SIGMON - STATEMENT
Document Type Not Specified Document Date 31282013 Submit Date 713112014 Author ROCKY pARSONSmiddot STATEMENT
D~umentType Not Specified Document Date 612312014 Submit Date 713112014 Author BETTY SLACKmiddot AFFIDAVIT
CLOSING ARGUMENTS
21
000022
WillIam Crawford
PalY Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted tettE3FDate Party Submitted Letter Date
23 The employer submitted an Affidavit of Betty Slack dated June 23 2014 Ms Slaok stated that $he was the Deputy Direclor of WV correctional Industries and had held the position since December 2009 She managed the Prison Industries Enhancement rPIEQ Program for Division of Corrections guided by west Virginia Code)
sectsect25--7-13 and 25-7-14 According to M$ Slack all PIE prograrns must be operated Within the prison setting but none have ever actually operated In West Virginia She said that none of the current Inmate work programs now operating are regulated by PIE
24 The claimant submitted II deposition transcript of Betty Slack dated December 18 2014 Ms Slack testified that she worked as the DeplID Director of the West Virginia Correctfonallnduitrles since 2009 She said she had production shops In the prison facilities that produced fumlture seating printing engraving mattr8$S88 and yarJous Q~er products and that she oversaw productl~ She ove~8$ emploYees both Inmate middotand civilian She sald that certain inmates would be cleared for work and that she could pick them from a list of workers She said there are some Inmate work from the Charleston Work Release that help load and unload trucks and do Janitorial Jobs They are paid hourly She said the Work Release workers are nearing a release from prison She said that the work~r Is not Pflid dlreotly~ the Charlast~ Work Release Center Is paid and It makes deductions for room and board and the rest Is put In the Inmat~ account She said the workers do not receive benefihi She was not familiar With the Charleston Work Release Program ~xceptmiddotth8t she got Inmate workers from thete when requested She noted that Jeff Stinnett is the administrator for the Charleston Work Release Center
25 The claimant submitted a transcript of the deposition of Jeff Stinnett dated february 5 2015 Mr Stlrmett statd that hI was the Administrator of the Charleston Work Release Center on Brooks Street in Charleston WV He stated that he had worked there since 1993~ He stated that he oversees dally operations of the facHlty which has capacity for slxtyslx He stated ~cd he recalled the claimant and that he signed a contract to go to the work release center Mr Stinnett stated that workers sometimes work for other state agencies ~esldes highways but DO H was the only one With a formalized agreement with corrections He stated that there were eligibility criteria for work release He said that some Inmates work at fast food restaurants grocery stores ancl factory work When worklrg In priv~te employment they are paid the same wages as their co-workersand have standard deductions from their pays such as FICA He stated that as far as he knew the private employers reported lhese workers wages for workers compensation purposes Every worker In private or agency work pays 5 dollars per day of their earnings to Corrections for maintenance and support The majority of rest goes Into a trustee ~ount that they receive once discharged but they can get a small amount weekly for basic needs Mr StJnneH stated that he recalled one other Individual injured while working on a Kanawha State Forest crew In the past He stated that there was a new regulation regarding the use of chalnsaws and the size of equipment inmates can operate but these were Highways rules and he was not familiar with them He stated that Corrections teaches chalnsaw training for the Inmate work but not for other equipment Mr Stinnett stated that Health
7
000009
WIlliam Crawford JON 2014016722
Right Is one place Inmates go If they need health oare Which Is billed on a sliding scale and many times is free for the Inmates
26 The claimant submitted a transcript of the deposition of Bobby Williams dated March 31 2015 At the beginning of the dep)$IUon cQunsel for the employer placed on the record an objection to the request for an e)(tenalon of time frame filed by claimants counsel The employer did nCit object to the deposition but did object to the extenslon for the purposes of keeping open the reoord In the protest Mr Williams sttedthat he was employed at the Charleston Work Release Center as a case manager and he Is the em~ment coordinator His duties Include assisting Inmates with parole paperwork and helping them look for work He stated that he recalled the claimant and that he was in an accident He stated that inmates were responslbte for seeking private employment He said he would talk to the inmates and ask If they wanted to work for Highways on a road crew He would look to see where the InmateS WOuld be released and ir It would be In the Charleston area It made $8nse to have them work In the commul1lty He stated that he was not aware of any other residents at his facility that were Injured while working for DOH He stated that he could not recall whether the claimant asked to work for DOH Mr Williams was aware that the claimant was to be paroled to Har~y County which is not within a driving distance for work In Charleston He said that sometimes they transfer Inmates to a work release center closer to where they will be paroled~
27 The claimant filed a clOsing arg~ment dated July 11 2014 The claimant argued that he was entHled to WQrk~rs compensation beneflt$ for an injury IIe received while he was In a prison work release program involving the Department of Highways (DOHiI) The claimant stated that he was seMog a period of confinement at the Charleston Work Release Center and was working for the DOH pursuant to a WQrk release agreement when he was Injured on March 28 2013 He stated that his hand was caught In a wood chipper and was mangled He was treat~d at CAMe where his medical 1)111 Were In excess of $90000 and were paid by the Department of Corrections The claimant said he partfallyamputated fingers of his left hand
Counsel for the clilmant stated that he hid not been ible to Identify the rules and regulations that applied to the Interagency employment of inmates He had found a policy dated August 12013 which postdated the claimants Injury and a work agreement that also postdated the Injury However a January 1 2004 poUcy was In effect at the time It governed the management of Inmate work crews for DOH and stated that In the event of a serious injury an Inmate was to be taken to an emergency room Further the policy Indicated that work release Inmates would have occa$lon to work In situations that may result in aCCidents and may require safety eqUipment There was also an agreement between Corrections and DOH dated April 26 2012 which stated the obligations of each agency for Inmate work crews This agreement provided for training by Corrections for the inmates to learn to safely operate ohalnsaws Further inmates were to be paid $450 per hour The claimant signed an agreement for work release when he was at Pruntytown
a
000010
WiUiam Crawford JCN 2014016722
Counsel noted that WVa Code sect23-4-1e(b) states
(b) Notwithstanding any provision of this code to the contrary no person confined in a state correctional f~iI~y or jail who suffers Injury or a disease In the eour$e of and resulting from his or her work during the period of confinement which work Is imposed by the admlntration of the state correctional facility or Jail and IS not suffered during the persons usual employment with his or her usual eMployer when not confined shall receive benefits under the provisions of this chapter for the InJUry or disease ProVIded That individuals otherwise QOIlftned In a state correctional facility or JaU or at a Juvenile services facility IInd working In a program authorized by sections fourteen or sixteen of article sevenchapter twenty-five of this code shall be eligible to receive benefits under the prov~Jons of this chapter while working In an authorized program The coverage for benefits may be obtained either by the prtvate entity or by agreernentwJth the state agency as specified In subsection (5) subsection (a) of sections fourteen and sixteen of artlc1e sevenchapter twenty-five of this code
Counsel also noted that WVa Code sect23-4-1e(b) referenced sect125-7-14 and 25shy7-16 which relate to a Prison Industry Enhancement (PIE) CertlflcIQn middotProgram Thus counsel said that there were two situatIons In whIch an Inmate is eligible for workersmiddot compensation benefits - working for PrISon Industries and working in the private sector pn work release The clamant argued thet there was no rational baels to discriminate betWeen prisoner classifications regarding workers compensation benefits The claimant was performing work that was of such nature that he could have done for a private employer He argued that there was no significant difference In status between the claimant and an inmate working for Prison Industries or placed in priVlllte employment who Is covered by workers compensation
Counsel noted significant differences between the 2012 agreement and earlier agreement$ The 2012 agreement provides that Inmates shall not operate equIpment larger than a riding lawn mower Further Inmates are not to use cnalnsaws WIthout special training Counsel argued that the hazardousness of operaUg wood Chippers Is shown In publications by OSHA
Citing state ex reI Boan vs Richardson 482 SE 2d 162 foNVa 1986) counsel argued that the Supreme Court of Appeals has held that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In similar circumstances and that any such statute violates the equal protection clause Art III Section 10 of the WVa Constltltlon The Court stated tJ1at It would look to whether the classlflcatlon was rational and based on social economIc historic or geographic factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally
9
000011
wiUlam Crawford JON 2014016722
The claimant argued that he was a member of a class of Incarcerated prisoners In which all persons are not treated equally Some of these workers are mandated to receive workers compensation and others are not The dlfferentiaUon between class members had nothing to do with the work performed 8$ he colfld have operated a wood chipper for a private employer Further placement In work Is not a function of anything other than availability of work so It middotIs a matter of chance or fate There was no rational basis on which to diSCriminate betwen Inmates W~rklng for Prison Indmries Working In private employment or working for a state agency The claimant argued that the denial of workers compensation to the claimant under these circumstances does not
_____--advance-LreasonablLgoveOlmemal--Dteresl_[bLretnedieLavallable_Jo_prlvaleyen-y--shyemployed inmates and state employed Inmates are different In that privately employ Inmet are coverd by workers CQmpensatl~n whereas those employed by a _e middotagencyrenot The onlymiddot remedy for astate employed InmatemiddotJsmiddota claim-under 42U$C 1983 for cruel and unusual punishment but this claim rqulres proof of deliberate jndlmrence middotto the hazard aOd this burden of proof Is eXtremely dlfllculttb meet Thus there are substantial dltterences In the remedies available to Inmates injured middoton the Job The ~almant also noted that Inmates engaged In work for the state re paid very low wag and had he been empfoyed by a PriVate employer he would have had benefit of workers compensation coverage
28 The employer filed a closing argument dated August 21 2014 Th employer argued that the ofalm was properly rejected because the clalmamiddotnl did not suffer an Injury In the course of and Ii result middotof covered employment The employer argued that the claimant was not an emplQyeeentiUed to workers compenSation ~ntlts Th employer noted ~hBt the Qlalrnant wa~ In~arcetated at the time of the Injury He was working on March 28 2013 on Corridor G for the Department of Highways when his hand was caught In a wood chipper He was nated at CAMe and his medical bills were paid by ttl Department of Corrections The employer felt that the circumstances of how the claimant became Injured were Irrelevant to compensability The employer stated that there was flO dispute that the claimant was performhig $8rvlces for DOH as part of his connnement at the Charleston Work Release Center He signed an agreement on November 27 2012 whkh was subject to a Contract for Placement at amiddot Work Release Center that he also signed His dUties with DOH were contingent on hlsmiddotContract for Placement on Road Crew or communitY Crew whIoh he signed on November 27 2012 The employer argued that according to documents raled to the agreement between the Department of Corrections and DOH Corrections would provide DOH with Inmates to perform dUUes for pOH The agreement outlined the terms and canditi~ related to the use of Inmate services and the compensation that Corrections would receive on behalf of the Inmates The agreement provided that the Inmates p$rforrrdog servfc~ under this agreement will not be employees of the State entitling them to any benefits such employees might have including but not limited to Insurance worker compensation benefits pensions sick and annual leaveII
The employer argued that the only wayan Inmate would be entiHed to workers compensation benefitS Is pursuant to placement In a program established under WVa Code sect25-7-14 or sect25-7-16 which apply to programs estabUshed to the federal Prison
10
000012
William Crawford JON 2014016722
Industry Enhancement (PIE) Certification Program The evidence shows that to date no such programs have ever existed and no DOCDOH road crew program Ie part of PIE
The employer argued that WVa Code sect23-2-1deflnea employer and sect 2~2-1a defines aemployeeD The employer argued that the claimant Is barred from receiving workers compensation benefits due to his status as an Incarcerated individual at the time of his injury because WVa Code sect23-4-1eb) provides that I[n)otwlthstandlng any provislcm of this code to the contrary no person confined hi a state correctional facility
____-----Dr_JaILwbo-suffersJnJWyen--DudlseaseJnJbeMursUlLand1uuJtlng1mmltlsoLhe( w~ork_____ during the period of confinement whiCh work Is Imposed by the ~dmlnlstratlon of the state correctional facility or Jail and is not suffered during the persons usual employment with his or her usUal employer when not conftnedshall receive benem under the provisions of thl~ chapter for the injury or d~ease
The employer argued that the code 8peclfie$ that an Inmate Is not entitled to workers compenSation If Injured while completing work imposed by the administration ofthe state correctional facility or jail However had he been working in a PIE program he would hav~ been enHtled to workers cC)mpensation beneflts The employer argued that tbe claimants closing argument confirmed this finding- but he argues that his constitutional rights have been violated In response the employer argued th~t the PIE program flowed out of federal leglslatlcm and (hat the clear and rational basis for the requirement that private employers provide workers compensation ooverage for Inmate employees under the Pie program is 80 no unfair advantage la given to the private employer
The employer argued that the olaimants constitutional argument falla and that his only recourse Is to petition the legislature for a change In the current law However the employer argued that any determination by the Court that all Inmates are entitled to workers compensation benefits would slgnlJlcantIy ImpaCt the states budget
29 The claimant flied a Reply to Closing Argument and Exhibits dated August 26 2014 The claimant clarified that his argument based upon the PIE program was based upon the employers affidavit Indicating that program Is dormant He stated that even If the PIE program had remained dormant this did not mean that Inmates were only empioyed by DOH and that statements by the Director of Division of Corrections and the Governors BUdget document clearly state that Inmates are employed In the private sector The claimant attached Exhibit A to this filing and he stated that In this attachment Mr Rubenstein stated that the majority of Inmates -e empoyed In fast food industry and restaurants The claimant again argued that there was a dlaparate treatment between inmates who work for the Department of transportation and those In any kind of private employment and this was a violation of the Canstltudan
30 The employer filed a Response to Closing Argument and exhibits dated September 9 2014 The employer argued that the claimants reply was submitted on
11
000013
WIUlam Crawford JCN 2014016722
August 26 2014 which was filed after the ten day prlod for case summation pursuant to WVa CSR sect 93~1-65 since the time frame expired on August 11 2014
The employer stated that the provlslons of Article 7 of Chapter 25 of the West Virginia Code were drafted to comply with 18 USC sect 1161 (c) the PIE program The federal legislation allOWS state andmiddot local prisons to be exempt from federal restrictions on prisoner-made goods entering Inte_te commerce and allOWS private individuals tn some clrcumst~mces to hire Inmates for production of goods However the Inmates must be paid similar wages 80 as not to allow a private Industry to obtilhlan unfair
------_advantagacomparecUO-the-prlva~sector~-ThaemployJtr--8tatedJbaUmgatiorLl8gamlng_______ 18 OSC sect 1761(0) Is cleaithal Its purpose Is to protect private businesses and that It was not enacted to protect Inmate workers The ernp~oyer cited McMaster v Minnesota 30 F3d 9679811994 US App Lexls 1861816 (8middot CIr Minn 1994)
31 The employer flied a Seoond Closing Argument ~ated MarQh 162015 The employer stated that the Issue was whether the claimant was entitled to receive workers compensation benems after sustainIng an injury while working for DIVIsion of HlghwaY$ on a work crew from the Chal1stQn Work Release Center The employer noted that the claimant signed a Maser Furlough Agreement on November 27 2012 He also signed a Contract for Placement at a Work Release Center His duties WIth DOH were contingent on a Contract for Placement on Road Crew or Community Crew which he signed on November 272012
The employer noted that there were agreements between Department of Corrections and Division of Highways regarding Inmate servk Neither DOH nor DOC conSidered the Inmate workers fo be employees and the contract stated that they were not employees of the State and not entitled to employee benefits Including degworker compens~lljon
The employer argued that the only conditions under which an Inmate is entitled to workers compensation benefits Is if he were placed In a Prison Industry Enhancement (PIE) Certification Program under WVa Codmiddote sect 25-7-14 or sect25-7-16 Ther have never been any PIE programs In West Virginia and so the claimant was not part of this program
The employer responded to the claimants argument that inmates employed in the private sector outside the PIE program and they are coved by workers compensation and thus the noncoverage for inmates such as the claimant Is unconstitutional The employer argued that Ms Slack testified that Correctional Industries operates about 17 production shops In which inmates work Some Inmates from the Charleston Work Release Center assist but none of the (nmates receive benefits Mr stinnett administrator of the Charleston Work Release Centertestlfled that there were criteria for Inmates to be placed at the Work Release Center and there was a running list of Inmates who desired placement When a bed opened an Inmate Is placed there He stated that about 45 Inmates work In private Industry rather than with
12
000014
William Crawford JCN 2014016722
the State The C~nter attempted to get private Jobs for inmates who would ultimately be released In Charleston so that they can continue to work when reJeased
The employer argued that the clalm_nt was barred from receiving workers compensation duetohts Incarceration at the time of his inJury pursuant to WVa Code sect23-4-1e The employer noted that PIE program Inmates are provided coverage by the private employer and that the purpose of this was to Implement federal regulations and protect private businesses from unfair competition Thus there is a clear and rational basis for dlff8f~mces between Inmates wC)fklng for private employers In a PIE program
32 The claimant filed a Supplemental Closing Argument dated March 20 2015 The claimant argued that the statutory framework regarding work- rajease and the provision of beneflt$ and the Implementation of the statute by the Department of Corrections violates the equal protection clause The claimant argued that not only do Inmates who woUld work under the PIE program Of ever Imptemerited) receive workers comperl$ation ~enet1ts but those who are released to work in the private sector receive workers compensation and other benefits The claImant argued that those who work for Department of Highways do not relieve the ame benfllsas those similrly situated Inmates whQ work In private sector jobs and this is discrimination with no reasonabie basis
33 Counsel for the claimant and the employer presented closing arguments at a hearlng on May 5 2015 Cou for the claimant _ated that the Issue was oompensabllityfor an Inmate Who Injured his hand while working for a Division of Highways crew while at a Work Release Center Counsel for the claimant cited State ex ret Boan VS Richardson 482 SE 2d 162 ~Va 1966) IInd argued that the SUpreme Court of Appeals ruled that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In slmUar circumstances and that any suqh statute violates the equal protectlcm clause Art IU SeCtion 10 of the WVa Constitution Counsel stated that had the claimant worked for a private employer he would have been covered j)y workers compensation There are no rules or regulaUons governing whether an Inmate works for DOH or a private employer Thus there Is no rational basiS for how they are assigned Underbn the elaimant argued he has been wrongfully dlscrfmlnated against
The employer stated that the claimant was barred frQm receiving workers compensatlc)O WVa Code sect23-4-1e(b) He was an Inmate subject to confinement and was not In a PIE program which Is an exception The participant Inmates are stUI Incarcerated While In the Work Release program The OOJ has no authority to decide the statute Is Constitutional The claimants remedy Is to convince the state legislature to change the statute Counsel for the employer stated that his mecilcal bills were covred by Department of Corrections Counsel argued that the OOJ must affirm the Order Counsel Indicated that once paroled the claimant was not eligible for further medIcal treatment to be paid by Department of Corrections
13
000015
William Crawford JCN 2014016722
DISCUSSION
This case Is before the OffIce of Judges based on a protest to the Order regarding tbe compensElbllltyof the claim W- Virgins Code -523-4-1 provides for benefits to employees who receive an Injury In the course of and as a result of their covered employment The more preci$e $Sue presented hre Is whether the claimant Is entitled to benefits for an InjJJry he received while he waS an inmate working on a crew pursuant to agreements between himselfi the Department of corrections and DMslon of Highways
i ---------------------------------------------------------------------~-
W Va Code sect23-4-1 9 provides that for all awards made on and after July 1 I 2003 the resolution of any Issue shall be ba~ upon a weighing of atl evldenoe pertelnlng -lothe Issue and a finding that8 preponderance of themiddot evidence supportsmiddot the chosen manner of resolution The process of weighing evld~nce $hall include ~ut not be limited to an assessmei1t of the r~lecC credlblRty materiality and rellabllty that the evidence possesses In the context of the Issue presented No Issue may be resolved by allOWing certain evidence to be diSpositive Simply because It Is reflable and Is mosJ favor-ble to a partys Intrests or position The resolution of Issues n claims for compensation must be decided on the merits and not according to any prinCiple that requir statut governing workers ~ompeJS~lon to be Ilb~rally conStrued because th~V are remedialili natute If after weighing all of the evidence regarding an Issue there Is a finding that an equal amount of evidentiary weight ~$ for each side the resoltiQcm that is most con$lstent With the claUnant$ position Will be adopted
Preponderence of the evldenQe means proof that $omethlng Is more likely 80 thail nbt ~o In other words a preponderance Of the evidence means such evidence when considered and compared with opposing evidence Is more pe~uaslve or convincing Pre~nderance of the evidence may not be determined by merely counting the number of witnesses reports evaluations or other items of evidence Rathermiddotft Is datennlned by assessing the persaslven8$Sof the evidence Includlng the opportUnity for knowledge Information possessed and manner of testifying or reporting
While working on a highway crew on March 282013 the claiment badly Injured his hand In a wood chipper While there are some variances In the claimants statements compared to witneamp$ statements about the particulars of the InJury none of those differences would change the outcome of this Decision and thus are not relevant to the discussion There Is no dispute that the claimant was Injured as a result of his work on the road crew while he was an inmate at the Charleston Work Release Centr His inJuries fe$ulted In surgery and hospitalization at CAMC where his medical bills In e)(cees of $90000 were paId by the Department of Corrections He was paroled soon after he was released from the hospital
The claim was rejected by an Order dated November 15 2013 which denied the application for benefits as it was determined that he did not sustain an Injury In the course of and resulting from his employment The claim administrators Investigation
14
000016
WilHam Crawford JON 2014016722
Inmates and that they must pay them the same wages non-Inmate workers and they must provide workers compensation coverage for them (See deposition of Jeff stinnett Administrator of the Charleston Work Release Center dated February 5 2015) Most of the private employment of Inmates 18 In fast food reurants grocery stores and factorieS Bobby WIlliams a case manager at the Charleston Work Release Center testified on March 31 2015 that he talked tolnmat~ to see If they wanted to work on a DOH crew He said that to m It made sense to place inmates In posiUons In the community In which they would be released The claimant was to be paroled to Hardy County which Is not within a driving distance to Charleston
The claimant argued that there were no rules or regJlations that would determine -shywhether an Inmate was placed In a private companymiddot or with DOH However this placement- would middotdetermln their fate If -they were InJured While on work refeaee Counsel for the claimant argued that this disparate treatment was discriminatory Counsel cited the West Virginia Supreme Court of Appeals holding In State ex ret Boan YS RlcIDardson 482 se 2d 162 ~va 1966) In which the court held that a workers compensation statute atfeQtlng economic rights may not be used to discriminate among a class of In~lvl~uals In similar circumstances and that any such statute violates the equal protection clause Art IU Section 10 of ttle WVa Constitution The Court stated that ~ would look to whe~her the classffication was rational and Qbased on socliil economic historic or geographIc factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally Id at 164 The claimant argued that he was a inmbar of Incarcerated prisoners in Which all persons weranot treated equally In that some qualified for workers compensation coverage and others did not
There Is no disagreement In this case that W Va Code sect23-4-1e(b) bars the claimant frC)O1 r~elpt of workers compensation benefltB The claimant argues that this law Is unconstltutlonal The Offlce of Judges Is not an Article III Court and does not have jurisdiction to rule a sttule is unconstitutional Therefore itmiddot1S found that the Order properly rejected the claim pursuant to W Va Code sect23-41e(b)
CONCWSlONS OF LAW
Pursuant to W Va Code sect23-4-1e(b) the claimant is ineligible to receive workers compensation benefits fer an Injury he received while In a Work Release Center performing work for Division of Highways In accordance With agreements with Department of Corrections
It Is therefore ORDERED that the Claim Administrators Order dated November 152013 be AFFIRMED
16
000017
William Crawford JON 2014016722
APPEAL RIGHTS
Under the provisions of WVa Code sect23-5-12 any aggrieved party may file a written appeal wlthlnthJrty (30) days after receipt of any decision or action of the Administrative Law Judge The appeal shall be filed ~Irectly with the Workrs Compensation Board of Review at PO Box 2828 Cha~eston WV 263~9
Date July 6bull 2015
RibcCca S CharI Administrative Law ludp
RSCQtc
cc WILUAM F CRAWFORD JOHN HENRY SKAGGS -COUNSEL FOR CLAIMANT DEPT OF CORRECTIONS-WORK RELEASE LISA WARNER HUNTER - COUNSEL FOR EMPLOYER AMERiCAN ZURICH INS CO
17
000018
William Crawford JCN 2014016722
JCN
Date
2014016722
July 6 2015
ReconJ Considered
The Clalmanfs protest to the Claims Administrators order Of regarding REJECTION OF CLAIM
November 15 2013
EVIDENCE SUBMITTED
Claimant Evidence
Document Type Not Specified Document Date 11112000 Submit Date 6Q012014 Author EMPlOYERICLAIMANT - WORK AGREEMENT
DoaIment Type NotSpepified Document Date 1112OQ4 Submit Date 612012014 Author WV DIVISIONS OF CORRECTIONS - POUCY
OIRECnVE
Document Type Not Specified Document Date 41112006 Submit Date 612012014 Author CHIPPERISHREDOER SAFElY - K-STATE
ARTICLE
Document Type Oocum~nt Dale Submit Date
Not Specified 41612008 612012014
18
000019
Willism Crawford JON 2014016722
Author HAZARDS OF WOOD CHIPPERS - OSHAOOV
Document Type Not-Specified Document Date 7112010 Submit Date 812612014 Author DIVISION OF CORRECTIONS-2010 EXECUTIVE BUDGET
STATEMENT
Document Type Not Specified-----DocumenrDste=------r71t212010----------------------- ----
Submit Date 812612014 Author NEWSPAPER ARTICLE~DEPTOF CORR~CTIONS
Document Type NotSpecified Oocument Date 412612012 Submit 08te612012014 Author CONVICT WORKFoRCE AGREEMENT
Document Type -Not Specifted Document pate 4I26J2012 Submit Date 812012014 Author CLAIMANT - CONTRACT FOR PLACEMENT
Document Type NotSpeCified [)(lcument Date 1112612012 Submit Date 1123i2014 Author WORK RELEASE RECORD (111261122-19-13)
Document Type Not Speclfjed Document Date 1112712012 Submit Date 112312014 Author CONTRACTIPLACEMENT ON ROADCOMMUNITV
CREW
Document Type Not Specified Document Date 312812013 Submit Date 112312014 Author DUTY OFFICER REPORT
Document Type Not Specified Document Date 32812013 Submit Date 1232014 Author INCIDENT REPORT WITH ATTACHED MEDICATION
FORMS
19
000020
William Crawford JCN2014016722
Document Type Not Specified Document Dale 4412013 Submit Date 112312014 Author WILLIAM CRAWFO~D ~ STATEMENT
Document Type Not Specified DocUment Dale 412512013 Submit Date 611912014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 121102013 Submit Date 1l23t014 Aulhor CLAIMANTS DEPT OF CORRECTIONS FILE
Document Type Not Specified Document Date 12312014 Submit Date 112312014 Author CLAIMANT - CONTRACT PLACEMENTIWORK RELEASE
CENTER-UNDATED
Document Type NotSpeclfied Document De 113112014 Submit Date 2412014 Author EMPLOYER INTERROGATORIES
Document Type Not Specified Document Date 62312014 Submit Date 012312014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 12118204 Submit Date 11412015 Author BETIY SLACKmiddot DEPOSITION
Document Type Not Specified Document Date 21512015 Submit Date 212612015 Author JEFF STINNETTmiddot DEPOSITION WIEXHIBiTS
Document Type Not Specified Document Date 313112015 Submit Date 412212015 Author BOBBY WILUAMS - DEPOSITION
20
000021
JCN 2014016722WlUlam Crawford
Emglgyer Evid8DC8
Document Type Npt Specified ------f)ocumentDate--tlf2mo2-------------------- shy
$lIbmiiOate 73112014 Author WORK RELEASE STATUS MASTER FURLOUGH
AGREEMENT
Document Type Not Sp~lfied Document Date 312812013 Submit Date 713112014 Author OFFICE OF WV AUDITORmiddot FINANCIAL INFO MANAGEMENT
SYSTEM INVOICE SHEETS
Document Type Not Specified Document Date 312812013 Subinlt Date 713112014 Author DARRELL SIGMON - STATEMENT
Document Type Not Specified Document Date 31282013 Submit Date 713112014 Author ROCKY pARSONSmiddot STATEMENT
D~umentType Not Specified Document Date 612312014 Submit Date 713112014 Author BETTY SLACKmiddot AFFIDAVIT
CLOSING ARGUMENTS
21
000022
WillIam Crawford
PalY Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted tettE3FDate Party Submitted Letter Date
Right Is one place Inmates go If they need health oare Which Is billed on a sliding scale and many times is free for the Inmates
26 The claimant submitted a transcript of the deposition of Bobby Williams dated March 31 2015 At the beginning of the dep)$IUon cQunsel for the employer placed on the record an objection to the request for an e)(tenalon of time frame filed by claimants counsel The employer did nCit object to the deposition but did object to the extenslon for the purposes of keeping open the reoord In the protest Mr Williams sttedthat he was employed at the Charleston Work Release Center as a case manager and he Is the em~ment coordinator His duties Include assisting Inmates with parole paperwork and helping them look for work He stated that he recalled the claimant and that he was in an accident He stated that inmates were responslbte for seeking private employment He said he would talk to the inmates and ask If they wanted to work for Highways on a road crew He would look to see where the InmateS WOuld be released and ir It would be In the Charleston area It made $8nse to have them work In the commul1lty He stated that he was not aware of any other residents at his facility that were Injured while working for DOH He stated that he could not recall whether the claimant asked to work for DOH Mr Williams was aware that the claimant was to be paroled to Har~y County which is not within a driving distance for work In Charleston He said that sometimes they transfer Inmates to a work release center closer to where they will be paroled~
27 The claimant filed a clOsing arg~ment dated July 11 2014 The claimant argued that he was entHled to WQrk~rs compensation beneflt$ for an injury IIe received while he was In a prison work release program involving the Department of Highways (DOHiI) The claimant stated that he was seMog a period of confinement at the Charleston Work Release Center and was working for the DOH pursuant to a WQrk release agreement when he was Injured on March 28 2013 He stated that his hand was caught In a wood chipper and was mangled He was treat~d at CAMe where his medical 1)111 Were In excess of $90000 and were paid by the Department of Corrections The claimant said he partfallyamputated fingers of his left hand
Counsel for the clilmant stated that he hid not been ible to Identify the rules and regulations that applied to the Interagency employment of inmates He had found a policy dated August 12013 which postdated the claimants Injury and a work agreement that also postdated the Injury However a January 1 2004 poUcy was In effect at the time It governed the management of Inmate work crews for DOH and stated that In the event of a serious injury an Inmate was to be taken to an emergency room Further the policy Indicated that work release Inmates would have occa$lon to work In situations that may result in aCCidents and may require safety eqUipment There was also an agreement between Corrections and DOH dated April 26 2012 which stated the obligations of each agency for Inmate work crews This agreement provided for training by Corrections for the inmates to learn to safely operate ohalnsaws Further inmates were to be paid $450 per hour The claimant signed an agreement for work release when he was at Pruntytown
a
000010
WiUiam Crawford JCN 2014016722
Counsel noted that WVa Code sect23-4-1e(b) states
(b) Notwithstanding any provision of this code to the contrary no person confined in a state correctional f~iI~y or jail who suffers Injury or a disease In the eour$e of and resulting from his or her work during the period of confinement which work Is imposed by the admlntration of the state correctional facility or Jail and IS not suffered during the persons usual employment with his or her usual eMployer when not confined shall receive benefits under the provisions of this chapter for the InJUry or disease ProVIded That individuals otherwise QOIlftned In a state correctional facility or JaU or at a Juvenile services facility IInd working In a program authorized by sections fourteen or sixteen of article sevenchapter twenty-five of this code shall be eligible to receive benefits under the prov~Jons of this chapter while working In an authorized program The coverage for benefits may be obtained either by the prtvate entity or by agreernentwJth the state agency as specified In subsection (5) subsection (a) of sections fourteen and sixteen of artlc1e sevenchapter twenty-five of this code
Counsel also noted that WVa Code sect23-4-1e(b) referenced sect125-7-14 and 25shy7-16 which relate to a Prison Industry Enhancement (PIE) CertlflcIQn middotProgram Thus counsel said that there were two situatIons In whIch an Inmate is eligible for workersmiddot compensation benefits - working for PrISon Industries and working in the private sector pn work release The clamant argued thet there was no rational baels to discriminate betWeen prisoner classifications regarding workers compensation benefits The claimant was performing work that was of such nature that he could have done for a private employer He argued that there was no significant difference In status between the claimant and an inmate working for Prison Industries or placed in priVlllte employment who Is covered by workers compensation
Counsel noted significant differences between the 2012 agreement and earlier agreement$ The 2012 agreement provides that Inmates shall not operate equIpment larger than a riding lawn mower Further Inmates are not to use cnalnsaws WIthout special training Counsel argued that the hazardousness of operaUg wood Chippers Is shown In publications by OSHA
Citing state ex reI Boan vs Richardson 482 SE 2d 162 foNVa 1986) counsel argued that the Supreme Court of Appeals has held that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In similar circumstances and that any such statute violates the equal protection clause Art III Section 10 of the WVa Constltltlon The Court stated tJ1at It would look to whether the classlflcatlon was rational and based on social economIc historic or geographic factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally
9
000011
wiUlam Crawford JON 2014016722
The claimant argued that he was a member of a class of Incarcerated prisoners In which all persons are not treated equally Some of these workers are mandated to receive workers compensation and others are not The dlfferentiaUon between class members had nothing to do with the work performed 8$ he colfld have operated a wood chipper for a private employer Further placement In work Is not a function of anything other than availability of work so It middotIs a matter of chance or fate There was no rational basis on which to diSCriminate betwen Inmates W~rklng for Prison Indmries Working In private employment or working for a state agency The claimant argued that the denial of workers compensation to the claimant under these circumstances does not
_____--advance-LreasonablLgoveOlmemal--Dteresl_[bLretnedieLavallable_Jo_prlvaleyen-y--shyemployed inmates and state employed Inmates are different In that privately employ Inmet are coverd by workers CQmpensatl~n whereas those employed by a _e middotagencyrenot The onlymiddot remedy for astate employed InmatemiddotJsmiddota claim-under 42U$C 1983 for cruel and unusual punishment but this claim rqulres proof of deliberate jndlmrence middotto the hazard aOd this burden of proof Is eXtremely dlfllculttb meet Thus there are substantial dltterences In the remedies available to Inmates injured middoton the Job The ~almant also noted that Inmates engaged In work for the state re paid very low wag and had he been empfoyed by a PriVate employer he would have had benefit of workers compensation coverage
28 The employer filed a closing argument dated August 21 2014 Th employer argued that the ofalm was properly rejected because the clalmamiddotnl did not suffer an Injury In the course of and Ii result middotof covered employment The employer argued that the claimant was not an emplQyeeentiUed to workers compenSation ~ntlts Th employer noted ~hBt the Qlalrnant wa~ In~arcetated at the time of the Injury He was working on March 28 2013 on Corridor G for the Department of Highways when his hand was caught In a wood chipper He was nated at CAMe and his medical bills were paid by ttl Department of Corrections The employer felt that the circumstances of how the claimant became Injured were Irrelevant to compensability The employer stated that there was flO dispute that the claimant was performhig $8rvlces for DOH as part of his connnement at the Charleston Work Release Center He signed an agreement on November 27 2012 whkh was subject to a Contract for Placement at amiddot Work Release Center that he also signed His dUties with DOH were contingent on hlsmiddotContract for Placement on Road Crew or communitY Crew whIoh he signed on November 27 2012 The employer argued that according to documents raled to the agreement between the Department of Corrections and DOH Corrections would provide DOH with Inmates to perform dUUes for pOH The agreement outlined the terms and canditi~ related to the use of Inmate services and the compensation that Corrections would receive on behalf of the Inmates The agreement provided that the Inmates p$rforrrdog servfc~ under this agreement will not be employees of the State entitling them to any benefits such employees might have including but not limited to Insurance worker compensation benefits pensions sick and annual leaveII
The employer argued that the only wayan Inmate would be entiHed to workers compensation benefitS Is pursuant to placement In a program established under WVa Code sect25-7-14 or sect25-7-16 which apply to programs estabUshed to the federal Prison
10
000012
William Crawford JON 2014016722
Industry Enhancement (PIE) Certification Program The evidence shows that to date no such programs have ever existed and no DOCDOH road crew program Ie part of PIE
The employer argued that WVa Code sect23-2-1deflnea employer and sect 2~2-1a defines aemployeeD The employer argued that the claimant Is barred from receiving workers compensation benefits due to his status as an Incarcerated individual at the time of his injury because WVa Code sect23-4-1eb) provides that I[n)otwlthstandlng any provislcm of this code to the contrary no person confined hi a state correctional facility
____-----Dr_JaILwbo-suffersJnJWyen--DudlseaseJnJbeMursUlLand1uuJtlng1mmltlsoLhe( w~ork_____ during the period of confinement whiCh work Is Imposed by the ~dmlnlstratlon of the state correctional facility or Jail and is not suffered during the persons usual employment with his or her usUal employer when not conftnedshall receive benem under the provisions of thl~ chapter for the injury or d~ease
The employer argued that the code 8peclfie$ that an Inmate Is not entitled to workers compenSation If Injured while completing work imposed by the administration ofthe state correctional facility or jail However had he been working in a PIE program he would hav~ been enHtled to workers cC)mpensation beneflts The employer argued that tbe claimants closing argument confirmed this finding- but he argues that his constitutional rights have been violated In response the employer argued th~t the PIE program flowed out of federal leglslatlcm and (hat the clear and rational basis for the requirement that private employers provide workers compensation ooverage for Inmate employees under the Pie program is 80 no unfair advantage la given to the private employer
The employer argued that the olaimants constitutional argument falla and that his only recourse Is to petition the legislature for a change In the current law However the employer argued that any determination by the Court that all Inmates are entitled to workers compensation benefits would slgnlJlcantIy ImpaCt the states budget
29 The claimant flied a Reply to Closing Argument and Exhibits dated August 26 2014 The claimant clarified that his argument based upon the PIE program was based upon the employers affidavit Indicating that program Is dormant He stated that even If the PIE program had remained dormant this did not mean that Inmates were only empioyed by DOH and that statements by the Director of Division of Corrections and the Governors BUdget document clearly state that Inmates are employed In the private sector The claimant attached Exhibit A to this filing and he stated that In this attachment Mr Rubenstein stated that the majority of Inmates -e empoyed In fast food industry and restaurants The claimant again argued that there was a dlaparate treatment between inmates who work for the Department of transportation and those In any kind of private employment and this was a violation of the Canstltudan
30 The employer filed a Response to Closing Argument and exhibits dated September 9 2014 The employer argued that the claimants reply was submitted on
11
000013
WIUlam Crawford JCN 2014016722
August 26 2014 which was filed after the ten day prlod for case summation pursuant to WVa CSR sect 93~1-65 since the time frame expired on August 11 2014
The employer stated that the provlslons of Article 7 of Chapter 25 of the West Virginia Code were drafted to comply with 18 USC sect 1161 (c) the PIE program The federal legislation allOWS state andmiddot local prisons to be exempt from federal restrictions on prisoner-made goods entering Inte_te commerce and allOWS private individuals tn some clrcumst~mces to hire Inmates for production of goods However the Inmates must be paid similar wages 80 as not to allow a private Industry to obtilhlan unfair
------_advantagacomparecUO-the-prlva~sector~-ThaemployJtr--8tatedJbaUmgatiorLl8gamlng_______ 18 OSC sect 1761(0) Is cleaithal Its purpose Is to protect private businesses and that It was not enacted to protect Inmate workers The ernp~oyer cited McMaster v Minnesota 30 F3d 9679811994 US App Lexls 1861816 (8middot CIr Minn 1994)
31 The employer flied a Seoond Closing Argument ~ated MarQh 162015 The employer stated that the Issue was whether the claimant was entitled to receive workers compensation benems after sustainIng an injury while working for DIVIsion of HlghwaY$ on a work crew from the Chal1stQn Work Release Center The employer noted that the claimant signed a Maser Furlough Agreement on November 27 2012 He also signed a Contract for Placement at a Work Release Center His duties WIth DOH were contingent on a Contract for Placement on Road Crew or Community Crew which he signed on November 272012
The employer noted that there were agreements between Department of Corrections and Division of Highways regarding Inmate servk Neither DOH nor DOC conSidered the Inmate workers fo be employees and the contract stated that they were not employees of the State and not entitled to employee benefits Including degworker compens~lljon
The employer argued that the only conditions under which an Inmate is entitled to workers compensation benefits Is if he were placed In a Prison Industry Enhancement (PIE) Certification Program under WVa Codmiddote sect 25-7-14 or sect25-7-16 Ther have never been any PIE programs In West Virginia and so the claimant was not part of this program
The employer responded to the claimants argument that inmates employed in the private sector outside the PIE program and they are coved by workers compensation and thus the noncoverage for inmates such as the claimant Is unconstitutional The employer argued that Ms Slack testified that Correctional Industries operates about 17 production shops In which inmates work Some Inmates from the Charleston Work Release Center assist but none of the (nmates receive benefits Mr stinnett administrator of the Charleston Work Release Centertestlfled that there were criteria for Inmates to be placed at the Work Release Center and there was a running list of Inmates who desired placement When a bed opened an Inmate Is placed there He stated that about 45 Inmates work In private Industry rather than with
12
000014
William Crawford JCN 2014016722
the State The C~nter attempted to get private Jobs for inmates who would ultimately be released In Charleston so that they can continue to work when reJeased
The employer argued that the clalm_nt was barred from receiving workers compensation duetohts Incarceration at the time of his inJury pursuant to WVa Code sect23-4-1e The employer noted that PIE program Inmates are provided coverage by the private employer and that the purpose of this was to Implement federal regulations and protect private businesses from unfair competition Thus there is a clear and rational basis for dlff8f~mces between Inmates wC)fklng for private employers In a PIE program
32 The claimant filed a Supplemental Closing Argument dated March 20 2015 The claimant argued that the statutory framework regarding work- rajease and the provision of beneflt$ and the Implementation of the statute by the Department of Corrections violates the equal protection clause The claimant argued that not only do Inmates who woUld work under the PIE program Of ever Imptemerited) receive workers comperl$ation ~enet1ts but those who are released to work in the private sector receive workers compensation and other benefits The claImant argued that those who work for Department of Highways do not relieve the ame benfllsas those similrly situated Inmates whQ work In private sector jobs and this is discrimination with no reasonabie basis
33 Counsel for the claimant and the employer presented closing arguments at a hearlng on May 5 2015 Cou for the claimant _ated that the Issue was oompensabllityfor an Inmate Who Injured his hand while working for a Division of Highways crew while at a Work Release Center Counsel for the claimant cited State ex ret Boan VS Richardson 482 SE 2d 162 ~Va 1966) IInd argued that the SUpreme Court of Appeals ruled that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In slmUar circumstances and that any suqh statute violates the equal protectlcm clause Art IU SeCtion 10 of the WVa Constitution Counsel stated that had the claimant worked for a private employer he would have been covered j)y workers compensation There are no rules or regulaUons governing whether an Inmate works for DOH or a private employer Thus there Is no rational basiS for how they are assigned Underbn the elaimant argued he has been wrongfully dlscrfmlnated against
The employer stated that the claimant was barred frQm receiving workers compensatlc)O WVa Code sect23-4-1e(b) He was an Inmate subject to confinement and was not In a PIE program which Is an exception The participant Inmates are stUI Incarcerated While In the Work Release program The OOJ has no authority to decide the statute Is Constitutional The claimants remedy Is to convince the state legislature to change the statute Counsel for the employer stated that his mecilcal bills were covred by Department of Corrections Counsel argued that the OOJ must affirm the Order Counsel Indicated that once paroled the claimant was not eligible for further medIcal treatment to be paid by Department of Corrections
13
000015
William Crawford JCN 2014016722
DISCUSSION
This case Is before the OffIce of Judges based on a protest to the Order regarding tbe compensElbllltyof the claim W- Virgins Code -523-4-1 provides for benefits to employees who receive an Injury In the course of and as a result of their covered employment The more preci$e $Sue presented hre Is whether the claimant Is entitled to benefits for an InjJJry he received while he waS an inmate working on a crew pursuant to agreements between himselfi the Department of corrections and DMslon of Highways
i ---------------------------------------------------------------------~-
W Va Code sect23-4-1 9 provides that for all awards made on and after July 1 I 2003 the resolution of any Issue shall be ba~ upon a weighing of atl evldenoe pertelnlng -lothe Issue and a finding that8 preponderance of themiddot evidence supportsmiddot the chosen manner of resolution The process of weighing evld~nce $hall include ~ut not be limited to an assessmei1t of the r~lecC credlblRty materiality and rellabllty that the evidence possesses In the context of the Issue presented No Issue may be resolved by allOWing certain evidence to be diSpositive Simply because It Is reflable and Is mosJ favor-ble to a partys Intrests or position The resolution of Issues n claims for compensation must be decided on the merits and not according to any prinCiple that requir statut governing workers ~ompeJS~lon to be Ilb~rally conStrued because th~V are remedialili natute If after weighing all of the evidence regarding an Issue there Is a finding that an equal amount of evidentiary weight ~$ for each side the resoltiQcm that is most con$lstent With the claUnant$ position Will be adopted
Preponderence of the evldenQe means proof that $omethlng Is more likely 80 thail nbt ~o In other words a preponderance Of the evidence means such evidence when considered and compared with opposing evidence Is more pe~uaslve or convincing Pre~nderance of the evidence may not be determined by merely counting the number of witnesses reports evaluations or other items of evidence Rathermiddotft Is datennlned by assessing the persaslven8$Sof the evidence Includlng the opportUnity for knowledge Information possessed and manner of testifying or reporting
While working on a highway crew on March 282013 the claiment badly Injured his hand In a wood chipper While there are some variances In the claimants statements compared to witneamp$ statements about the particulars of the InJury none of those differences would change the outcome of this Decision and thus are not relevant to the discussion There Is no dispute that the claimant was Injured as a result of his work on the road crew while he was an inmate at the Charleston Work Release Centr His inJuries fe$ulted In surgery and hospitalization at CAMC where his medical bills In e)(cees of $90000 were paId by the Department of Corrections He was paroled soon after he was released from the hospital
The claim was rejected by an Order dated November 15 2013 which denied the application for benefits as it was determined that he did not sustain an Injury In the course of and resulting from his employment The claim administrators Investigation
14
000016
WilHam Crawford JON 2014016722
Inmates and that they must pay them the same wages non-Inmate workers and they must provide workers compensation coverage for them (See deposition of Jeff stinnett Administrator of the Charleston Work Release Center dated February 5 2015) Most of the private employment of Inmates 18 In fast food reurants grocery stores and factorieS Bobby WIlliams a case manager at the Charleston Work Release Center testified on March 31 2015 that he talked tolnmat~ to see If they wanted to work on a DOH crew He said that to m It made sense to place inmates In posiUons In the community In which they would be released The claimant was to be paroled to Hardy County which Is not within a driving distance to Charleston
The claimant argued that there were no rules or regJlations that would determine -shywhether an Inmate was placed In a private companymiddot or with DOH However this placement- would middotdetermln their fate If -they were InJured While on work refeaee Counsel for the claimant argued that this disparate treatment was discriminatory Counsel cited the West Virginia Supreme Court of Appeals holding In State ex ret Boan YS RlcIDardson 482 se 2d 162 ~va 1966) In which the court held that a workers compensation statute atfeQtlng economic rights may not be used to discriminate among a class of In~lvl~uals In similar circumstances and that any such statute violates the equal protection clause Art IU Section 10 of ttle WVa Constitution The Court stated that ~ would look to whe~her the classffication was rational and Qbased on socliil economic historic or geographIc factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally Id at 164 The claimant argued that he was a inmbar of Incarcerated prisoners in Which all persons weranot treated equally In that some qualified for workers compensation coverage and others did not
There Is no disagreement In this case that W Va Code sect23-4-1e(b) bars the claimant frC)O1 r~elpt of workers compensation benefltB The claimant argues that this law Is unconstltutlonal The Offlce of Judges Is not an Article III Court and does not have jurisdiction to rule a sttule is unconstitutional Therefore itmiddot1S found that the Order properly rejected the claim pursuant to W Va Code sect23-41e(b)
CONCWSlONS OF LAW
Pursuant to W Va Code sect23-4-1e(b) the claimant is ineligible to receive workers compensation benefits fer an Injury he received while In a Work Release Center performing work for Division of Highways In accordance With agreements with Department of Corrections
It Is therefore ORDERED that the Claim Administrators Order dated November 152013 be AFFIRMED
16
000017
William Crawford JON 2014016722
APPEAL RIGHTS
Under the provisions of WVa Code sect23-5-12 any aggrieved party may file a written appeal wlthlnthJrty (30) days after receipt of any decision or action of the Administrative Law Judge The appeal shall be filed ~Irectly with the Workrs Compensation Board of Review at PO Box 2828 Cha~eston WV 263~9
Date July 6bull 2015
RibcCca S CharI Administrative Law ludp
RSCQtc
cc WILUAM F CRAWFORD JOHN HENRY SKAGGS -COUNSEL FOR CLAIMANT DEPT OF CORRECTIONS-WORK RELEASE LISA WARNER HUNTER - COUNSEL FOR EMPLOYER AMERiCAN ZURICH INS CO
17
000018
William Crawford JCN 2014016722
JCN
Date
2014016722
July 6 2015
ReconJ Considered
The Clalmanfs protest to the Claims Administrators order Of regarding REJECTION OF CLAIM
November 15 2013
EVIDENCE SUBMITTED
Claimant Evidence
Document Type Not Specified Document Date 11112000 Submit Date 6Q012014 Author EMPlOYERICLAIMANT - WORK AGREEMENT
DoaIment Type NotSpepified Document Date 1112OQ4 Submit Date 612012014 Author WV DIVISIONS OF CORRECTIONS - POUCY
OIRECnVE
Document Type Not Specified Document Date 41112006 Submit Date 612012014 Author CHIPPERISHREDOER SAFElY - K-STATE
ARTICLE
Document Type Oocum~nt Dale Submit Date
Not Specified 41612008 612012014
18
000019
Willism Crawford JON 2014016722
Author HAZARDS OF WOOD CHIPPERS - OSHAOOV
Document Type Not-Specified Document Date 7112010 Submit Date 812612014 Author DIVISION OF CORRECTIONS-2010 EXECUTIVE BUDGET
STATEMENT
Document Type Not Specified-----DocumenrDste=------r71t212010----------------------- ----
Submit Date 812612014 Author NEWSPAPER ARTICLE~DEPTOF CORR~CTIONS
Document Type NotSpecified Oocument Date 412612012 Submit 08te612012014 Author CONVICT WORKFoRCE AGREEMENT
Document Type -Not Specifted Document pate 4I26J2012 Submit Date 812012014 Author CLAIMANT - CONTRACT FOR PLACEMENT
Document Type NotSpeCified [)(lcument Date 1112612012 Submit Date 1123i2014 Author WORK RELEASE RECORD (111261122-19-13)
Document Type Not Speclfjed Document Date 1112712012 Submit Date 112312014 Author CONTRACTIPLACEMENT ON ROADCOMMUNITV
CREW
Document Type Not Specified Document Date 312812013 Submit Date 112312014 Author DUTY OFFICER REPORT
Document Type Not Specified Document Date 32812013 Submit Date 1232014 Author INCIDENT REPORT WITH ATTACHED MEDICATION
FORMS
19
000020
William Crawford JCN2014016722
Document Type Not Specified Document Dale 4412013 Submit Date 112312014 Author WILLIAM CRAWFO~D ~ STATEMENT
Document Type Not Specified DocUment Dale 412512013 Submit Date 611912014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 121102013 Submit Date 1l23t014 Aulhor CLAIMANTS DEPT OF CORRECTIONS FILE
Document Type Not Specified Document Date 12312014 Submit Date 112312014 Author CLAIMANT - CONTRACT PLACEMENTIWORK RELEASE
CENTER-UNDATED
Document Type NotSpeclfied Document De 113112014 Submit Date 2412014 Author EMPLOYER INTERROGATORIES
Document Type Not Specified Document Date 62312014 Submit Date 012312014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 12118204 Submit Date 11412015 Author BETIY SLACKmiddot DEPOSITION
Document Type Not Specified Document Date 21512015 Submit Date 212612015 Author JEFF STINNETTmiddot DEPOSITION WIEXHIBiTS
Document Type Not Specified Document Date 313112015 Submit Date 412212015 Author BOBBY WILUAMS - DEPOSITION
20
000021
JCN 2014016722WlUlam Crawford
Emglgyer Evid8DC8
Document Type Npt Specified ------f)ocumentDate--tlf2mo2-------------------- shy
$lIbmiiOate 73112014 Author WORK RELEASE STATUS MASTER FURLOUGH
AGREEMENT
Document Type Not Sp~lfied Document Date 312812013 Submit Date 713112014 Author OFFICE OF WV AUDITORmiddot FINANCIAL INFO MANAGEMENT
SYSTEM INVOICE SHEETS
Document Type Not Specified Document Date 312812013 Subinlt Date 713112014 Author DARRELL SIGMON - STATEMENT
Document Type Not Specified Document Date 31282013 Submit Date 713112014 Author ROCKY pARSONSmiddot STATEMENT
D~umentType Not Specified Document Date 612312014 Submit Date 713112014 Author BETTY SLACKmiddot AFFIDAVIT
CLOSING ARGUMENTS
21
000022
WillIam Crawford
PalY Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted tettE3FDate Party Submitted Letter Date
(b) Notwithstanding any provision of this code to the contrary no person confined in a state correctional f~iI~y or jail who suffers Injury or a disease In the eour$e of and resulting from his or her work during the period of confinement which work Is imposed by the admlntration of the state correctional facility or Jail and IS not suffered during the persons usual employment with his or her usual eMployer when not confined shall receive benefits under the provisions of this chapter for the InJUry or disease ProVIded That individuals otherwise QOIlftned In a state correctional facility or JaU or at a Juvenile services facility IInd working In a program authorized by sections fourteen or sixteen of article sevenchapter twenty-five of this code shall be eligible to receive benefits under the prov~Jons of this chapter while working In an authorized program The coverage for benefits may be obtained either by the prtvate entity or by agreernentwJth the state agency as specified In subsection (5) subsection (a) of sections fourteen and sixteen of artlc1e sevenchapter twenty-five of this code
Counsel also noted that WVa Code sect23-4-1e(b) referenced sect125-7-14 and 25shy7-16 which relate to a Prison Industry Enhancement (PIE) CertlflcIQn middotProgram Thus counsel said that there were two situatIons In whIch an Inmate is eligible for workersmiddot compensation benefits - working for PrISon Industries and working in the private sector pn work release The clamant argued thet there was no rational baels to discriminate betWeen prisoner classifications regarding workers compensation benefits The claimant was performing work that was of such nature that he could have done for a private employer He argued that there was no significant difference In status between the claimant and an inmate working for Prison Industries or placed in priVlllte employment who Is covered by workers compensation
Counsel noted significant differences between the 2012 agreement and earlier agreement$ The 2012 agreement provides that Inmates shall not operate equIpment larger than a riding lawn mower Further Inmates are not to use cnalnsaws WIthout special training Counsel argued that the hazardousness of operaUg wood Chippers Is shown In publications by OSHA
Citing state ex reI Boan vs Richardson 482 SE 2d 162 foNVa 1986) counsel argued that the Supreme Court of Appeals has held that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In similar circumstances and that any such statute violates the equal protection clause Art III Section 10 of the WVa Constltltlon The Court stated tJ1at It would look to whether the classlflcatlon was rational and based on social economIc historic or geographic factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally
9
000011
wiUlam Crawford JON 2014016722
The claimant argued that he was a member of a class of Incarcerated prisoners In which all persons are not treated equally Some of these workers are mandated to receive workers compensation and others are not The dlfferentiaUon between class members had nothing to do with the work performed 8$ he colfld have operated a wood chipper for a private employer Further placement In work Is not a function of anything other than availability of work so It middotIs a matter of chance or fate There was no rational basis on which to diSCriminate betwen Inmates W~rklng for Prison Indmries Working In private employment or working for a state agency The claimant argued that the denial of workers compensation to the claimant under these circumstances does not
_____--advance-LreasonablLgoveOlmemal--Dteresl_[bLretnedieLavallable_Jo_prlvaleyen-y--shyemployed inmates and state employed Inmates are different In that privately employ Inmet are coverd by workers CQmpensatl~n whereas those employed by a _e middotagencyrenot The onlymiddot remedy for astate employed InmatemiddotJsmiddota claim-under 42U$C 1983 for cruel and unusual punishment but this claim rqulres proof of deliberate jndlmrence middotto the hazard aOd this burden of proof Is eXtremely dlfllculttb meet Thus there are substantial dltterences In the remedies available to Inmates injured middoton the Job The ~almant also noted that Inmates engaged In work for the state re paid very low wag and had he been empfoyed by a PriVate employer he would have had benefit of workers compensation coverage
28 The employer filed a closing argument dated August 21 2014 Th employer argued that the ofalm was properly rejected because the clalmamiddotnl did not suffer an Injury In the course of and Ii result middotof covered employment The employer argued that the claimant was not an emplQyeeentiUed to workers compenSation ~ntlts Th employer noted ~hBt the Qlalrnant wa~ In~arcetated at the time of the Injury He was working on March 28 2013 on Corridor G for the Department of Highways when his hand was caught In a wood chipper He was nated at CAMe and his medical bills were paid by ttl Department of Corrections The employer felt that the circumstances of how the claimant became Injured were Irrelevant to compensability The employer stated that there was flO dispute that the claimant was performhig $8rvlces for DOH as part of his connnement at the Charleston Work Release Center He signed an agreement on November 27 2012 whkh was subject to a Contract for Placement at amiddot Work Release Center that he also signed His dUties with DOH were contingent on hlsmiddotContract for Placement on Road Crew or communitY Crew whIoh he signed on November 27 2012 The employer argued that according to documents raled to the agreement between the Department of Corrections and DOH Corrections would provide DOH with Inmates to perform dUUes for pOH The agreement outlined the terms and canditi~ related to the use of Inmate services and the compensation that Corrections would receive on behalf of the Inmates The agreement provided that the Inmates p$rforrrdog servfc~ under this agreement will not be employees of the State entitling them to any benefits such employees might have including but not limited to Insurance worker compensation benefits pensions sick and annual leaveII
The employer argued that the only wayan Inmate would be entiHed to workers compensation benefitS Is pursuant to placement In a program established under WVa Code sect25-7-14 or sect25-7-16 which apply to programs estabUshed to the federal Prison
10
000012
William Crawford JON 2014016722
Industry Enhancement (PIE) Certification Program The evidence shows that to date no such programs have ever existed and no DOCDOH road crew program Ie part of PIE
The employer argued that WVa Code sect23-2-1deflnea employer and sect 2~2-1a defines aemployeeD The employer argued that the claimant Is barred from receiving workers compensation benefits due to his status as an Incarcerated individual at the time of his injury because WVa Code sect23-4-1eb) provides that I[n)otwlthstandlng any provislcm of this code to the contrary no person confined hi a state correctional facility
____-----Dr_JaILwbo-suffersJnJWyen--DudlseaseJnJbeMursUlLand1uuJtlng1mmltlsoLhe( w~ork_____ during the period of confinement whiCh work Is Imposed by the ~dmlnlstratlon of the state correctional facility or Jail and is not suffered during the persons usual employment with his or her usUal employer when not conftnedshall receive benem under the provisions of thl~ chapter for the injury or d~ease
The employer argued that the code 8peclfie$ that an Inmate Is not entitled to workers compenSation If Injured while completing work imposed by the administration ofthe state correctional facility or jail However had he been working in a PIE program he would hav~ been enHtled to workers cC)mpensation beneflts The employer argued that tbe claimants closing argument confirmed this finding- but he argues that his constitutional rights have been violated In response the employer argued th~t the PIE program flowed out of federal leglslatlcm and (hat the clear and rational basis for the requirement that private employers provide workers compensation ooverage for Inmate employees under the Pie program is 80 no unfair advantage la given to the private employer
The employer argued that the olaimants constitutional argument falla and that his only recourse Is to petition the legislature for a change In the current law However the employer argued that any determination by the Court that all Inmates are entitled to workers compensation benefits would slgnlJlcantIy ImpaCt the states budget
29 The claimant flied a Reply to Closing Argument and Exhibits dated August 26 2014 The claimant clarified that his argument based upon the PIE program was based upon the employers affidavit Indicating that program Is dormant He stated that even If the PIE program had remained dormant this did not mean that Inmates were only empioyed by DOH and that statements by the Director of Division of Corrections and the Governors BUdget document clearly state that Inmates are employed In the private sector The claimant attached Exhibit A to this filing and he stated that In this attachment Mr Rubenstein stated that the majority of Inmates -e empoyed In fast food industry and restaurants The claimant again argued that there was a dlaparate treatment between inmates who work for the Department of transportation and those In any kind of private employment and this was a violation of the Canstltudan
30 The employer filed a Response to Closing Argument and exhibits dated September 9 2014 The employer argued that the claimants reply was submitted on
11
000013
WIUlam Crawford JCN 2014016722
August 26 2014 which was filed after the ten day prlod for case summation pursuant to WVa CSR sect 93~1-65 since the time frame expired on August 11 2014
The employer stated that the provlslons of Article 7 of Chapter 25 of the West Virginia Code were drafted to comply with 18 USC sect 1161 (c) the PIE program The federal legislation allOWS state andmiddot local prisons to be exempt from federal restrictions on prisoner-made goods entering Inte_te commerce and allOWS private individuals tn some clrcumst~mces to hire Inmates for production of goods However the Inmates must be paid similar wages 80 as not to allow a private Industry to obtilhlan unfair
------_advantagacomparecUO-the-prlva~sector~-ThaemployJtr--8tatedJbaUmgatiorLl8gamlng_______ 18 OSC sect 1761(0) Is cleaithal Its purpose Is to protect private businesses and that It was not enacted to protect Inmate workers The ernp~oyer cited McMaster v Minnesota 30 F3d 9679811994 US App Lexls 1861816 (8middot CIr Minn 1994)
31 The employer flied a Seoond Closing Argument ~ated MarQh 162015 The employer stated that the Issue was whether the claimant was entitled to receive workers compensation benems after sustainIng an injury while working for DIVIsion of HlghwaY$ on a work crew from the Chal1stQn Work Release Center The employer noted that the claimant signed a Maser Furlough Agreement on November 27 2012 He also signed a Contract for Placement at a Work Release Center His duties WIth DOH were contingent on a Contract for Placement on Road Crew or Community Crew which he signed on November 272012
The employer noted that there were agreements between Department of Corrections and Division of Highways regarding Inmate servk Neither DOH nor DOC conSidered the Inmate workers fo be employees and the contract stated that they were not employees of the State and not entitled to employee benefits Including degworker compens~lljon
The employer argued that the only conditions under which an Inmate is entitled to workers compensation benefits Is if he were placed In a Prison Industry Enhancement (PIE) Certification Program under WVa Codmiddote sect 25-7-14 or sect25-7-16 Ther have never been any PIE programs In West Virginia and so the claimant was not part of this program
The employer responded to the claimants argument that inmates employed in the private sector outside the PIE program and they are coved by workers compensation and thus the noncoverage for inmates such as the claimant Is unconstitutional The employer argued that Ms Slack testified that Correctional Industries operates about 17 production shops In which inmates work Some Inmates from the Charleston Work Release Center assist but none of the (nmates receive benefits Mr stinnett administrator of the Charleston Work Release Centertestlfled that there were criteria for Inmates to be placed at the Work Release Center and there was a running list of Inmates who desired placement When a bed opened an Inmate Is placed there He stated that about 45 Inmates work In private Industry rather than with
12
000014
William Crawford JCN 2014016722
the State The C~nter attempted to get private Jobs for inmates who would ultimately be released In Charleston so that they can continue to work when reJeased
The employer argued that the clalm_nt was barred from receiving workers compensation duetohts Incarceration at the time of his inJury pursuant to WVa Code sect23-4-1e The employer noted that PIE program Inmates are provided coverage by the private employer and that the purpose of this was to Implement federal regulations and protect private businesses from unfair competition Thus there is a clear and rational basis for dlff8f~mces between Inmates wC)fklng for private employers In a PIE program
32 The claimant filed a Supplemental Closing Argument dated March 20 2015 The claimant argued that the statutory framework regarding work- rajease and the provision of beneflt$ and the Implementation of the statute by the Department of Corrections violates the equal protection clause The claimant argued that not only do Inmates who woUld work under the PIE program Of ever Imptemerited) receive workers comperl$ation ~enet1ts but those who are released to work in the private sector receive workers compensation and other benefits The claImant argued that those who work for Department of Highways do not relieve the ame benfllsas those similrly situated Inmates whQ work In private sector jobs and this is discrimination with no reasonabie basis
33 Counsel for the claimant and the employer presented closing arguments at a hearlng on May 5 2015 Cou for the claimant _ated that the Issue was oompensabllityfor an Inmate Who Injured his hand while working for a Division of Highways crew while at a Work Release Center Counsel for the claimant cited State ex ret Boan VS Richardson 482 SE 2d 162 ~Va 1966) IInd argued that the SUpreme Court of Appeals ruled that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In slmUar circumstances and that any suqh statute violates the equal protectlcm clause Art IU SeCtion 10 of the WVa Constitution Counsel stated that had the claimant worked for a private employer he would have been covered j)y workers compensation There are no rules or regulaUons governing whether an Inmate works for DOH or a private employer Thus there Is no rational basiS for how they are assigned Underbn the elaimant argued he has been wrongfully dlscrfmlnated against
The employer stated that the claimant was barred frQm receiving workers compensatlc)O WVa Code sect23-4-1e(b) He was an Inmate subject to confinement and was not In a PIE program which Is an exception The participant Inmates are stUI Incarcerated While In the Work Release program The OOJ has no authority to decide the statute Is Constitutional The claimants remedy Is to convince the state legislature to change the statute Counsel for the employer stated that his mecilcal bills were covred by Department of Corrections Counsel argued that the OOJ must affirm the Order Counsel Indicated that once paroled the claimant was not eligible for further medIcal treatment to be paid by Department of Corrections
13
000015
William Crawford JCN 2014016722
DISCUSSION
This case Is before the OffIce of Judges based on a protest to the Order regarding tbe compensElbllltyof the claim W- Virgins Code -523-4-1 provides for benefits to employees who receive an Injury In the course of and as a result of their covered employment The more preci$e $Sue presented hre Is whether the claimant Is entitled to benefits for an InjJJry he received while he waS an inmate working on a crew pursuant to agreements between himselfi the Department of corrections and DMslon of Highways
i ---------------------------------------------------------------------~-
W Va Code sect23-4-1 9 provides that for all awards made on and after July 1 I 2003 the resolution of any Issue shall be ba~ upon a weighing of atl evldenoe pertelnlng -lothe Issue and a finding that8 preponderance of themiddot evidence supportsmiddot the chosen manner of resolution The process of weighing evld~nce $hall include ~ut not be limited to an assessmei1t of the r~lecC credlblRty materiality and rellabllty that the evidence possesses In the context of the Issue presented No Issue may be resolved by allOWing certain evidence to be diSpositive Simply because It Is reflable and Is mosJ favor-ble to a partys Intrests or position The resolution of Issues n claims for compensation must be decided on the merits and not according to any prinCiple that requir statut governing workers ~ompeJS~lon to be Ilb~rally conStrued because th~V are remedialili natute If after weighing all of the evidence regarding an Issue there Is a finding that an equal amount of evidentiary weight ~$ for each side the resoltiQcm that is most con$lstent With the claUnant$ position Will be adopted
Preponderence of the evldenQe means proof that $omethlng Is more likely 80 thail nbt ~o In other words a preponderance Of the evidence means such evidence when considered and compared with opposing evidence Is more pe~uaslve or convincing Pre~nderance of the evidence may not be determined by merely counting the number of witnesses reports evaluations or other items of evidence Rathermiddotft Is datennlned by assessing the persaslven8$Sof the evidence Includlng the opportUnity for knowledge Information possessed and manner of testifying or reporting
While working on a highway crew on March 282013 the claiment badly Injured his hand In a wood chipper While there are some variances In the claimants statements compared to witneamp$ statements about the particulars of the InJury none of those differences would change the outcome of this Decision and thus are not relevant to the discussion There Is no dispute that the claimant was Injured as a result of his work on the road crew while he was an inmate at the Charleston Work Release Centr His inJuries fe$ulted In surgery and hospitalization at CAMC where his medical bills In e)(cees of $90000 were paId by the Department of Corrections He was paroled soon after he was released from the hospital
The claim was rejected by an Order dated November 15 2013 which denied the application for benefits as it was determined that he did not sustain an Injury In the course of and resulting from his employment The claim administrators Investigation
14
000016
WilHam Crawford JON 2014016722
Inmates and that they must pay them the same wages non-Inmate workers and they must provide workers compensation coverage for them (See deposition of Jeff stinnett Administrator of the Charleston Work Release Center dated February 5 2015) Most of the private employment of Inmates 18 In fast food reurants grocery stores and factorieS Bobby WIlliams a case manager at the Charleston Work Release Center testified on March 31 2015 that he talked tolnmat~ to see If they wanted to work on a DOH crew He said that to m It made sense to place inmates In posiUons In the community In which they would be released The claimant was to be paroled to Hardy County which Is not within a driving distance to Charleston
The claimant argued that there were no rules or regJlations that would determine -shywhether an Inmate was placed In a private companymiddot or with DOH However this placement- would middotdetermln their fate If -they were InJured While on work refeaee Counsel for the claimant argued that this disparate treatment was discriminatory Counsel cited the West Virginia Supreme Court of Appeals holding In State ex ret Boan YS RlcIDardson 482 se 2d 162 ~va 1966) In which the court held that a workers compensation statute atfeQtlng economic rights may not be used to discriminate among a class of In~lvl~uals In similar circumstances and that any such statute violates the equal protection clause Art IU Section 10 of ttle WVa Constitution The Court stated that ~ would look to whe~her the classffication was rational and Qbased on socliil economic historic or geographIc factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally Id at 164 The claimant argued that he was a inmbar of Incarcerated prisoners in Which all persons weranot treated equally In that some qualified for workers compensation coverage and others did not
There Is no disagreement In this case that W Va Code sect23-4-1e(b) bars the claimant frC)O1 r~elpt of workers compensation benefltB The claimant argues that this law Is unconstltutlonal The Offlce of Judges Is not an Article III Court and does not have jurisdiction to rule a sttule is unconstitutional Therefore itmiddot1S found that the Order properly rejected the claim pursuant to W Va Code sect23-41e(b)
CONCWSlONS OF LAW
Pursuant to W Va Code sect23-4-1e(b) the claimant is ineligible to receive workers compensation benefits fer an Injury he received while In a Work Release Center performing work for Division of Highways In accordance With agreements with Department of Corrections
It Is therefore ORDERED that the Claim Administrators Order dated November 152013 be AFFIRMED
16
000017
William Crawford JON 2014016722
APPEAL RIGHTS
Under the provisions of WVa Code sect23-5-12 any aggrieved party may file a written appeal wlthlnthJrty (30) days after receipt of any decision or action of the Administrative Law Judge The appeal shall be filed ~Irectly with the Workrs Compensation Board of Review at PO Box 2828 Cha~eston WV 263~9
Date July 6bull 2015
RibcCca S CharI Administrative Law ludp
RSCQtc
cc WILUAM F CRAWFORD JOHN HENRY SKAGGS -COUNSEL FOR CLAIMANT DEPT OF CORRECTIONS-WORK RELEASE LISA WARNER HUNTER - COUNSEL FOR EMPLOYER AMERiCAN ZURICH INS CO
17
000018
William Crawford JCN 2014016722
JCN
Date
2014016722
July 6 2015
ReconJ Considered
The Clalmanfs protest to the Claims Administrators order Of regarding REJECTION OF CLAIM
November 15 2013
EVIDENCE SUBMITTED
Claimant Evidence
Document Type Not Specified Document Date 11112000 Submit Date 6Q012014 Author EMPlOYERICLAIMANT - WORK AGREEMENT
DoaIment Type NotSpepified Document Date 1112OQ4 Submit Date 612012014 Author WV DIVISIONS OF CORRECTIONS - POUCY
OIRECnVE
Document Type Not Specified Document Date 41112006 Submit Date 612012014 Author CHIPPERISHREDOER SAFElY - K-STATE
ARTICLE
Document Type Oocum~nt Dale Submit Date
Not Specified 41612008 612012014
18
000019
Willism Crawford JON 2014016722
Author HAZARDS OF WOOD CHIPPERS - OSHAOOV
Document Type Not-Specified Document Date 7112010 Submit Date 812612014 Author DIVISION OF CORRECTIONS-2010 EXECUTIVE BUDGET
STATEMENT
Document Type Not Specified-----DocumenrDste=------r71t212010----------------------- ----
Submit Date 812612014 Author NEWSPAPER ARTICLE~DEPTOF CORR~CTIONS
Document Type NotSpecified Oocument Date 412612012 Submit 08te612012014 Author CONVICT WORKFoRCE AGREEMENT
Document Type -Not Specifted Document pate 4I26J2012 Submit Date 812012014 Author CLAIMANT - CONTRACT FOR PLACEMENT
Document Type NotSpeCified [)(lcument Date 1112612012 Submit Date 1123i2014 Author WORK RELEASE RECORD (111261122-19-13)
Document Type Not Speclfjed Document Date 1112712012 Submit Date 112312014 Author CONTRACTIPLACEMENT ON ROADCOMMUNITV
CREW
Document Type Not Specified Document Date 312812013 Submit Date 112312014 Author DUTY OFFICER REPORT
Document Type Not Specified Document Date 32812013 Submit Date 1232014 Author INCIDENT REPORT WITH ATTACHED MEDICATION
FORMS
19
000020
William Crawford JCN2014016722
Document Type Not Specified Document Dale 4412013 Submit Date 112312014 Author WILLIAM CRAWFO~D ~ STATEMENT
Document Type Not Specified DocUment Dale 412512013 Submit Date 611912014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 121102013 Submit Date 1l23t014 Aulhor CLAIMANTS DEPT OF CORRECTIONS FILE
Document Type Not Specified Document Date 12312014 Submit Date 112312014 Author CLAIMANT - CONTRACT PLACEMENTIWORK RELEASE
CENTER-UNDATED
Document Type NotSpeclfied Document De 113112014 Submit Date 2412014 Author EMPLOYER INTERROGATORIES
Document Type Not Specified Document Date 62312014 Submit Date 012312014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 12118204 Submit Date 11412015 Author BETIY SLACKmiddot DEPOSITION
Document Type Not Specified Document Date 21512015 Submit Date 212612015 Author JEFF STINNETTmiddot DEPOSITION WIEXHIBiTS
Document Type Not Specified Document Date 313112015 Submit Date 412212015 Author BOBBY WILUAMS - DEPOSITION
20
000021
JCN 2014016722WlUlam Crawford
Emglgyer Evid8DC8
Document Type Npt Specified ------f)ocumentDate--tlf2mo2-------------------- shy
$lIbmiiOate 73112014 Author WORK RELEASE STATUS MASTER FURLOUGH
AGREEMENT
Document Type Not Sp~lfied Document Date 312812013 Submit Date 713112014 Author OFFICE OF WV AUDITORmiddot FINANCIAL INFO MANAGEMENT
SYSTEM INVOICE SHEETS
Document Type Not Specified Document Date 312812013 Subinlt Date 713112014 Author DARRELL SIGMON - STATEMENT
Document Type Not Specified Document Date 31282013 Submit Date 713112014 Author ROCKY pARSONSmiddot STATEMENT
D~umentType Not Specified Document Date 612312014 Submit Date 713112014 Author BETTY SLACKmiddot AFFIDAVIT
CLOSING ARGUMENTS
21
000022
WillIam Crawford
PalY Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted tettE3FDate Party Submitted Letter Date
The claimant argued that he was a member of a class of Incarcerated prisoners In which all persons are not treated equally Some of these workers are mandated to receive workers compensation and others are not The dlfferentiaUon between class members had nothing to do with the work performed 8$ he colfld have operated a wood chipper for a private employer Further placement In work Is not a function of anything other than availability of work so It middotIs a matter of chance or fate There was no rational basis on which to diSCriminate betwen Inmates W~rklng for Prison Indmries Working In private employment or working for a state agency The claimant argued that the denial of workers compensation to the claimant under these circumstances does not
_____--advance-LreasonablLgoveOlmemal--Dteresl_[bLretnedieLavallable_Jo_prlvaleyen-y--shyemployed inmates and state employed Inmates are different In that privately employ Inmet are coverd by workers CQmpensatl~n whereas those employed by a _e middotagencyrenot The onlymiddot remedy for astate employed InmatemiddotJsmiddota claim-under 42U$C 1983 for cruel and unusual punishment but this claim rqulres proof of deliberate jndlmrence middotto the hazard aOd this burden of proof Is eXtremely dlfllculttb meet Thus there are substantial dltterences In the remedies available to Inmates injured middoton the Job The ~almant also noted that Inmates engaged In work for the state re paid very low wag and had he been empfoyed by a PriVate employer he would have had benefit of workers compensation coverage
28 The employer filed a closing argument dated August 21 2014 Th employer argued that the ofalm was properly rejected because the clalmamiddotnl did not suffer an Injury In the course of and Ii result middotof covered employment The employer argued that the claimant was not an emplQyeeentiUed to workers compenSation ~ntlts Th employer noted ~hBt the Qlalrnant wa~ In~arcetated at the time of the Injury He was working on March 28 2013 on Corridor G for the Department of Highways when his hand was caught In a wood chipper He was nated at CAMe and his medical bills were paid by ttl Department of Corrections The employer felt that the circumstances of how the claimant became Injured were Irrelevant to compensability The employer stated that there was flO dispute that the claimant was performhig $8rvlces for DOH as part of his connnement at the Charleston Work Release Center He signed an agreement on November 27 2012 whkh was subject to a Contract for Placement at amiddot Work Release Center that he also signed His dUties with DOH were contingent on hlsmiddotContract for Placement on Road Crew or communitY Crew whIoh he signed on November 27 2012 The employer argued that according to documents raled to the agreement between the Department of Corrections and DOH Corrections would provide DOH with Inmates to perform dUUes for pOH The agreement outlined the terms and canditi~ related to the use of Inmate services and the compensation that Corrections would receive on behalf of the Inmates The agreement provided that the Inmates p$rforrrdog servfc~ under this agreement will not be employees of the State entitling them to any benefits such employees might have including but not limited to Insurance worker compensation benefits pensions sick and annual leaveII
The employer argued that the only wayan Inmate would be entiHed to workers compensation benefitS Is pursuant to placement In a program established under WVa Code sect25-7-14 or sect25-7-16 which apply to programs estabUshed to the federal Prison
10
000012
William Crawford JON 2014016722
Industry Enhancement (PIE) Certification Program The evidence shows that to date no such programs have ever existed and no DOCDOH road crew program Ie part of PIE
The employer argued that WVa Code sect23-2-1deflnea employer and sect 2~2-1a defines aemployeeD The employer argued that the claimant Is barred from receiving workers compensation benefits due to his status as an Incarcerated individual at the time of his injury because WVa Code sect23-4-1eb) provides that I[n)otwlthstandlng any provislcm of this code to the contrary no person confined hi a state correctional facility
____-----Dr_JaILwbo-suffersJnJWyen--DudlseaseJnJbeMursUlLand1uuJtlng1mmltlsoLhe( w~ork_____ during the period of confinement whiCh work Is Imposed by the ~dmlnlstratlon of the state correctional facility or Jail and is not suffered during the persons usual employment with his or her usUal employer when not conftnedshall receive benem under the provisions of thl~ chapter for the injury or d~ease
The employer argued that the code 8peclfie$ that an Inmate Is not entitled to workers compenSation If Injured while completing work imposed by the administration ofthe state correctional facility or jail However had he been working in a PIE program he would hav~ been enHtled to workers cC)mpensation beneflts The employer argued that tbe claimants closing argument confirmed this finding- but he argues that his constitutional rights have been violated In response the employer argued th~t the PIE program flowed out of federal leglslatlcm and (hat the clear and rational basis for the requirement that private employers provide workers compensation ooverage for Inmate employees under the Pie program is 80 no unfair advantage la given to the private employer
The employer argued that the olaimants constitutional argument falla and that his only recourse Is to petition the legislature for a change In the current law However the employer argued that any determination by the Court that all Inmates are entitled to workers compensation benefits would slgnlJlcantIy ImpaCt the states budget
29 The claimant flied a Reply to Closing Argument and Exhibits dated August 26 2014 The claimant clarified that his argument based upon the PIE program was based upon the employers affidavit Indicating that program Is dormant He stated that even If the PIE program had remained dormant this did not mean that Inmates were only empioyed by DOH and that statements by the Director of Division of Corrections and the Governors BUdget document clearly state that Inmates are employed In the private sector The claimant attached Exhibit A to this filing and he stated that In this attachment Mr Rubenstein stated that the majority of Inmates -e empoyed In fast food industry and restaurants The claimant again argued that there was a dlaparate treatment between inmates who work for the Department of transportation and those In any kind of private employment and this was a violation of the Canstltudan
30 The employer filed a Response to Closing Argument and exhibits dated September 9 2014 The employer argued that the claimants reply was submitted on
11
000013
WIUlam Crawford JCN 2014016722
August 26 2014 which was filed after the ten day prlod for case summation pursuant to WVa CSR sect 93~1-65 since the time frame expired on August 11 2014
The employer stated that the provlslons of Article 7 of Chapter 25 of the West Virginia Code were drafted to comply with 18 USC sect 1161 (c) the PIE program The federal legislation allOWS state andmiddot local prisons to be exempt from federal restrictions on prisoner-made goods entering Inte_te commerce and allOWS private individuals tn some clrcumst~mces to hire Inmates for production of goods However the Inmates must be paid similar wages 80 as not to allow a private Industry to obtilhlan unfair
------_advantagacomparecUO-the-prlva~sector~-ThaemployJtr--8tatedJbaUmgatiorLl8gamlng_______ 18 OSC sect 1761(0) Is cleaithal Its purpose Is to protect private businesses and that It was not enacted to protect Inmate workers The ernp~oyer cited McMaster v Minnesota 30 F3d 9679811994 US App Lexls 1861816 (8middot CIr Minn 1994)
31 The employer flied a Seoond Closing Argument ~ated MarQh 162015 The employer stated that the Issue was whether the claimant was entitled to receive workers compensation benems after sustainIng an injury while working for DIVIsion of HlghwaY$ on a work crew from the Chal1stQn Work Release Center The employer noted that the claimant signed a Maser Furlough Agreement on November 27 2012 He also signed a Contract for Placement at a Work Release Center His duties WIth DOH were contingent on a Contract for Placement on Road Crew or Community Crew which he signed on November 272012
The employer noted that there were agreements between Department of Corrections and Division of Highways regarding Inmate servk Neither DOH nor DOC conSidered the Inmate workers fo be employees and the contract stated that they were not employees of the State and not entitled to employee benefits Including degworker compens~lljon
The employer argued that the only conditions under which an Inmate is entitled to workers compensation benefits Is if he were placed In a Prison Industry Enhancement (PIE) Certification Program under WVa Codmiddote sect 25-7-14 or sect25-7-16 Ther have never been any PIE programs In West Virginia and so the claimant was not part of this program
The employer responded to the claimants argument that inmates employed in the private sector outside the PIE program and they are coved by workers compensation and thus the noncoverage for inmates such as the claimant Is unconstitutional The employer argued that Ms Slack testified that Correctional Industries operates about 17 production shops In which inmates work Some Inmates from the Charleston Work Release Center assist but none of the (nmates receive benefits Mr stinnett administrator of the Charleston Work Release Centertestlfled that there were criteria for Inmates to be placed at the Work Release Center and there was a running list of Inmates who desired placement When a bed opened an Inmate Is placed there He stated that about 45 Inmates work In private Industry rather than with
12
000014
William Crawford JCN 2014016722
the State The C~nter attempted to get private Jobs for inmates who would ultimately be released In Charleston so that they can continue to work when reJeased
The employer argued that the clalm_nt was barred from receiving workers compensation duetohts Incarceration at the time of his inJury pursuant to WVa Code sect23-4-1e The employer noted that PIE program Inmates are provided coverage by the private employer and that the purpose of this was to Implement federal regulations and protect private businesses from unfair competition Thus there is a clear and rational basis for dlff8f~mces between Inmates wC)fklng for private employers In a PIE program
32 The claimant filed a Supplemental Closing Argument dated March 20 2015 The claimant argued that the statutory framework regarding work- rajease and the provision of beneflt$ and the Implementation of the statute by the Department of Corrections violates the equal protection clause The claimant argued that not only do Inmates who woUld work under the PIE program Of ever Imptemerited) receive workers comperl$ation ~enet1ts but those who are released to work in the private sector receive workers compensation and other benefits The claImant argued that those who work for Department of Highways do not relieve the ame benfllsas those similrly situated Inmates whQ work In private sector jobs and this is discrimination with no reasonabie basis
33 Counsel for the claimant and the employer presented closing arguments at a hearlng on May 5 2015 Cou for the claimant _ated that the Issue was oompensabllityfor an Inmate Who Injured his hand while working for a Division of Highways crew while at a Work Release Center Counsel for the claimant cited State ex ret Boan VS Richardson 482 SE 2d 162 ~Va 1966) IInd argued that the SUpreme Court of Appeals ruled that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In slmUar circumstances and that any suqh statute violates the equal protectlcm clause Art IU SeCtion 10 of the WVa Constitution Counsel stated that had the claimant worked for a private employer he would have been covered j)y workers compensation There are no rules or regulaUons governing whether an Inmate works for DOH or a private employer Thus there Is no rational basiS for how they are assigned Underbn the elaimant argued he has been wrongfully dlscrfmlnated against
The employer stated that the claimant was barred frQm receiving workers compensatlc)O WVa Code sect23-4-1e(b) He was an Inmate subject to confinement and was not In a PIE program which Is an exception The participant Inmates are stUI Incarcerated While In the Work Release program The OOJ has no authority to decide the statute Is Constitutional The claimants remedy Is to convince the state legislature to change the statute Counsel for the employer stated that his mecilcal bills were covred by Department of Corrections Counsel argued that the OOJ must affirm the Order Counsel Indicated that once paroled the claimant was not eligible for further medIcal treatment to be paid by Department of Corrections
13
000015
William Crawford JCN 2014016722
DISCUSSION
This case Is before the OffIce of Judges based on a protest to the Order regarding tbe compensElbllltyof the claim W- Virgins Code -523-4-1 provides for benefits to employees who receive an Injury In the course of and as a result of their covered employment The more preci$e $Sue presented hre Is whether the claimant Is entitled to benefits for an InjJJry he received while he waS an inmate working on a crew pursuant to agreements between himselfi the Department of corrections and DMslon of Highways
i ---------------------------------------------------------------------~-
W Va Code sect23-4-1 9 provides that for all awards made on and after July 1 I 2003 the resolution of any Issue shall be ba~ upon a weighing of atl evldenoe pertelnlng -lothe Issue and a finding that8 preponderance of themiddot evidence supportsmiddot the chosen manner of resolution The process of weighing evld~nce $hall include ~ut not be limited to an assessmei1t of the r~lecC credlblRty materiality and rellabllty that the evidence possesses In the context of the Issue presented No Issue may be resolved by allOWing certain evidence to be diSpositive Simply because It Is reflable and Is mosJ favor-ble to a partys Intrests or position The resolution of Issues n claims for compensation must be decided on the merits and not according to any prinCiple that requir statut governing workers ~ompeJS~lon to be Ilb~rally conStrued because th~V are remedialili natute If after weighing all of the evidence regarding an Issue there Is a finding that an equal amount of evidentiary weight ~$ for each side the resoltiQcm that is most con$lstent With the claUnant$ position Will be adopted
Preponderence of the evldenQe means proof that $omethlng Is more likely 80 thail nbt ~o In other words a preponderance Of the evidence means such evidence when considered and compared with opposing evidence Is more pe~uaslve or convincing Pre~nderance of the evidence may not be determined by merely counting the number of witnesses reports evaluations or other items of evidence Rathermiddotft Is datennlned by assessing the persaslven8$Sof the evidence Includlng the opportUnity for knowledge Information possessed and manner of testifying or reporting
While working on a highway crew on March 282013 the claiment badly Injured his hand In a wood chipper While there are some variances In the claimants statements compared to witneamp$ statements about the particulars of the InJury none of those differences would change the outcome of this Decision and thus are not relevant to the discussion There Is no dispute that the claimant was Injured as a result of his work on the road crew while he was an inmate at the Charleston Work Release Centr His inJuries fe$ulted In surgery and hospitalization at CAMC where his medical bills In e)(cees of $90000 were paId by the Department of Corrections He was paroled soon after he was released from the hospital
The claim was rejected by an Order dated November 15 2013 which denied the application for benefits as it was determined that he did not sustain an Injury In the course of and resulting from his employment The claim administrators Investigation
14
000016
WilHam Crawford JON 2014016722
Inmates and that they must pay them the same wages non-Inmate workers and they must provide workers compensation coverage for them (See deposition of Jeff stinnett Administrator of the Charleston Work Release Center dated February 5 2015) Most of the private employment of Inmates 18 In fast food reurants grocery stores and factorieS Bobby WIlliams a case manager at the Charleston Work Release Center testified on March 31 2015 that he talked tolnmat~ to see If they wanted to work on a DOH crew He said that to m It made sense to place inmates In posiUons In the community In which they would be released The claimant was to be paroled to Hardy County which Is not within a driving distance to Charleston
The claimant argued that there were no rules or regJlations that would determine -shywhether an Inmate was placed In a private companymiddot or with DOH However this placement- would middotdetermln their fate If -they were InJured While on work refeaee Counsel for the claimant argued that this disparate treatment was discriminatory Counsel cited the West Virginia Supreme Court of Appeals holding In State ex ret Boan YS RlcIDardson 482 se 2d 162 ~va 1966) In which the court held that a workers compensation statute atfeQtlng economic rights may not be used to discriminate among a class of In~lvl~uals In similar circumstances and that any such statute violates the equal protection clause Art IU Section 10 of ttle WVa Constitution The Court stated that ~ would look to whe~her the classffication was rational and Qbased on socliil economic historic or geographIc factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally Id at 164 The claimant argued that he was a inmbar of Incarcerated prisoners in Which all persons weranot treated equally In that some qualified for workers compensation coverage and others did not
There Is no disagreement In this case that W Va Code sect23-4-1e(b) bars the claimant frC)O1 r~elpt of workers compensation benefltB The claimant argues that this law Is unconstltutlonal The Offlce of Judges Is not an Article III Court and does not have jurisdiction to rule a sttule is unconstitutional Therefore itmiddot1S found that the Order properly rejected the claim pursuant to W Va Code sect23-41e(b)
CONCWSlONS OF LAW
Pursuant to W Va Code sect23-4-1e(b) the claimant is ineligible to receive workers compensation benefits fer an Injury he received while In a Work Release Center performing work for Division of Highways In accordance With agreements with Department of Corrections
It Is therefore ORDERED that the Claim Administrators Order dated November 152013 be AFFIRMED
16
000017
William Crawford JON 2014016722
APPEAL RIGHTS
Under the provisions of WVa Code sect23-5-12 any aggrieved party may file a written appeal wlthlnthJrty (30) days after receipt of any decision or action of the Administrative Law Judge The appeal shall be filed ~Irectly with the Workrs Compensation Board of Review at PO Box 2828 Cha~eston WV 263~9
Date July 6bull 2015
RibcCca S CharI Administrative Law ludp
RSCQtc
cc WILUAM F CRAWFORD JOHN HENRY SKAGGS -COUNSEL FOR CLAIMANT DEPT OF CORRECTIONS-WORK RELEASE LISA WARNER HUNTER - COUNSEL FOR EMPLOYER AMERiCAN ZURICH INS CO
17
000018
William Crawford JCN 2014016722
JCN
Date
2014016722
July 6 2015
ReconJ Considered
The Clalmanfs protest to the Claims Administrators order Of regarding REJECTION OF CLAIM
November 15 2013
EVIDENCE SUBMITTED
Claimant Evidence
Document Type Not Specified Document Date 11112000 Submit Date 6Q012014 Author EMPlOYERICLAIMANT - WORK AGREEMENT
DoaIment Type NotSpepified Document Date 1112OQ4 Submit Date 612012014 Author WV DIVISIONS OF CORRECTIONS - POUCY
OIRECnVE
Document Type Not Specified Document Date 41112006 Submit Date 612012014 Author CHIPPERISHREDOER SAFElY - K-STATE
ARTICLE
Document Type Oocum~nt Dale Submit Date
Not Specified 41612008 612012014
18
000019
Willism Crawford JON 2014016722
Author HAZARDS OF WOOD CHIPPERS - OSHAOOV
Document Type Not-Specified Document Date 7112010 Submit Date 812612014 Author DIVISION OF CORRECTIONS-2010 EXECUTIVE BUDGET
STATEMENT
Document Type Not Specified-----DocumenrDste=------r71t212010----------------------- ----
Submit Date 812612014 Author NEWSPAPER ARTICLE~DEPTOF CORR~CTIONS
Document Type NotSpecified Oocument Date 412612012 Submit 08te612012014 Author CONVICT WORKFoRCE AGREEMENT
Document Type -Not Specifted Document pate 4I26J2012 Submit Date 812012014 Author CLAIMANT - CONTRACT FOR PLACEMENT
Document Type NotSpeCified [)(lcument Date 1112612012 Submit Date 1123i2014 Author WORK RELEASE RECORD (111261122-19-13)
Document Type Not Speclfjed Document Date 1112712012 Submit Date 112312014 Author CONTRACTIPLACEMENT ON ROADCOMMUNITV
CREW
Document Type Not Specified Document Date 312812013 Submit Date 112312014 Author DUTY OFFICER REPORT
Document Type Not Specified Document Date 32812013 Submit Date 1232014 Author INCIDENT REPORT WITH ATTACHED MEDICATION
FORMS
19
000020
William Crawford JCN2014016722
Document Type Not Specified Document Dale 4412013 Submit Date 112312014 Author WILLIAM CRAWFO~D ~ STATEMENT
Document Type Not Specified DocUment Dale 412512013 Submit Date 611912014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 121102013 Submit Date 1l23t014 Aulhor CLAIMANTS DEPT OF CORRECTIONS FILE
Document Type Not Specified Document Date 12312014 Submit Date 112312014 Author CLAIMANT - CONTRACT PLACEMENTIWORK RELEASE
CENTER-UNDATED
Document Type NotSpeclfied Document De 113112014 Submit Date 2412014 Author EMPLOYER INTERROGATORIES
Document Type Not Specified Document Date 62312014 Submit Date 012312014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 12118204 Submit Date 11412015 Author BETIY SLACKmiddot DEPOSITION
Document Type Not Specified Document Date 21512015 Submit Date 212612015 Author JEFF STINNETTmiddot DEPOSITION WIEXHIBiTS
Document Type Not Specified Document Date 313112015 Submit Date 412212015 Author BOBBY WILUAMS - DEPOSITION
20
000021
JCN 2014016722WlUlam Crawford
Emglgyer Evid8DC8
Document Type Npt Specified ------f)ocumentDate--tlf2mo2-------------------- shy
$lIbmiiOate 73112014 Author WORK RELEASE STATUS MASTER FURLOUGH
AGREEMENT
Document Type Not Sp~lfied Document Date 312812013 Submit Date 713112014 Author OFFICE OF WV AUDITORmiddot FINANCIAL INFO MANAGEMENT
SYSTEM INVOICE SHEETS
Document Type Not Specified Document Date 312812013 Subinlt Date 713112014 Author DARRELL SIGMON - STATEMENT
Document Type Not Specified Document Date 31282013 Submit Date 713112014 Author ROCKY pARSONSmiddot STATEMENT
D~umentType Not Specified Document Date 612312014 Submit Date 713112014 Author BETTY SLACKmiddot AFFIDAVIT
CLOSING ARGUMENTS
21
000022
WillIam Crawford
PalY Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted tettE3FDate Party Submitted Letter Date
Industry Enhancement (PIE) Certification Program The evidence shows that to date no such programs have ever existed and no DOCDOH road crew program Ie part of PIE
The employer argued that WVa Code sect23-2-1deflnea employer and sect 2~2-1a defines aemployeeD The employer argued that the claimant Is barred from receiving workers compensation benefits due to his status as an Incarcerated individual at the time of his injury because WVa Code sect23-4-1eb) provides that I[n)otwlthstandlng any provislcm of this code to the contrary no person confined hi a state correctional facility
____-----Dr_JaILwbo-suffersJnJWyen--DudlseaseJnJbeMursUlLand1uuJtlng1mmltlsoLhe( w~ork_____ during the period of confinement whiCh work Is Imposed by the ~dmlnlstratlon of the state correctional facility or Jail and is not suffered during the persons usual employment with his or her usUal employer when not conftnedshall receive benem under the provisions of thl~ chapter for the injury or d~ease
The employer argued that the code 8peclfie$ that an Inmate Is not entitled to workers compenSation If Injured while completing work imposed by the administration ofthe state correctional facility or jail However had he been working in a PIE program he would hav~ been enHtled to workers cC)mpensation beneflts The employer argued that tbe claimants closing argument confirmed this finding- but he argues that his constitutional rights have been violated In response the employer argued th~t the PIE program flowed out of federal leglslatlcm and (hat the clear and rational basis for the requirement that private employers provide workers compensation ooverage for Inmate employees under the Pie program is 80 no unfair advantage la given to the private employer
The employer argued that the olaimants constitutional argument falla and that his only recourse Is to petition the legislature for a change In the current law However the employer argued that any determination by the Court that all Inmates are entitled to workers compensation benefits would slgnlJlcantIy ImpaCt the states budget
29 The claimant flied a Reply to Closing Argument and Exhibits dated August 26 2014 The claimant clarified that his argument based upon the PIE program was based upon the employers affidavit Indicating that program Is dormant He stated that even If the PIE program had remained dormant this did not mean that Inmates were only empioyed by DOH and that statements by the Director of Division of Corrections and the Governors BUdget document clearly state that Inmates are employed In the private sector The claimant attached Exhibit A to this filing and he stated that In this attachment Mr Rubenstein stated that the majority of Inmates -e empoyed In fast food industry and restaurants The claimant again argued that there was a dlaparate treatment between inmates who work for the Department of transportation and those In any kind of private employment and this was a violation of the Canstltudan
30 The employer filed a Response to Closing Argument and exhibits dated September 9 2014 The employer argued that the claimants reply was submitted on
11
000013
WIUlam Crawford JCN 2014016722
August 26 2014 which was filed after the ten day prlod for case summation pursuant to WVa CSR sect 93~1-65 since the time frame expired on August 11 2014
The employer stated that the provlslons of Article 7 of Chapter 25 of the West Virginia Code were drafted to comply with 18 USC sect 1161 (c) the PIE program The federal legislation allOWS state andmiddot local prisons to be exempt from federal restrictions on prisoner-made goods entering Inte_te commerce and allOWS private individuals tn some clrcumst~mces to hire Inmates for production of goods However the Inmates must be paid similar wages 80 as not to allow a private Industry to obtilhlan unfair
------_advantagacomparecUO-the-prlva~sector~-ThaemployJtr--8tatedJbaUmgatiorLl8gamlng_______ 18 OSC sect 1761(0) Is cleaithal Its purpose Is to protect private businesses and that It was not enacted to protect Inmate workers The ernp~oyer cited McMaster v Minnesota 30 F3d 9679811994 US App Lexls 1861816 (8middot CIr Minn 1994)
31 The employer flied a Seoond Closing Argument ~ated MarQh 162015 The employer stated that the Issue was whether the claimant was entitled to receive workers compensation benems after sustainIng an injury while working for DIVIsion of HlghwaY$ on a work crew from the Chal1stQn Work Release Center The employer noted that the claimant signed a Maser Furlough Agreement on November 27 2012 He also signed a Contract for Placement at a Work Release Center His duties WIth DOH were contingent on a Contract for Placement on Road Crew or Community Crew which he signed on November 272012
The employer noted that there were agreements between Department of Corrections and Division of Highways regarding Inmate servk Neither DOH nor DOC conSidered the Inmate workers fo be employees and the contract stated that they were not employees of the State and not entitled to employee benefits Including degworker compens~lljon
The employer argued that the only conditions under which an Inmate is entitled to workers compensation benefits Is if he were placed In a Prison Industry Enhancement (PIE) Certification Program under WVa Codmiddote sect 25-7-14 or sect25-7-16 Ther have never been any PIE programs In West Virginia and so the claimant was not part of this program
The employer responded to the claimants argument that inmates employed in the private sector outside the PIE program and they are coved by workers compensation and thus the noncoverage for inmates such as the claimant Is unconstitutional The employer argued that Ms Slack testified that Correctional Industries operates about 17 production shops In which inmates work Some Inmates from the Charleston Work Release Center assist but none of the (nmates receive benefits Mr stinnett administrator of the Charleston Work Release Centertestlfled that there were criteria for Inmates to be placed at the Work Release Center and there was a running list of Inmates who desired placement When a bed opened an Inmate Is placed there He stated that about 45 Inmates work In private Industry rather than with
12
000014
William Crawford JCN 2014016722
the State The C~nter attempted to get private Jobs for inmates who would ultimately be released In Charleston so that they can continue to work when reJeased
The employer argued that the clalm_nt was barred from receiving workers compensation duetohts Incarceration at the time of his inJury pursuant to WVa Code sect23-4-1e The employer noted that PIE program Inmates are provided coverage by the private employer and that the purpose of this was to Implement federal regulations and protect private businesses from unfair competition Thus there is a clear and rational basis for dlff8f~mces between Inmates wC)fklng for private employers In a PIE program
32 The claimant filed a Supplemental Closing Argument dated March 20 2015 The claimant argued that the statutory framework regarding work- rajease and the provision of beneflt$ and the Implementation of the statute by the Department of Corrections violates the equal protection clause The claimant argued that not only do Inmates who woUld work under the PIE program Of ever Imptemerited) receive workers comperl$ation ~enet1ts but those who are released to work in the private sector receive workers compensation and other benefits The claImant argued that those who work for Department of Highways do not relieve the ame benfllsas those similrly situated Inmates whQ work In private sector jobs and this is discrimination with no reasonabie basis
33 Counsel for the claimant and the employer presented closing arguments at a hearlng on May 5 2015 Cou for the claimant _ated that the Issue was oompensabllityfor an Inmate Who Injured his hand while working for a Division of Highways crew while at a Work Release Center Counsel for the claimant cited State ex ret Boan VS Richardson 482 SE 2d 162 ~Va 1966) IInd argued that the SUpreme Court of Appeals ruled that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In slmUar circumstances and that any suqh statute violates the equal protectlcm clause Art IU SeCtion 10 of the WVa Constitution Counsel stated that had the claimant worked for a private employer he would have been covered j)y workers compensation There are no rules or regulaUons governing whether an Inmate works for DOH or a private employer Thus there Is no rational basiS for how they are assigned Underbn the elaimant argued he has been wrongfully dlscrfmlnated against
The employer stated that the claimant was barred frQm receiving workers compensatlc)O WVa Code sect23-4-1e(b) He was an Inmate subject to confinement and was not In a PIE program which Is an exception The participant Inmates are stUI Incarcerated While In the Work Release program The OOJ has no authority to decide the statute Is Constitutional The claimants remedy Is to convince the state legislature to change the statute Counsel for the employer stated that his mecilcal bills were covred by Department of Corrections Counsel argued that the OOJ must affirm the Order Counsel Indicated that once paroled the claimant was not eligible for further medIcal treatment to be paid by Department of Corrections
13
000015
William Crawford JCN 2014016722
DISCUSSION
This case Is before the OffIce of Judges based on a protest to the Order regarding tbe compensElbllltyof the claim W- Virgins Code -523-4-1 provides for benefits to employees who receive an Injury In the course of and as a result of their covered employment The more preci$e $Sue presented hre Is whether the claimant Is entitled to benefits for an InjJJry he received while he waS an inmate working on a crew pursuant to agreements between himselfi the Department of corrections and DMslon of Highways
i ---------------------------------------------------------------------~-
W Va Code sect23-4-1 9 provides that for all awards made on and after July 1 I 2003 the resolution of any Issue shall be ba~ upon a weighing of atl evldenoe pertelnlng -lothe Issue and a finding that8 preponderance of themiddot evidence supportsmiddot the chosen manner of resolution The process of weighing evld~nce $hall include ~ut not be limited to an assessmei1t of the r~lecC credlblRty materiality and rellabllty that the evidence possesses In the context of the Issue presented No Issue may be resolved by allOWing certain evidence to be diSpositive Simply because It Is reflable and Is mosJ favor-ble to a partys Intrests or position The resolution of Issues n claims for compensation must be decided on the merits and not according to any prinCiple that requir statut governing workers ~ompeJS~lon to be Ilb~rally conStrued because th~V are remedialili natute If after weighing all of the evidence regarding an Issue there Is a finding that an equal amount of evidentiary weight ~$ for each side the resoltiQcm that is most con$lstent With the claUnant$ position Will be adopted
Preponderence of the evldenQe means proof that $omethlng Is more likely 80 thail nbt ~o In other words a preponderance Of the evidence means such evidence when considered and compared with opposing evidence Is more pe~uaslve or convincing Pre~nderance of the evidence may not be determined by merely counting the number of witnesses reports evaluations or other items of evidence Rathermiddotft Is datennlned by assessing the persaslven8$Sof the evidence Includlng the opportUnity for knowledge Information possessed and manner of testifying or reporting
While working on a highway crew on March 282013 the claiment badly Injured his hand In a wood chipper While there are some variances In the claimants statements compared to witneamp$ statements about the particulars of the InJury none of those differences would change the outcome of this Decision and thus are not relevant to the discussion There Is no dispute that the claimant was Injured as a result of his work on the road crew while he was an inmate at the Charleston Work Release Centr His inJuries fe$ulted In surgery and hospitalization at CAMC where his medical bills In e)(cees of $90000 were paId by the Department of Corrections He was paroled soon after he was released from the hospital
The claim was rejected by an Order dated November 15 2013 which denied the application for benefits as it was determined that he did not sustain an Injury In the course of and resulting from his employment The claim administrators Investigation
14
000016
WilHam Crawford JON 2014016722
Inmates and that they must pay them the same wages non-Inmate workers and they must provide workers compensation coverage for them (See deposition of Jeff stinnett Administrator of the Charleston Work Release Center dated February 5 2015) Most of the private employment of Inmates 18 In fast food reurants grocery stores and factorieS Bobby WIlliams a case manager at the Charleston Work Release Center testified on March 31 2015 that he talked tolnmat~ to see If they wanted to work on a DOH crew He said that to m It made sense to place inmates In posiUons In the community In which they would be released The claimant was to be paroled to Hardy County which Is not within a driving distance to Charleston
The claimant argued that there were no rules or regJlations that would determine -shywhether an Inmate was placed In a private companymiddot or with DOH However this placement- would middotdetermln their fate If -they were InJured While on work refeaee Counsel for the claimant argued that this disparate treatment was discriminatory Counsel cited the West Virginia Supreme Court of Appeals holding In State ex ret Boan YS RlcIDardson 482 se 2d 162 ~va 1966) In which the court held that a workers compensation statute atfeQtlng economic rights may not be used to discriminate among a class of In~lvl~uals In similar circumstances and that any such statute violates the equal protection clause Art IU Section 10 of ttle WVa Constitution The Court stated that ~ would look to whe~her the classffication was rational and Qbased on socliil economic historic or geographIc factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally Id at 164 The claimant argued that he was a inmbar of Incarcerated prisoners in Which all persons weranot treated equally In that some qualified for workers compensation coverage and others did not
There Is no disagreement In this case that W Va Code sect23-4-1e(b) bars the claimant frC)O1 r~elpt of workers compensation benefltB The claimant argues that this law Is unconstltutlonal The Offlce of Judges Is not an Article III Court and does not have jurisdiction to rule a sttule is unconstitutional Therefore itmiddot1S found that the Order properly rejected the claim pursuant to W Va Code sect23-41e(b)
CONCWSlONS OF LAW
Pursuant to W Va Code sect23-4-1e(b) the claimant is ineligible to receive workers compensation benefits fer an Injury he received while In a Work Release Center performing work for Division of Highways In accordance With agreements with Department of Corrections
It Is therefore ORDERED that the Claim Administrators Order dated November 152013 be AFFIRMED
16
000017
William Crawford JON 2014016722
APPEAL RIGHTS
Under the provisions of WVa Code sect23-5-12 any aggrieved party may file a written appeal wlthlnthJrty (30) days after receipt of any decision or action of the Administrative Law Judge The appeal shall be filed ~Irectly with the Workrs Compensation Board of Review at PO Box 2828 Cha~eston WV 263~9
Date July 6bull 2015
RibcCca S CharI Administrative Law ludp
RSCQtc
cc WILUAM F CRAWFORD JOHN HENRY SKAGGS -COUNSEL FOR CLAIMANT DEPT OF CORRECTIONS-WORK RELEASE LISA WARNER HUNTER - COUNSEL FOR EMPLOYER AMERiCAN ZURICH INS CO
17
000018
William Crawford JCN 2014016722
JCN
Date
2014016722
July 6 2015
ReconJ Considered
The Clalmanfs protest to the Claims Administrators order Of regarding REJECTION OF CLAIM
November 15 2013
EVIDENCE SUBMITTED
Claimant Evidence
Document Type Not Specified Document Date 11112000 Submit Date 6Q012014 Author EMPlOYERICLAIMANT - WORK AGREEMENT
DoaIment Type NotSpepified Document Date 1112OQ4 Submit Date 612012014 Author WV DIVISIONS OF CORRECTIONS - POUCY
OIRECnVE
Document Type Not Specified Document Date 41112006 Submit Date 612012014 Author CHIPPERISHREDOER SAFElY - K-STATE
ARTICLE
Document Type Oocum~nt Dale Submit Date
Not Specified 41612008 612012014
18
000019
Willism Crawford JON 2014016722
Author HAZARDS OF WOOD CHIPPERS - OSHAOOV
Document Type Not-Specified Document Date 7112010 Submit Date 812612014 Author DIVISION OF CORRECTIONS-2010 EXECUTIVE BUDGET
STATEMENT
Document Type Not Specified-----DocumenrDste=------r71t212010----------------------- ----
Submit Date 812612014 Author NEWSPAPER ARTICLE~DEPTOF CORR~CTIONS
Document Type NotSpecified Oocument Date 412612012 Submit 08te612012014 Author CONVICT WORKFoRCE AGREEMENT
Document Type -Not Specifted Document pate 4I26J2012 Submit Date 812012014 Author CLAIMANT - CONTRACT FOR PLACEMENT
Document Type NotSpeCified [)(lcument Date 1112612012 Submit Date 1123i2014 Author WORK RELEASE RECORD (111261122-19-13)
Document Type Not Speclfjed Document Date 1112712012 Submit Date 112312014 Author CONTRACTIPLACEMENT ON ROADCOMMUNITV
CREW
Document Type Not Specified Document Date 312812013 Submit Date 112312014 Author DUTY OFFICER REPORT
Document Type Not Specified Document Date 32812013 Submit Date 1232014 Author INCIDENT REPORT WITH ATTACHED MEDICATION
FORMS
19
000020
William Crawford JCN2014016722
Document Type Not Specified Document Dale 4412013 Submit Date 112312014 Author WILLIAM CRAWFO~D ~ STATEMENT
Document Type Not Specified DocUment Dale 412512013 Submit Date 611912014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 121102013 Submit Date 1l23t014 Aulhor CLAIMANTS DEPT OF CORRECTIONS FILE
Document Type Not Specified Document Date 12312014 Submit Date 112312014 Author CLAIMANT - CONTRACT PLACEMENTIWORK RELEASE
CENTER-UNDATED
Document Type NotSpeclfied Document De 113112014 Submit Date 2412014 Author EMPLOYER INTERROGATORIES
Document Type Not Specified Document Date 62312014 Submit Date 012312014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 12118204 Submit Date 11412015 Author BETIY SLACKmiddot DEPOSITION
Document Type Not Specified Document Date 21512015 Submit Date 212612015 Author JEFF STINNETTmiddot DEPOSITION WIEXHIBiTS
Document Type Not Specified Document Date 313112015 Submit Date 412212015 Author BOBBY WILUAMS - DEPOSITION
20
000021
JCN 2014016722WlUlam Crawford
Emglgyer Evid8DC8
Document Type Npt Specified ------f)ocumentDate--tlf2mo2-------------------- shy
$lIbmiiOate 73112014 Author WORK RELEASE STATUS MASTER FURLOUGH
AGREEMENT
Document Type Not Sp~lfied Document Date 312812013 Submit Date 713112014 Author OFFICE OF WV AUDITORmiddot FINANCIAL INFO MANAGEMENT
SYSTEM INVOICE SHEETS
Document Type Not Specified Document Date 312812013 Subinlt Date 713112014 Author DARRELL SIGMON - STATEMENT
Document Type Not Specified Document Date 31282013 Submit Date 713112014 Author ROCKY pARSONSmiddot STATEMENT
D~umentType Not Specified Document Date 612312014 Submit Date 713112014 Author BETTY SLACKmiddot AFFIDAVIT
CLOSING ARGUMENTS
21
000022
WillIam Crawford
PalY Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted tettE3FDate Party Submitted Letter Date
August 26 2014 which was filed after the ten day prlod for case summation pursuant to WVa CSR sect 93~1-65 since the time frame expired on August 11 2014
The employer stated that the provlslons of Article 7 of Chapter 25 of the West Virginia Code were drafted to comply with 18 USC sect 1161 (c) the PIE program The federal legislation allOWS state andmiddot local prisons to be exempt from federal restrictions on prisoner-made goods entering Inte_te commerce and allOWS private individuals tn some clrcumst~mces to hire Inmates for production of goods However the Inmates must be paid similar wages 80 as not to allow a private Industry to obtilhlan unfair
------_advantagacomparecUO-the-prlva~sector~-ThaemployJtr--8tatedJbaUmgatiorLl8gamlng_______ 18 OSC sect 1761(0) Is cleaithal Its purpose Is to protect private businesses and that It was not enacted to protect Inmate workers The ernp~oyer cited McMaster v Minnesota 30 F3d 9679811994 US App Lexls 1861816 (8middot CIr Minn 1994)
31 The employer flied a Seoond Closing Argument ~ated MarQh 162015 The employer stated that the Issue was whether the claimant was entitled to receive workers compensation benems after sustainIng an injury while working for DIVIsion of HlghwaY$ on a work crew from the Chal1stQn Work Release Center The employer noted that the claimant signed a Maser Furlough Agreement on November 27 2012 He also signed a Contract for Placement at a Work Release Center His duties WIth DOH were contingent on a Contract for Placement on Road Crew or Community Crew which he signed on November 272012
The employer noted that there were agreements between Department of Corrections and Division of Highways regarding Inmate servk Neither DOH nor DOC conSidered the Inmate workers fo be employees and the contract stated that they were not employees of the State and not entitled to employee benefits Including degworker compens~lljon
The employer argued that the only conditions under which an Inmate is entitled to workers compensation benefits Is if he were placed In a Prison Industry Enhancement (PIE) Certification Program under WVa Codmiddote sect 25-7-14 or sect25-7-16 Ther have never been any PIE programs In West Virginia and so the claimant was not part of this program
The employer responded to the claimants argument that inmates employed in the private sector outside the PIE program and they are coved by workers compensation and thus the noncoverage for inmates such as the claimant Is unconstitutional The employer argued that Ms Slack testified that Correctional Industries operates about 17 production shops In which inmates work Some Inmates from the Charleston Work Release Center assist but none of the (nmates receive benefits Mr stinnett administrator of the Charleston Work Release Centertestlfled that there were criteria for Inmates to be placed at the Work Release Center and there was a running list of Inmates who desired placement When a bed opened an Inmate Is placed there He stated that about 45 Inmates work In private Industry rather than with
12
000014
William Crawford JCN 2014016722
the State The C~nter attempted to get private Jobs for inmates who would ultimately be released In Charleston so that they can continue to work when reJeased
The employer argued that the clalm_nt was barred from receiving workers compensation duetohts Incarceration at the time of his inJury pursuant to WVa Code sect23-4-1e The employer noted that PIE program Inmates are provided coverage by the private employer and that the purpose of this was to Implement federal regulations and protect private businesses from unfair competition Thus there is a clear and rational basis for dlff8f~mces between Inmates wC)fklng for private employers In a PIE program
32 The claimant filed a Supplemental Closing Argument dated March 20 2015 The claimant argued that the statutory framework regarding work- rajease and the provision of beneflt$ and the Implementation of the statute by the Department of Corrections violates the equal protection clause The claimant argued that not only do Inmates who woUld work under the PIE program Of ever Imptemerited) receive workers comperl$ation ~enet1ts but those who are released to work in the private sector receive workers compensation and other benefits The claImant argued that those who work for Department of Highways do not relieve the ame benfllsas those similrly situated Inmates whQ work In private sector jobs and this is discrimination with no reasonabie basis
33 Counsel for the claimant and the employer presented closing arguments at a hearlng on May 5 2015 Cou for the claimant _ated that the Issue was oompensabllityfor an Inmate Who Injured his hand while working for a Division of Highways crew while at a Work Release Center Counsel for the claimant cited State ex ret Boan VS Richardson 482 SE 2d 162 ~Va 1966) IInd argued that the SUpreme Court of Appeals ruled that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In slmUar circumstances and that any suqh statute violates the equal protectlcm clause Art IU SeCtion 10 of the WVa Constitution Counsel stated that had the claimant worked for a private employer he would have been covered j)y workers compensation There are no rules or regulaUons governing whether an Inmate works for DOH or a private employer Thus there Is no rational basiS for how they are assigned Underbn the elaimant argued he has been wrongfully dlscrfmlnated against
The employer stated that the claimant was barred frQm receiving workers compensatlc)O WVa Code sect23-4-1e(b) He was an Inmate subject to confinement and was not In a PIE program which Is an exception The participant Inmates are stUI Incarcerated While In the Work Release program The OOJ has no authority to decide the statute Is Constitutional The claimants remedy Is to convince the state legislature to change the statute Counsel for the employer stated that his mecilcal bills were covred by Department of Corrections Counsel argued that the OOJ must affirm the Order Counsel Indicated that once paroled the claimant was not eligible for further medIcal treatment to be paid by Department of Corrections
13
000015
William Crawford JCN 2014016722
DISCUSSION
This case Is before the OffIce of Judges based on a protest to the Order regarding tbe compensElbllltyof the claim W- Virgins Code -523-4-1 provides for benefits to employees who receive an Injury In the course of and as a result of their covered employment The more preci$e $Sue presented hre Is whether the claimant Is entitled to benefits for an InjJJry he received while he waS an inmate working on a crew pursuant to agreements between himselfi the Department of corrections and DMslon of Highways
i ---------------------------------------------------------------------~-
W Va Code sect23-4-1 9 provides that for all awards made on and after July 1 I 2003 the resolution of any Issue shall be ba~ upon a weighing of atl evldenoe pertelnlng -lothe Issue and a finding that8 preponderance of themiddot evidence supportsmiddot the chosen manner of resolution The process of weighing evld~nce $hall include ~ut not be limited to an assessmei1t of the r~lecC credlblRty materiality and rellabllty that the evidence possesses In the context of the Issue presented No Issue may be resolved by allOWing certain evidence to be diSpositive Simply because It Is reflable and Is mosJ favor-ble to a partys Intrests or position The resolution of Issues n claims for compensation must be decided on the merits and not according to any prinCiple that requir statut governing workers ~ompeJS~lon to be Ilb~rally conStrued because th~V are remedialili natute If after weighing all of the evidence regarding an Issue there Is a finding that an equal amount of evidentiary weight ~$ for each side the resoltiQcm that is most con$lstent With the claUnant$ position Will be adopted
Preponderence of the evldenQe means proof that $omethlng Is more likely 80 thail nbt ~o In other words a preponderance Of the evidence means such evidence when considered and compared with opposing evidence Is more pe~uaslve or convincing Pre~nderance of the evidence may not be determined by merely counting the number of witnesses reports evaluations or other items of evidence Rathermiddotft Is datennlned by assessing the persaslven8$Sof the evidence Includlng the opportUnity for knowledge Information possessed and manner of testifying or reporting
While working on a highway crew on March 282013 the claiment badly Injured his hand In a wood chipper While there are some variances In the claimants statements compared to witneamp$ statements about the particulars of the InJury none of those differences would change the outcome of this Decision and thus are not relevant to the discussion There Is no dispute that the claimant was Injured as a result of his work on the road crew while he was an inmate at the Charleston Work Release Centr His inJuries fe$ulted In surgery and hospitalization at CAMC where his medical bills In e)(cees of $90000 were paId by the Department of Corrections He was paroled soon after he was released from the hospital
The claim was rejected by an Order dated November 15 2013 which denied the application for benefits as it was determined that he did not sustain an Injury In the course of and resulting from his employment The claim administrators Investigation
14
000016
WilHam Crawford JON 2014016722
Inmates and that they must pay them the same wages non-Inmate workers and they must provide workers compensation coverage for them (See deposition of Jeff stinnett Administrator of the Charleston Work Release Center dated February 5 2015) Most of the private employment of Inmates 18 In fast food reurants grocery stores and factorieS Bobby WIlliams a case manager at the Charleston Work Release Center testified on March 31 2015 that he talked tolnmat~ to see If they wanted to work on a DOH crew He said that to m It made sense to place inmates In posiUons In the community In which they would be released The claimant was to be paroled to Hardy County which Is not within a driving distance to Charleston
The claimant argued that there were no rules or regJlations that would determine -shywhether an Inmate was placed In a private companymiddot or with DOH However this placement- would middotdetermln their fate If -they were InJured While on work refeaee Counsel for the claimant argued that this disparate treatment was discriminatory Counsel cited the West Virginia Supreme Court of Appeals holding In State ex ret Boan YS RlcIDardson 482 se 2d 162 ~va 1966) In which the court held that a workers compensation statute atfeQtlng economic rights may not be used to discriminate among a class of In~lvl~uals In similar circumstances and that any such statute violates the equal protection clause Art IU Section 10 of ttle WVa Constitution The Court stated that ~ would look to whe~her the classffication was rational and Qbased on socliil economic historic or geographIc factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally Id at 164 The claimant argued that he was a inmbar of Incarcerated prisoners in Which all persons weranot treated equally In that some qualified for workers compensation coverage and others did not
There Is no disagreement In this case that W Va Code sect23-4-1e(b) bars the claimant frC)O1 r~elpt of workers compensation benefltB The claimant argues that this law Is unconstltutlonal The Offlce of Judges Is not an Article III Court and does not have jurisdiction to rule a sttule is unconstitutional Therefore itmiddot1S found that the Order properly rejected the claim pursuant to W Va Code sect23-41e(b)
CONCWSlONS OF LAW
Pursuant to W Va Code sect23-4-1e(b) the claimant is ineligible to receive workers compensation benefits fer an Injury he received while In a Work Release Center performing work for Division of Highways In accordance With agreements with Department of Corrections
It Is therefore ORDERED that the Claim Administrators Order dated November 152013 be AFFIRMED
16
000017
William Crawford JON 2014016722
APPEAL RIGHTS
Under the provisions of WVa Code sect23-5-12 any aggrieved party may file a written appeal wlthlnthJrty (30) days after receipt of any decision or action of the Administrative Law Judge The appeal shall be filed ~Irectly with the Workrs Compensation Board of Review at PO Box 2828 Cha~eston WV 263~9
Date July 6bull 2015
RibcCca S CharI Administrative Law ludp
RSCQtc
cc WILUAM F CRAWFORD JOHN HENRY SKAGGS -COUNSEL FOR CLAIMANT DEPT OF CORRECTIONS-WORK RELEASE LISA WARNER HUNTER - COUNSEL FOR EMPLOYER AMERiCAN ZURICH INS CO
17
000018
William Crawford JCN 2014016722
JCN
Date
2014016722
July 6 2015
ReconJ Considered
The Clalmanfs protest to the Claims Administrators order Of regarding REJECTION OF CLAIM
November 15 2013
EVIDENCE SUBMITTED
Claimant Evidence
Document Type Not Specified Document Date 11112000 Submit Date 6Q012014 Author EMPlOYERICLAIMANT - WORK AGREEMENT
DoaIment Type NotSpepified Document Date 1112OQ4 Submit Date 612012014 Author WV DIVISIONS OF CORRECTIONS - POUCY
OIRECnVE
Document Type Not Specified Document Date 41112006 Submit Date 612012014 Author CHIPPERISHREDOER SAFElY - K-STATE
ARTICLE
Document Type Oocum~nt Dale Submit Date
Not Specified 41612008 612012014
18
000019
Willism Crawford JON 2014016722
Author HAZARDS OF WOOD CHIPPERS - OSHAOOV
Document Type Not-Specified Document Date 7112010 Submit Date 812612014 Author DIVISION OF CORRECTIONS-2010 EXECUTIVE BUDGET
STATEMENT
Document Type Not Specified-----DocumenrDste=------r71t212010----------------------- ----
Submit Date 812612014 Author NEWSPAPER ARTICLE~DEPTOF CORR~CTIONS
Document Type NotSpecified Oocument Date 412612012 Submit 08te612012014 Author CONVICT WORKFoRCE AGREEMENT
Document Type -Not Specifted Document pate 4I26J2012 Submit Date 812012014 Author CLAIMANT - CONTRACT FOR PLACEMENT
Document Type NotSpeCified [)(lcument Date 1112612012 Submit Date 1123i2014 Author WORK RELEASE RECORD (111261122-19-13)
Document Type Not Speclfjed Document Date 1112712012 Submit Date 112312014 Author CONTRACTIPLACEMENT ON ROADCOMMUNITV
CREW
Document Type Not Specified Document Date 312812013 Submit Date 112312014 Author DUTY OFFICER REPORT
Document Type Not Specified Document Date 32812013 Submit Date 1232014 Author INCIDENT REPORT WITH ATTACHED MEDICATION
FORMS
19
000020
William Crawford JCN2014016722
Document Type Not Specified Document Dale 4412013 Submit Date 112312014 Author WILLIAM CRAWFO~D ~ STATEMENT
Document Type Not Specified DocUment Dale 412512013 Submit Date 611912014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 121102013 Submit Date 1l23t014 Aulhor CLAIMANTS DEPT OF CORRECTIONS FILE
Document Type Not Specified Document Date 12312014 Submit Date 112312014 Author CLAIMANT - CONTRACT PLACEMENTIWORK RELEASE
CENTER-UNDATED
Document Type NotSpeclfied Document De 113112014 Submit Date 2412014 Author EMPLOYER INTERROGATORIES
Document Type Not Specified Document Date 62312014 Submit Date 012312014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 12118204 Submit Date 11412015 Author BETIY SLACKmiddot DEPOSITION
Document Type Not Specified Document Date 21512015 Submit Date 212612015 Author JEFF STINNETTmiddot DEPOSITION WIEXHIBiTS
Document Type Not Specified Document Date 313112015 Submit Date 412212015 Author BOBBY WILUAMS - DEPOSITION
20
000021
JCN 2014016722WlUlam Crawford
Emglgyer Evid8DC8
Document Type Npt Specified ------f)ocumentDate--tlf2mo2-------------------- shy
$lIbmiiOate 73112014 Author WORK RELEASE STATUS MASTER FURLOUGH
AGREEMENT
Document Type Not Sp~lfied Document Date 312812013 Submit Date 713112014 Author OFFICE OF WV AUDITORmiddot FINANCIAL INFO MANAGEMENT
SYSTEM INVOICE SHEETS
Document Type Not Specified Document Date 312812013 Subinlt Date 713112014 Author DARRELL SIGMON - STATEMENT
Document Type Not Specified Document Date 31282013 Submit Date 713112014 Author ROCKY pARSONSmiddot STATEMENT
D~umentType Not Specified Document Date 612312014 Submit Date 713112014 Author BETTY SLACKmiddot AFFIDAVIT
CLOSING ARGUMENTS
21
000022
WillIam Crawford
PalY Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted tettE3FDate Party Submitted Letter Date
the State The C~nter attempted to get private Jobs for inmates who would ultimately be released In Charleston so that they can continue to work when reJeased
The employer argued that the clalm_nt was barred from receiving workers compensation duetohts Incarceration at the time of his inJury pursuant to WVa Code sect23-4-1e The employer noted that PIE program Inmates are provided coverage by the private employer and that the purpose of this was to Implement federal regulations and protect private businesses from unfair competition Thus there is a clear and rational basis for dlff8f~mces between Inmates wC)fklng for private employers In a PIE program
32 The claimant filed a Supplemental Closing Argument dated March 20 2015 The claimant argued that the statutory framework regarding work- rajease and the provision of beneflt$ and the Implementation of the statute by the Department of Corrections violates the equal protection clause The claimant argued that not only do Inmates who woUld work under the PIE program Of ever Imptemerited) receive workers comperl$ation ~enet1ts but those who are released to work in the private sector receive workers compensation and other benefits The claImant argued that those who work for Department of Highways do not relieve the ame benfllsas those similrly situated Inmates whQ work In private sector jobs and this is discrimination with no reasonabie basis
33 Counsel for the claimant and the employer presented closing arguments at a hearlng on May 5 2015 Cou for the claimant _ated that the Issue was oompensabllityfor an Inmate Who Injured his hand while working for a Division of Highways crew while at a Work Release Center Counsel for the claimant cited State ex ret Boan VS Richardson 482 SE 2d 162 ~Va 1966) IInd argued that the SUpreme Court of Appeals ruled that a workers compensation statute affecting economic rights may not be used to discriminate among a class of Individuals In slmUar circumstances and that any suqh statute violates the equal protectlcm clause Art IU SeCtion 10 of the WVa Constitution Counsel stated that had the claimant worked for a private employer he would have been covered j)y workers compensation There are no rules or regulaUons governing whether an Inmate works for DOH or a private employer Thus there Is no rational basiS for how they are assigned Underbn the elaimant argued he has been wrongfully dlscrfmlnated against
The employer stated that the claimant was barred frQm receiving workers compensatlc)O WVa Code sect23-4-1e(b) He was an Inmate subject to confinement and was not In a PIE program which Is an exception The participant Inmates are stUI Incarcerated While In the Work Release program The OOJ has no authority to decide the statute Is Constitutional The claimants remedy Is to convince the state legislature to change the statute Counsel for the employer stated that his mecilcal bills were covred by Department of Corrections Counsel argued that the OOJ must affirm the Order Counsel Indicated that once paroled the claimant was not eligible for further medIcal treatment to be paid by Department of Corrections
13
000015
William Crawford JCN 2014016722
DISCUSSION
This case Is before the OffIce of Judges based on a protest to the Order regarding tbe compensElbllltyof the claim W- Virgins Code -523-4-1 provides for benefits to employees who receive an Injury In the course of and as a result of their covered employment The more preci$e $Sue presented hre Is whether the claimant Is entitled to benefits for an InjJJry he received while he waS an inmate working on a crew pursuant to agreements between himselfi the Department of corrections and DMslon of Highways
i ---------------------------------------------------------------------~-
W Va Code sect23-4-1 9 provides that for all awards made on and after July 1 I 2003 the resolution of any Issue shall be ba~ upon a weighing of atl evldenoe pertelnlng -lothe Issue and a finding that8 preponderance of themiddot evidence supportsmiddot the chosen manner of resolution The process of weighing evld~nce $hall include ~ut not be limited to an assessmei1t of the r~lecC credlblRty materiality and rellabllty that the evidence possesses In the context of the Issue presented No Issue may be resolved by allOWing certain evidence to be diSpositive Simply because It Is reflable and Is mosJ favor-ble to a partys Intrests or position The resolution of Issues n claims for compensation must be decided on the merits and not according to any prinCiple that requir statut governing workers ~ompeJS~lon to be Ilb~rally conStrued because th~V are remedialili natute If after weighing all of the evidence regarding an Issue there Is a finding that an equal amount of evidentiary weight ~$ for each side the resoltiQcm that is most con$lstent With the claUnant$ position Will be adopted
Preponderence of the evldenQe means proof that $omethlng Is more likely 80 thail nbt ~o In other words a preponderance Of the evidence means such evidence when considered and compared with opposing evidence Is more pe~uaslve or convincing Pre~nderance of the evidence may not be determined by merely counting the number of witnesses reports evaluations or other items of evidence Rathermiddotft Is datennlned by assessing the persaslven8$Sof the evidence Includlng the opportUnity for knowledge Information possessed and manner of testifying or reporting
While working on a highway crew on March 282013 the claiment badly Injured his hand In a wood chipper While there are some variances In the claimants statements compared to witneamp$ statements about the particulars of the InJury none of those differences would change the outcome of this Decision and thus are not relevant to the discussion There Is no dispute that the claimant was Injured as a result of his work on the road crew while he was an inmate at the Charleston Work Release Centr His inJuries fe$ulted In surgery and hospitalization at CAMC where his medical bills In e)(cees of $90000 were paId by the Department of Corrections He was paroled soon after he was released from the hospital
The claim was rejected by an Order dated November 15 2013 which denied the application for benefits as it was determined that he did not sustain an Injury In the course of and resulting from his employment The claim administrators Investigation
14
000016
WilHam Crawford JON 2014016722
Inmates and that they must pay them the same wages non-Inmate workers and they must provide workers compensation coverage for them (See deposition of Jeff stinnett Administrator of the Charleston Work Release Center dated February 5 2015) Most of the private employment of Inmates 18 In fast food reurants grocery stores and factorieS Bobby WIlliams a case manager at the Charleston Work Release Center testified on March 31 2015 that he talked tolnmat~ to see If they wanted to work on a DOH crew He said that to m It made sense to place inmates In posiUons In the community In which they would be released The claimant was to be paroled to Hardy County which Is not within a driving distance to Charleston
The claimant argued that there were no rules or regJlations that would determine -shywhether an Inmate was placed In a private companymiddot or with DOH However this placement- would middotdetermln their fate If -they were InJured While on work refeaee Counsel for the claimant argued that this disparate treatment was discriminatory Counsel cited the West Virginia Supreme Court of Appeals holding In State ex ret Boan YS RlcIDardson 482 se 2d 162 ~va 1966) In which the court held that a workers compensation statute atfeQtlng economic rights may not be used to discriminate among a class of In~lvl~uals In similar circumstances and that any such statute violates the equal protection clause Art IU Section 10 of ttle WVa Constitution The Court stated that ~ would look to whe~her the classffication was rational and Qbased on socliil economic historic or geographIc factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally Id at 164 The claimant argued that he was a inmbar of Incarcerated prisoners in Which all persons weranot treated equally In that some qualified for workers compensation coverage and others did not
There Is no disagreement In this case that W Va Code sect23-4-1e(b) bars the claimant frC)O1 r~elpt of workers compensation benefltB The claimant argues that this law Is unconstltutlonal The Offlce of Judges Is not an Article III Court and does not have jurisdiction to rule a sttule is unconstitutional Therefore itmiddot1S found that the Order properly rejected the claim pursuant to W Va Code sect23-41e(b)
CONCWSlONS OF LAW
Pursuant to W Va Code sect23-4-1e(b) the claimant is ineligible to receive workers compensation benefits fer an Injury he received while In a Work Release Center performing work for Division of Highways In accordance With agreements with Department of Corrections
It Is therefore ORDERED that the Claim Administrators Order dated November 152013 be AFFIRMED
16
000017
William Crawford JON 2014016722
APPEAL RIGHTS
Under the provisions of WVa Code sect23-5-12 any aggrieved party may file a written appeal wlthlnthJrty (30) days after receipt of any decision or action of the Administrative Law Judge The appeal shall be filed ~Irectly with the Workrs Compensation Board of Review at PO Box 2828 Cha~eston WV 263~9
Date July 6bull 2015
RibcCca S CharI Administrative Law ludp
RSCQtc
cc WILUAM F CRAWFORD JOHN HENRY SKAGGS -COUNSEL FOR CLAIMANT DEPT OF CORRECTIONS-WORK RELEASE LISA WARNER HUNTER - COUNSEL FOR EMPLOYER AMERiCAN ZURICH INS CO
17
000018
William Crawford JCN 2014016722
JCN
Date
2014016722
July 6 2015
ReconJ Considered
The Clalmanfs protest to the Claims Administrators order Of regarding REJECTION OF CLAIM
November 15 2013
EVIDENCE SUBMITTED
Claimant Evidence
Document Type Not Specified Document Date 11112000 Submit Date 6Q012014 Author EMPlOYERICLAIMANT - WORK AGREEMENT
DoaIment Type NotSpepified Document Date 1112OQ4 Submit Date 612012014 Author WV DIVISIONS OF CORRECTIONS - POUCY
OIRECnVE
Document Type Not Specified Document Date 41112006 Submit Date 612012014 Author CHIPPERISHREDOER SAFElY - K-STATE
ARTICLE
Document Type Oocum~nt Dale Submit Date
Not Specified 41612008 612012014
18
000019
Willism Crawford JON 2014016722
Author HAZARDS OF WOOD CHIPPERS - OSHAOOV
Document Type Not-Specified Document Date 7112010 Submit Date 812612014 Author DIVISION OF CORRECTIONS-2010 EXECUTIVE BUDGET
STATEMENT
Document Type Not Specified-----DocumenrDste=------r71t212010----------------------- ----
Submit Date 812612014 Author NEWSPAPER ARTICLE~DEPTOF CORR~CTIONS
Document Type NotSpecified Oocument Date 412612012 Submit 08te612012014 Author CONVICT WORKFoRCE AGREEMENT
Document Type -Not Specifted Document pate 4I26J2012 Submit Date 812012014 Author CLAIMANT - CONTRACT FOR PLACEMENT
Document Type NotSpeCified [)(lcument Date 1112612012 Submit Date 1123i2014 Author WORK RELEASE RECORD (111261122-19-13)
Document Type Not Speclfjed Document Date 1112712012 Submit Date 112312014 Author CONTRACTIPLACEMENT ON ROADCOMMUNITV
CREW
Document Type Not Specified Document Date 312812013 Submit Date 112312014 Author DUTY OFFICER REPORT
Document Type Not Specified Document Date 32812013 Submit Date 1232014 Author INCIDENT REPORT WITH ATTACHED MEDICATION
FORMS
19
000020
William Crawford JCN2014016722
Document Type Not Specified Document Dale 4412013 Submit Date 112312014 Author WILLIAM CRAWFO~D ~ STATEMENT
Document Type Not Specified DocUment Dale 412512013 Submit Date 611912014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 121102013 Submit Date 1l23t014 Aulhor CLAIMANTS DEPT OF CORRECTIONS FILE
Document Type Not Specified Document Date 12312014 Submit Date 112312014 Author CLAIMANT - CONTRACT PLACEMENTIWORK RELEASE
CENTER-UNDATED
Document Type NotSpeclfied Document De 113112014 Submit Date 2412014 Author EMPLOYER INTERROGATORIES
Document Type Not Specified Document Date 62312014 Submit Date 012312014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 12118204 Submit Date 11412015 Author BETIY SLACKmiddot DEPOSITION
Document Type Not Specified Document Date 21512015 Submit Date 212612015 Author JEFF STINNETTmiddot DEPOSITION WIEXHIBiTS
Document Type Not Specified Document Date 313112015 Submit Date 412212015 Author BOBBY WILUAMS - DEPOSITION
20
000021
JCN 2014016722WlUlam Crawford
Emglgyer Evid8DC8
Document Type Npt Specified ------f)ocumentDate--tlf2mo2-------------------- shy
$lIbmiiOate 73112014 Author WORK RELEASE STATUS MASTER FURLOUGH
AGREEMENT
Document Type Not Sp~lfied Document Date 312812013 Submit Date 713112014 Author OFFICE OF WV AUDITORmiddot FINANCIAL INFO MANAGEMENT
SYSTEM INVOICE SHEETS
Document Type Not Specified Document Date 312812013 Subinlt Date 713112014 Author DARRELL SIGMON - STATEMENT
Document Type Not Specified Document Date 31282013 Submit Date 713112014 Author ROCKY pARSONSmiddot STATEMENT
D~umentType Not Specified Document Date 612312014 Submit Date 713112014 Author BETTY SLACKmiddot AFFIDAVIT
CLOSING ARGUMENTS
21
000022
WillIam Crawford
PalY Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted tettE3FDate Party Submitted Letter Date
This case Is before the OffIce of Judges based on a protest to the Order regarding tbe compensElbllltyof the claim W- Virgins Code -523-4-1 provides for benefits to employees who receive an Injury In the course of and as a result of their covered employment The more preci$e $Sue presented hre Is whether the claimant Is entitled to benefits for an InjJJry he received while he waS an inmate working on a crew pursuant to agreements between himselfi the Department of corrections and DMslon of Highways
i ---------------------------------------------------------------------~-
W Va Code sect23-4-1 9 provides that for all awards made on and after July 1 I 2003 the resolution of any Issue shall be ba~ upon a weighing of atl evldenoe pertelnlng -lothe Issue and a finding that8 preponderance of themiddot evidence supportsmiddot the chosen manner of resolution The process of weighing evld~nce $hall include ~ut not be limited to an assessmei1t of the r~lecC credlblRty materiality and rellabllty that the evidence possesses In the context of the Issue presented No Issue may be resolved by allOWing certain evidence to be diSpositive Simply because It Is reflable and Is mosJ favor-ble to a partys Intrests or position The resolution of Issues n claims for compensation must be decided on the merits and not according to any prinCiple that requir statut governing workers ~ompeJS~lon to be Ilb~rally conStrued because th~V are remedialili natute If after weighing all of the evidence regarding an Issue there Is a finding that an equal amount of evidentiary weight ~$ for each side the resoltiQcm that is most con$lstent With the claUnant$ position Will be adopted
Preponderence of the evldenQe means proof that $omethlng Is more likely 80 thail nbt ~o In other words a preponderance Of the evidence means such evidence when considered and compared with opposing evidence Is more pe~uaslve or convincing Pre~nderance of the evidence may not be determined by merely counting the number of witnesses reports evaluations or other items of evidence Rathermiddotft Is datennlned by assessing the persaslven8$Sof the evidence Includlng the opportUnity for knowledge Information possessed and manner of testifying or reporting
While working on a highway crew on March 282013 the claiment badly Injured his hand In a wood chipper While there are some variances In the claimants statements compared to witneamp$ statements about the particulars of the InJury none of those differences would change the outcome of this Decision and thus are not relevant to the discussion There Is no dispute that the claimant was Injured as a result of his work on the road crew while he was an inmate at the Charleston Work Release Centr His inJuries fe$ulted In surgery and hospitalization at CAMC where his medical bills In e)(cees of $90000 were paId by the Department of Corrections He was paroled soon after he was released from the hospital
The claim was rejected by an Order dated November 15 2013 which denied the application for benefits as it was determined that he did not sustain an Injury In the course of and resulting from his employment The claim administrators Investigation
14
000016
WilHam Crawford JON 2014016722
Inmates and that they must pay them the same wages non-Inmate workers and they must provide workers compensation coverage for them (See deposition of Jeff stinnett Administrator of the Charleston Work Release Center dated February 5 2015) Most of the private employment of Inmates 18 In fast food reurants grocery stores and factorieS Bobby WIlliams a case manager at the Charleston Work Release Center testified on March 31 2015 that he talked tolnmat~ to see If they wanted to work on a DOH crew He said that to m It made sense to place inmates In posiUons In the community In which they would be released The claimant was to be paroled to Hardy County which Is not within a driving distance to Charleston
The claimant argued that there were no rules or regJlations that would determine -shywhether an Inmate was placed In a private companymiddot or with DOH However this placement- would middotdetermln their fate If -they were InJured While on work refeaee Counsel for the claimant argued that this disparate treatment was discriminatory Counsel cited the West Virginia Supreme Court of Appeals holding In State ex ret Boan YS RlcIDardson 482 se 2d 162 ~va 1966) In which the court held that a workers compensation statute atfeQtlng economic rights may not be used to discriminate among a class of In~lvl~uals In similar circumstances and that any such statute violates the equal protection clause Art IU Section 10 of ttle WVa Constitution The Court stated that ~ would look to whe~her the classffication was rational and Qbased on socliil economic historic or geographIc factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally Id at 164 The claimant argued that he was a inmbar of Incarcerated prisoners in Which all persons weranot treated equally In that some qualified for workers compensation coverage and others did not
There Is no disagreement In this case that W Va Code sect23-4-1e(b) bars the claimant frC)O1 r~elpt of workers compensation benefltB The claimant argues that this law Is unconstltutlonal The Offlce of Judges Is not an Article III Court and does not have jurisdiction to rule a sttule is unconstitutional Therefore itmiddot1S found that the Order properly rejected the claim pursuant to W Va Code sect23-41e(b)
CONCWSlONS OF LAW
Pursuant to W Va Code sect23-4-1e(b) the claimant is ineligible to receive workers compensation benefits fer an Injury he received while In a Work Release Center performing work for Division of Highways In accordance With agreements with Department of Corrections
It Is therefore ORDERED that the Claim Administrators Order dated November 152013 be AFFIRMED
16
000017
William Crawford JON 2014016722
APPEAL RIGHTS
Under the provisions of WVa Code sect23-5-12 any aggrieved party may file a written appeal wlthlnthJrty (30) days after receipt of any decision or action of the Administrative Law Judge The appeal shall be filed ~Irectly with the Workrs Compensation Board of Review at PO Box 2828 Cha~eston WV 263~9
Date July 6bull 2015
RibcCca S CharI Administrative Law ludp
RSCQtc
cc WILUAM F CRAWFORD JOHN HENRY SKAGGS -COUNSEL FOR CLAIMANT DEPT OF CORRECTIONS-WORK RELEASE LISA WARNER HUNTER - COUNSEL FOR EMPLOYER AMERiCAN ZURICH INS CO
17
000018
William Crawford JCN 2014016722
JCN
Date
2014016722
July 6 2015
ReconJ Considered
The Clalmanfs protest to the Claims Administrators order Of regarding REJECTION OF CLAIM
November 15 2013
EVIDENCE SUBMITTED
Claimant Evidence
Document Type Not Specified Document Date 11112000 Submit Date 6Q012014 Author EMPlOYERICLAIMANT - WORK AGREEMENT
DoaIment Type NotSpepified Document Date 1112OQ4 Submit Date 612012014 Author WV DIVISIONS OF CORRECTIONS - POUCY
OIRECnVE
Document Type Not Specified Document Date 41112006 Submit Date 612012014 Author CHIPPERISHREDOER SAFElY - K-STATE
ARTICLE
Document Type Oocum~nt Dale Submit Date
Not Specified 41612008 612012014
18
000019
Willism Crawford JON 2014016722
Author HAZARDS OF WOOD CHIPPERS - OSHAOOV
Document Type Not-Specified Document Date 7112010 Submit Date 812612014 Author DIVISION OF CORRECTIONS-2010 EXECUTIVE BUDGET
STATEMENT
Document Type Not Specified-----DocumenrDste=------r71t212010----------------------- ----
Submit Date 812612014 Author NEWSPAPER ARTICLE~DEPTOF CORR~CTIONS
Document Type NotSpecified Oocument Date 412612012 Submit 08te612012014 Author CONVICT WORKFoRCE AGREEMENT
Document Type -Not Specifted Document pate 4I26J2012 Submit Date 812012014 Author CLAIMANT - CONTRACT FOR PLACEMENT
Document Type NotSpeCified [)(lcument Date 1112612012 Submit Date 1123i2014 Author WORK RELEASE RECORD (111261122-19-13)
Document Type Not Speclfjed Document Date 1112712012 Submit Date 112312014 Author CONTRACTIPLACEMENT ON ROADCOMMUNITV
CREW
Document Type Not Specified Document Date 312812013 Submit Date 112312014 Author DUTY OFFICER REPORT
Document Type Not Specified Document Date 32812013 Submit Date 1232014 Author INCIDENT REPORT WITH ATTACHED MEDICATION
FORMS
19
000020
William Crawford JCN2014016722
Document Type Not Specified Document Dale 4412013 Submit Date 112312014 Author WILLIAM CRAWFO~D ~ STATEMENT
Document Type Not Specified DocUment Dale 412512013 Submit Date 611912014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 121102013 Submit Date 1l23t014 Aulhor CLAIMANTS DEPT OF CORRECTIONS FILE
Document Type Not Specified Document Date 12312014 Submit Date 112312014 Author CLAIMANT - CONTRACT PLACEMENTIWORK RELEASE
CENTER-UNDATED
Document Type NotSpeclfied Document De 113112014 Submit Date 2412014 Author EMPLOYER INTERROGATORIES
Document Type Not Specified Document Date 62312014 Submit Date 012312014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 12118204 Submit Date 11412015 Author BETIY SLACKmiddot DEPOSITION
Document Type Not Specified Document Date 21512015 Submit Date 212612015 Author JEFF STINNETTmiddot DEPOSITION WIEXHIBiTS
Document Type Not Specified Document Date 313112015 Submit Date 412212015 Author BOBBY WILUAMS - DEPOSITION
20
000021
JCN 2014016722WlUlam Crawford
Emglgyer Evid8DC8
Document Type Npt Specified ------f)ocumentDate--tlf2mo2-------------------- shy
$lIbmiiOate 73112014 Author WORK RELEASE STATUS MASTER FURLOUGH
AGREEMENT
Document Type Not Sp~lfied Document Date 312812013 Submit Date 713112014 Author OFFICE OF WV AUDITORmiddot FINANCIAL INFO MANAGEMENT
SYSTEM INVOICE SHEETS
Document Type Not Specified Document Date 312812013 Subinlt Date 713112014 Author DARRELL SIGMON - STATEMENT
Document Type Not Specified Document Date 31282013 Submit Date 713112014 Author ROCKY pARSONSmiddot STATEMENT
D~umentType Not Specified Document Date 612312014 Submit Date 713112014 Author BETTY SLACKmiddot AFFIDAVIT
CLOSING ARGUMENTS
21
000022
WillIam Crawford
PalY Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted tettE3FDate Party Submitted Letter Date
Inmates and that they must pay them the same wages non-Inmate workers and they must provide workers compensation coverage for them (See deposition of Jeff stinnett Administrator of the Charleston Work Release Center dated February 5 2015) Most of the private employment of Inmates 18 In fast food reurants grocery stores and factorieS Bobby WIlliams a case manager at the Charleston Work Release Center testified on March 31 2015 that he talked tolnmat~ to see If they wanted to work on a DOH crew He said that to m It made sense to place inmates In posiUons In the community In which they would be released The claimant was to be paroled to Hardy County which Is not within a driving distance to Charleston
The claimant argued that there were no rules or regJlations that would determine -shywhether an Inmate was placed In a private companymiddot or with DOH However this placement- would middotdetermln their fate If -they were InJured While on work refeaee Counsel for the claimant argued that this disparate treatment was discriminatory Counsel cited the West Virginia Supreme Court of Appeals holding In State ex ret Boan YS RlcIDardson 482 se 2d 162 ~va 1966) In which the court held that a workers compensation statute atfeQtlng economic rights may not be used to discriminate among a class of In~lvl~uals In similar circumstances and that any such statute violates the equal protection clause Art IU Section 10 of ttle WVa Constitution The Court stated that ~ would look to whe~her the classffication was rational and Qbased on socliil economic historic or geographIc factors whether it bears a reasonable relationship to a proper governmental purpose and whether all persons within the class are treated equally Id at 164 The claimant argued that he was a inmbar of Incarcerated prisoners in Which all persons weranot treated equally In that some qualified for workers compensation coverage and others did not
There Is no disagreement In this case that W Va Code sect23-4-1e(b) bars the claimant frC)O1 r~elpt of workers compensation benefltB The claimant argues that this law Is unconstltutlonal The Offlce of Judges Is not an Article III Court and does not have jurisdiction to rule a sttule is unconstitutional Therefore itmiddot1S found that the Order properly rejected the claim pursuant to W Va Code sect23-41e(b)
CONCWSlONS OF LAW
Pursuant to W Va Code sect23-4-1e(b) the claimant is ineligible to receive workers compensation benefits fer an Injury he received while In a Work Release Center performing work for Division of Highways In accordance With agreements with Department of Corrections
It Is therefore ORDERED that the Claim Administrators Order dated November 152013 be AFFIRMED
16
000017
William Crawford JON 2014016722
APPEAL RIGHTS
Under the provisions of WVa Code sect23-5-12 any aggrieved party may file a written appeal wlthlnthJrty (30) days after receipt of any decision or action of the Administrative Law Judge The appeal shall be filed ~Irectly with the Workrs Compensation Board of Review at PO Box 2828 Cha~eston WV 263~9
Date July 6bull 2015
RibcCca S CharI Administrative Law ludp
RSCQtc
cc WILUAM F CRAWFORD JOHN HENRY SKAGGS -COUNSEL FOR CLAIMANT DEPT OF CORRECTIONS-WORK RELEASE LISA WARNER HUNTER - COUNSEL FOR EMPLOYER AMERiCAN ZURICH INS CO
17
000018
William Crawford JCN 2014016722
JCN
Date
2014016722
July 6 2015
ReconJ Considered
The Clalmanfs protest to the Claims Administrators order Of regarding REJECTION OF CLAIM
November 15 2013
EVIDENCE SUBMITTED
Claimant Evidence
Document Type Not Specified Document Date 11112000 Submit Date 6Q012014 Author EMPlOYERICLAIMANT - WORK AGREEMENT
DoaIment Type NotSpepified Document Date 1112OQ4 Submit Date 612012014 Author WV DIVISIONS OF CORRECTIONS - POUCY
OIRECnVE
Document Type Not Specified Document Date 41112006 Submit Date 612012014 Author CHIPPERISHREDOER SAFElY - K-STATE
ARTICLE
Document Type Oocum~nt Dale Submit Date
Not Specified 41612008 612012014
18
000019
Willism Crawford JON 2014016722
Author HAZARDS OF WOOD CHIPPERS - OSHAOOV
Document Type Not-Specified Document Date 7112010 Submit Date 812612014 Author DIVISION OF CORRECTIONS-2010 EXECUTIVE BUDGET
STATEMENT
Document Type Not Specified-----DocumenrDste=------r71t212010----------------------- ----
Submit Date 812612014 Author NEWSPAPER ARTICLE~DEPTOF CORR~CTIONS
Document Type NotSpecified Oocument Date 412612012 Submit 08te612012014 Author CONVICT WORKFoRCE AGREEMENT
Document Type -Not Specifted Document pate 4I26J2012 Submit Date 812012014 Author CLAIMANT - CONTRACT FOR PLACEMENT
Document Type NotSpeCified [)(lcument Date 1112612012 Submit Date 1123i2014 Author WORK RELEASE RECORD (111261122-19-13)
Document Type Not Speclfjed Document Date 1112712012 Submit Date 112312014 Author CONTRACTIPLACEMENT ON ROADCOMMUNITV
CREW
Document Type Not Specified Document Date 312812013 Submit Date 112312014 Author DUTY OFFICER REPORT
Document Type Not Specified Document Date 32812013 Submit Date 1232014 Author INCIDENT REPORT WITH ATTACHED MEDICATION
FORMS
19
000020
William Crawford JCN2014016722
Document Type Not Specified Document Dale 4412013 Submit Date 112312014 Author WILLIAM CRAWFO~D ~ STATEMENT
Document Type Not Specified DocUment Dale 412512013 Submit Date 611912014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 121102013 Submit Date 1l23t014 Aulhor CLAIMANTS DEPT OF CORRECTIONS FILE
Document Type Not Specified Document Date 12312014 Submit Date 112312014 Author CLAIMANT - CONTRACT PLACEMENTIWORK RELEASE
CENTER-UNDATED
Document Type NotSpeclfied Document De 113112014 Submit Date 2412014 Author EMPLOYER INTERROGATORIES
Document Type Not Specified Document Date 62312014 Submit Date 012312014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 12118204 Submit Date 11412015 Author BETIY SLACKmiddot DEPOSITION
Document Type Not Specified Document Date 21512015 Submit Date 212612015 Author JEFF STINNETTmiddot DEPOSITION WIEXHIBiTS
Document Type Not Specified Document Date 313112015 Submit Date 412212015 Author BOBBY WILUAMS - DEPOSITION
20
000021
JCN 2014016722WlUlam Crawford
Emglgyer Evid8DC8
Document Type Npt Specified ------f)ocumentDate--tlf2mo2-------------------- shy
$lIbmiiOate 73112014 Author WORK RELEASE STATUS MASTER FURLOUGH
AGREEMENT
Document Type Not Sp~lfied Document Date 312812013 Submit Date 713112014 Author OFFICE OF WV AUDITORmiddot FINANCIAL INFO MANAGEMENT
SYSTEM INVOICE SHEETS
Document Type Not Specified Document Date 312812013 Subinlt Date 713112014 Author DARRELL SIGMON - STATEMENT
Document Type Not Specified Document Date 31282013 Submit Date 713112014 Author ROCKY pARSONSmiddot STATEMENT
D~umentType Not Specified Document Date 612312014 Submit Date 713112014 Author BETTY SLACKmiddot AFFIDAVIT
CLOSING ARGUMENTS
21
000022
WillIam Crawford
PalY Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted tettE3FDate Party Submitted Letter Date
Under the provisions of WVa Code sect23-5-12 any aggrieved party may file a written appeal wlthlnthJrty (30) days after receipt of any decision or action of the Administrative Law Judge The appeal shall be filed ~Irectly with the Workrs Compensation Board of Review at PO Box 2828 Cha~eston WV 263~9
Date July 6bull 2015
RibcCca S CharI Administrative Law ludp
RSCQtc
cc WILUAM F CRAWFORD JOHN HENRY SKAGGS -COUNSEL FOR CLAIMANT DEPT OF CORRECTIONS-WORK RELEASE LISA WARNER HUNTER - COUNSEL FOR EMPLOYER AMERiCAN ZURICH INS CO
17
000018
William Crawford JCN 2014016722
JCN
Date
2014016722
July 6 2015
ReconJ Considered
The Clalmanfs protest to the Claims Administrators order Of regarding REJECTION OF CLAIM
November 15 2013
EVIDENCE SUBMITTED
Claimant Evidence
Document Type Not Specified Document Date 11112000 Submit Date 6Q012014 Author EMPlOYERICLAIMANT - WORK AGREEMENT
DoaIment Type NotSpepified Document Date 1112OQ4 Submit Date 612012014 Author WV DIVISIONS OF CORRECTIONS - POUCY
OIRECnVE
Document Type Not Specified Document Date 41112006 Submit Date 612012014 Author CHIPPERISHREDOER SAFElY - K-STATE
ARTICLE
Document Type Oocum~nt Dale Submit Date
Not Specified 41612008 612012014
18
000019
Willism Crawford JON 2014016722
Author HAZARDS OF WOOD CHIPPERS - OSHAOOV
Document Type Not-Specified Document Date 7112010 Submit Date 812612014 Author DIVISION OF CORRECTIONS-2010 EXECUTIVE BUDGET
STATEMENT
Document Type Not Specified-----DocumenrDste=------r71t212010----------------------- ----
Submit Date 812612014 Author NEWSPAPER ARTICLE~DEPTOF CORR~CTIONS
Document Type NotSpecified Oocument Date 412612012 Submit 08te612012014 Author CONVICT WORKFoRCE AGREEMENT
Document Type -Not Specifted Document pate 4I26J2012 Submit Date 812012014 Author CLAIMANT - CONTRACT FOR PLACEMENT
Document Type NotSpeCified [)(lcument Date 1112612012 Submit Date 1123i2014 Author WORK RELEASE RECORD (111261122-19-13)
Document Type Not Speclfjed Document Date 1112712012 Submit Date 112312014 Author CONTRACTIPLACEMENT ON ROADCOMMUNITV
CREW
Document Type Not Specified Document Date 312812013 Submit Date 112312014 Author DUTY OFFICER REPORT
Document Type Not Specified Document Date 32812013 Submit Date 1232014 Author INCIDENT REPORT WITH ATTACHED MEDICATION
FORMS
19
000020
William Crawford JCN2014016722
Document Type Not Specified Document Dale 4412013 Submit Date 112312014 Author WILLIAM CRAWFO~D ~ STATEMENT
Document Type Not Specified DocUment Dale 412512013 Submit Date 611912014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 121102013 Submit Date 1l23t014 Aulhor CLAIMANTS DEPT OF CORRECTIONS FILE
Document Type Not Specified Document Date 12312014 Submit Date 112312014 Author CLAIMANT - CONTRACT PLACEMENTIWORK RELEASE
CENTER-UNDATED
Document Type NotSpeclfied Document De 113112014 Submit Date 2412014 Author EMPLOYER INTERROGATORIES
Document Type Not Specified Document Date 62312014 Submit Date 012312014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 12118204 Submit Date 11412015 Author BETIY SLACKmiddot DEPOSITION
Document Type Not Specified Document Date 21512015 Submit Date 212612015 Author JEFF STINNETTmiddot DEPOSITION WIEXHIBiTS
Document Type Not Specified Document Date 313112015 Submit Date 412212015 Author BOBBY WILUAMS - DEPOSITION
20
000021
JCN 2014016722WlUlam Crawford
Emglgyer Evid8DC8
Document Type Npt Specified ------f)ocumentDate--tlf2mo2-------------------- shy
$lIbmiiOate 73112014 Author WORK RELEASE STATUS MASTER FURLOUGH
AGREEMENT
Document Type Not Sp~lfied Document Date 312812013 Submit Date 713112014 Author OFFICE OF WV AUDITORmiddot FINANCIAL INFO MANAGEMENT
SYSTEM INVOICE SHEETS
Document Type Not Specified Document Date 312812013 Subinlt Date 713112014 Author DARRELL SIGMON - STATEMENT
Document Type Not Specified Document Date 31282013 Submit Date 713112014 Author ROCKY pARSONSmiddot STATEMENT
D~umentType Not Specified Document Date 612312014 Submit Date 713112014 Author BETTY SLACKmiddot AFFIDAVIT
CLOSING ARGUMENTS
21
000022
WillIam Crawford
PalY Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted tettE3FDate Party Submitted Letter Date
The Clalmanfs protest to the Claims Administrators order Of regarding REJECTION OF CLAIM
November 15 2013
EVIDENCE SUBMITTED
Claimant Evidence
Document Type Not Specified Document Date 11112000 Submit Date 6Q012014 Author EMPlOYERICLAIMANT - WORK AGREEMENT
DoaIment Type NotSpepified Document Date 1112OQ4 Submit Date 612012014 Author WV DIVISIONS OF CORRECTIONS - POUCY
OIRECnVE
Document Type Not Specified Document Date 41112006 Submit Date 612012014 Author CHIPPERISHREDOER SAFElY - K-STATE
ARTICLE
Document Type Oocum~nt Dale Submit Date
Not Specified 41612008 612012014
18
000019
Willism Crawford JON 2014016722
Author HAZARDS OF WOOD CHIPPERS - OSHAOOV
Document Type Not-Specified Document Date 7112010 Submit Date 812612014 Author DIVISION OF CORRECTIONS-2010 EXECUTIVE BUDGET
STATEMENT
Document Type Not Specified-----DocumenrDste=------r71t212010----------------------- ----
Submit Date 812612014 Author NEWSPAPER ARTICLE~DEPTOF CORR~CTIONS
Document Type NotSpecified Oocument Date 412612012 Submit 08te612012014 Author CONVICT WORKFoRCE AGREEMENT
Document Type -Not Specifted Document pate 4I26J2012 Submit Date 812012014 Author CLAIMANT - CONTRACT FOR PLACEMENT
Document Type NotSpeCified [)(lcument Date 1112612012 Submit Date 1123i2014 Author WORK RELEASE RECORD (111261122-19-13)
Document Type Not Speclfjed Document Date 1112712012 Submit Date 112312014 Author CONTRACTIPLACEMENT ON ROADCOMMUNITV
CREW
Document Type Not Specified Document Date 312812013 Submit Date 112312014 Author DUTY OFFICER REPORT
Document Type Not Specified Document Date 32812013 Submit Date 1232014 Author INCIDENT REPORT WITH ATTACHED MEDICATION
FORMS
19
000020
William Crawford JCN2014016722
Document Type Not Specified Document Dale 4412013 Submit Date 112312014 Author WILLIAM CRAWFO~D ~ STATEMENT
Document Type Not Specified DocUment Dale 412512013 Submit Date 611912014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 121102013 Submit Date 1l23t014 Aulhor CLAIMANTS DEPT OF CORRECTIONS FILE
Document Type Not Specified Document Date 12312014 Submit Date 112312014 Author CLAIMANT - CONTRACT PLACEMENTIWORK RELEASE
CENTER-UNDATED
Document Type NotSpeclfied Document De 113112014 Submit Date 2412014 Author EMPLOYER INTERROGATORIES
Document Type Not Specified Document Date 62312014 Submit Date 012312014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 12118204 Submit Date 11412015 Author BETIY SLACKmiddot DEPOSITION
Document Type Not Specified Document Date 21512015 Submit Date 212612015 Author JEFF STINNETTmiddot DEPOSITION WIEXHIBiTS
Document Type Not Specified Document Date 313112015 Submit Date 412212015 Author BOBBY WILUAMS - DEPOSITION
20
000021
JCN 2014016722WlUlam Crawford
Emglgyer Evid8DC8
Document Type Npt Specified ------f)ocumentDate--tlf2mo2-------------------- shy
$lIbmiiOate 73112014 Author WORK RELEASE STATUS MASTER FURLOUGH
AGREEMENT
Document Type Not Sp~lfied Document Date 312812013 Submit Date 713112014 Author OFFICE OF WV AUDITORmiddot FINANCIAL INFO MANAGEMENT
SYSTEM INVOICE SHEETS
Document Type Not Specified Document Date 312812013 Subinlt Date 713112014 Author DARRELL SIGMON - STATEMENT
Document Type Not Specified Document Date 31282013 Submit Date 713112014 Author ROCKY pARSONSmiddot STATEMENT
D~umentType Not Specified Document Date 612312014 Submit Date 713112014 Author BETTY SLACKmiddot AFFIDAVIT
CLOSING ARGUMENTS
21
000022
WillIam Crawford
PalY Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted tettE3FDate Party Submitted Letter Date
Document Type Not-Specified Document Date 7112010 Submit Date 812612014 Author DIVISION OF CORRECTIONS-2010 EXECUTIVE BUDGET
STATEMENT
Document Type Not Specified-----DocumenrDste=------r71t212010----------------------- ----
Submit Date 812612014 Author NEWSPAPER ARTICLE~DEPTOF CORR~CTIONS
Document Type NotSpecified Oocument Date 412612012 Submit 08te612012014 Author CONVICT WORKFoRCE AGREEMENT
Document Type -Not Specifted Document pate 4I26J2012 Submit Date 812012014 Author CLAIMANT - CONTRACT FOR PLACEMENT
Document Type NotSpeCified [)(lcument Date 1112612012 Submit Date 1123i2014 Author WORK RELEASE RECORD (111261122-19-13)
Document Type Not Speclfjed Document Date 1112712012 Submit Date 112312014 Author CONTRACTIPLACEMENT ON ROADCOMMUNITV
CREW
Document Type Not Specified Document Date 312812013 Submit Date 112312014 Author DUTY OFFICER REPORT
Document Type Not Specified Document Date 32812013 Submit Date 1232014 Author INCIDENT REPORT WITH ATTACHED MEDICATION
FORMS
19
000020
William Crawford JCN2014016722
Document Type Not Specified Document Dale 4412013 Submit Date 112312014 Author WILLIAM CRAWFO~D ~ STATEMENT
Document Type Not Specified DocUment Dale 412512013 Submit Date 611912014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 121102013 Submit Date 1l23t014 Aulhor CLAIMANTS DEPT OF CORRECTIONS FILE
Document Type Not Specified Document Date 12312014 Submit Date 112312014 Author CLAIMANT - CONTRACT PLACEMENTIWORK RELEASE
CENTER-UNDATED
Document Type NotSpeclfied Document De 113112014 Submit Date 2412014 Author EMPLOYER INTERROGATORIES
Document Type Not Specified Document Date 62312014 Submit Date 012312014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 12118204 Submit Date 11412015 Author BETIY SLACKmiddot DEPOSITION
Document Type Not Specified Document Date 21512015 Submit Date 212612015 Author JEFF STINNETTmiddot DEPOSITION WIEXHIBiTS
Document Type Not Specified Document Date 313112015 Submit Date 412212015 Author BOBBY WILUAMS - DEPOSITION
20
000021
JCN 2014016722WlUlam Crawford
Emglgyer Evid8DC8
Document Type Npt Specified ------f)ocumentDate--tlf2mo2-------------------- shy
$lIbmiiOate 73112014 Author WORK RELEASE STATUS MASTER FURLOUGH
AGREEMENT
Document Type Not Sp~lfied Document Date 312812013 Submit Date 713112014 Author OFFICE OF WV AUDITORmiddot FINANCIAL INFO MANAGEMENT
SYSTEM INVOICE SHEETS
Document Type Not Specified Document Date 312812013 Subinlt Date 713112014 Author DARRELL SIGMON - STATEMENT
Document Type Not Specified Document Date 31282013 Submit Date 713112014 Author ROCKY pARSONSmiddot STATEMENT
D~umentType Not Specified Document Date 612312014 Submit Date 713112014 Author BETTY SLACKmiddot AFFIDAVIT
CLOSING ARGUMENTS
21
000022
WillIam Crawford
PalY Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted tettE3FDate Party Submitted Letter Date
Document Type Not Specified Document Dale 4412013 Submit Date 112312014 Author WILLIAM CRAWFO~D ~ STATEMENT
Document Type Not Specified DocUment Dale 412512013 Submit Date 611912014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 121102013 Submit Date 1l23t014 Aulhor CLAIMANTS DEPT OF CORRECTIONS FILE
Document Type Not Specified Document Date 12312014 Submit Date 112312014 Author CLAIMANT - CONTRACT PLACEMENTIWORK RELEASE
CENTER-UNDATED
Document Type NotSpeclfied Document De 113112014 Submit Date 2412014 Author EMPLOYER INTERROGATORIES
Document Type Not Specified Document Date 62312014 Submit Date 012312014 Author PHYSICAL EVIDENCE - PICTURES
Document Type Not Specified Document Date 12118204 Submit Date 11412015 Author BETIY SLACKmiddot DEPOSITION
Document Type Not Specified Document Date 21512015 Submit Date 212612015 Author JEFF STINNETTmiddot DEPOSITION WIEXHIBiTS
Document Type Not Specified Document Date 313112015 Submit Date 412212015 Author BOBBY WILUAMS - DEPOSITION
20
000021
JCN 2014016722WlUlam Crawford
Emglgyer Evid8DC8
Document Type Npt Specified ------f)ocumentDate--tlf2mo2-------------------- shy
$lIbmiiOate 73112014 Author WORK RELEASE STATUS MASTER FURLOUGH
AGREEMENT
Document Type Not Sp~lfied Document Date 312812013 Submit Date 713112014 Author OFFICE OF WV AUDITORmiddot FINANCIAL INFO MANAGEMENT
SYSTEM INVOICE SHEETS
Document Type Not Specified Document Date 312812013 Subinlt Date 713112014 Author DARRELL SIGMON - STATEMENT
Document Type Not Specified Document Date 31282013 Submit Date 713112014 Author ROCKY pARSONSmiddot STATEMENT
D~umentType Not Specified Document Date 612312014 Submit Date 713112014 Author BETTY SLACKmiddot AFFIDAVIT
CLOSING ARGUMENTS
21
000022
WillIam Crawford
PalY Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted tettE3FDate Party Submitted Letter Date
Document Type Npt Specified ------f)ocumentDate--tlf2mo2-------------------- shy
$lIbmiiOate 73112014 Author WORK RELEASE STATUS MASTER FURLOUGH
AGREEMENT
Document Type Not Sp~lfied Document Date 312812013 Submit Date 713112014 Author OFFICE OF WV AUDITORmiddot FINANCIAL INFO MANAGEMENT
SYSTEM INVOICE SHEETS
Document Type Not Specified Document Date 312812013 Subinlt Date 713112014 Author DARRELL SIGMON - STATEMENT
Document Type Not Specified Document Date 31282013 Submit Date 713112014 Author ROCKY pARSONSmiddot STATEMENT
D~umentType Not Specified Document Date 612312014 Submit Date 713112014 Author BETTY SLACKmiddot AFFIDAVIT
CLOSING ARGUMENTS
21
000022
WillIam Crawford
PalY Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted tettE3FDate Party Submitted Letter Date
PalY Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted Letter Date Party Submitted tettE3FDate Party Submitted Letter Date
