GLORIA HENSLEY, et al.,
Grievants,
v.
DOCKET NO. 00-BEP-033
WEST VIRGINIA BUREAU OF EMPLOYMENT
PROGRAMS and DIVISION OF PERSONNEL,
Respondents.
D E C I S I O N
On April 16, 1996, eighty-four employees of the West Virginia Bureau of
Employment Programs, Workers' Compensation Division, Claims Management Section
(Division) filed a joint grievance alleging that:
The reclassification we were notified of on April 3, 1996 was not done
according to WV State Code, WV Division of Personnel Rules, or Public
Policy. There has been discrimination, favoritism and intimidation used
during this process. Individuals have been functionally demoted and
currently work out of classification.
The grievants sought the following relief:
To be properly classified; to have supervisors' duties restored that have been
removed, to have the classification placed in the appropriate pay grade, to
equalize salaries, to stop the discrimination and intimidation, to receive back
pay with interest from the date the work has been performed, and to made
whole in every way.
The grievance was denied at Levels I and II. On August 1, 1997, the grievants
appealed to Level III. The Level III hearing was held on fifteen (15) separate days
commencing February 16, 1999, and concluding June 4, 1999. In order to facilitate a moreorganized presentation of the grievance, the parties agreed to divide the grievance hearing
into two parts. Part I of the hearing addressed the individual misclassification claims of
thirteen (13) of the Grievants. Part II addressed the appropriateness of pay grades
assigned to the job classifications of Claims Representative I, Claims Representative II,
Deputy Claims Manager and District Claims Manager.
On November 29, 1999, the Level III Grievance Evaluator issued his Recommended
Decision granting the individual claims of eight (8) grievants and denying the individual
claims of five (5) grievants. The Grievance Evaluator further recommended that Grievants'
claim that improper pay grades were assigned to the four classifications be denied. On
January 11, 2000, William F. Vieweg, Commissioner of the West Virginia Bureau of
Employment Programs, issued a decision adopting the Recommended Decision of the
Level III Grievance Evaluator.
On January 21, 2000, Grievants, through their representative, filed an appeal to this
Grievance Board. The appeal addresses the claims of those five (5) individuals who were
denied relief in Part I of the Level III Decision, and the Part II issue addressing the pay
grades assigned to the four job classifications in question. By agreement of the parties,
it was determined this matter could be decided based upon the lower level record with the
simultaneous submission of Proposed Findings of Fact and Conclusions of Law on June
12, 2000. Grievants were represented by Marilyn Kendall, AFSCME representative; the
Division was represented by Thomas M. Woodward , Esq. and John D. Howell, Esq.; the
Division of Personnel was represented by Donald L. Darling, Esq., Senior Deputy AttorneyGeneral and Lowell D. Basford, Division of Personnel, Assistant Director for Classification
and Compensation.
BACKGROUND
In October of 1993, the Division determined a more efficient method of dealing with
workers' compensation claims was needed. The new method changed what had been an
assembly line process of various employees dealing with specific aspects of one claim,
to one in which a single employee handled all aspects of the claim from beginning to end.
To test this new method, a prototype team was created in April 1994. From 1994 to 1996,
new prototype teams were organized as the process developed. Each team was
comprised of a team leader and employees from various classifications and disciplines.
During the time the revised claims management process was being established, the
employees assigned to the prototype teams retained their original classifications. These
classifications included medical claims analysts, office assistants, telephone operators,
data entry operators, accounting assistants, supervisors, etc. There were approximately
one hundred and fifty (150) employees affected by this change.
In July 1995, the Division requested that the Division of Personnel (Personnel)
begin reclassifying the employees working on the new claims management teams. LIII G.
Ex. 1. Immediately following this request, Personnel began the reclassification project,
directed by Lowell D. Basford.
Mr. Basford held meetings with employees and management to brief them on the
process, and requested that each employee complete a Position Description Form. The
majority of these forms were completed and returned to Personnel by the end of August1995. LIII G. Ex. 4. During the month of October 1995, Mr. Basford and a member of his
staff scheduled and conducted on-site job audits of a sampling of the affected positions.
LIII G. Exs. 5-8.
On February 1, 1996, Mr. Basford forwarded to Executive Director, Ed Burdette,
draft classification specifications, indicating the assignment of pay grades to the positions
was a point of contention. Mr. Basford requested the Division develop a proposal
regarding the pay grade assignments for presentation to the State Personnel Board on
February 15, 1996. LIII G. Ex. 13.
A working group of claims management personnel developed a comprehensive
proposal detailing the duties of the newly formed claims management team members,
along with classification and pay grade recommendations. LIII G. Ex. 14. The proposal
was submitted to the Personnel Board on March 21, 1996. The Personnel Board approved
the new classifications: Claims Representative I, Pay Grade 8; Claims Representative II,
Pay Grade 9, with a special hiring rate of seven percent (7%) above the minimum; Deputy
Claims Manager, Pay Grade 11; and District Claims Manager, Pay Grade 13. LIII G. Ex.
15.
The new classifications became effective April 1, 1996, and each claims
management employee was notified of his/her new classification, pay grade and salary,
on April 3, 1996. A significant number of claims management employees disagreed with
their classifications, pay grades and salary, with the result that this grievance was filed on
April 16, 1996.
DISCUSSION
In order to prevail in a grievance of this nature, Grievants must prove the
allegations in their complaint by a preponderance of the evidence.
Wargo v. W. Va. Dept.
of Health & Human Resources, Docket Nos. 92-HHR-441/445/446 (Mar. 23, 1994);
Payne
v. W. Va. Dept. of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988). This grievance
divides itself into two distinct areas: (1) the consolidated issue concerning the pay grades
assigned to the four new job classifications effective April 1, 1996; and (2) the five
remaining individual claims of misclassification. Each issue will be discussed in turn.
A.
Whether the actions of Personnel and the State Board of Personnel in
assigning pay grades to the Claims Representative I, Claims Representative
II, Deputy Claims Manager and District Claims Manager classifications,
effective April 1, 1996, were arbitrary, capricious, clearly wrong, violated
regulations, or were otherwise illegal or improper.
The West Virginia State Personnel Board, a part of Personnel, was created in 1989
to replace the former Civil Service Commission.
W. Va. Code § 29-6-6 (1989). The duties
and responsibilities of the former Director of the Civil Service Commission were also
transferred to the Director of Personnel.
W. Va. Code § 29-6-9 (1989). Pursuant to
W. Va.
Code § 29-6-10(1), the State Personnel Board has been delegated the discretionary
authority to promulgate, amend, or appeal legislative rules governing the preparation,
maintenance and review of a position classification plan for all positions within the
classified service based upon a similarity of duties performed and responsibilities assumed,
so that the same qualifications may reasonably be required for and the same schedule of
pay may be equitably applied to all positions in the same class. The Personnel Board has the same authority and responsibility to establish a pay
plan for all positions within the classified service, guided by the principle of equal pay for
equal work.
W. Va. Code § 29-6-10(2). The Personnel Board has wide discretion in
performing its duties, although it cannot exercise its discretion in an arbitrary or capricious
manner. Also, the rules promulgated by the Personnel Board are given the force and
effect of law and are presumed valid unless shown to be unreasonable or not to conform
with the authorizing legislation.
Fike v. W. Va. Dept. of Health and Human Resources,
Docket No. 95-HHR-155 (Aug. 28, 1998);
Trimboli v. W. Va. Dept. of Health and Human
Resources, Docket No. 93-HHR-322 (June 27, 1997);
Moore v. W. Va. Dept. of Health and
Human Resources, Docket No. 94-HHR-126 (Aug. 26, 1994).
See,
State ex. rel Callaghan
v. W. Va. Civil Serv. Comm'n, 166 W. Va. 117, 273 S.E.2d 72 (1980). Finally, and in
general, an agency's determination of matters within its expertise is entitled to substantial
weight.
Princeton Community Hosp. v. State Health Planning, 174 W. Va. 558, 328 S.E.2d
164 (1985).
This standard of entitlement to substantial weight applies when a grievant attempts
to review Personnel's interpretation of its own regulations and classification specifications
to determine if Personnel's decision was arbitrary and capricious or an abuse of discretion.
Farber v. W. Va. Dept. of Health and Human Resources, Docket No. 95-HHR-052 (July 10,
1995). There is no question [Personnel] has the authority to establish pay grades within
a pay plan.
Stephenson v. W. Va. Bureau of Employment Programs, Docket No. 92-DOP-
447 (Aug. 12, 1993). Further, a grievant may prevail by demonstrating his or her reclassification was
made in an arbitrary and capricious manner.
See Kyle v. W. Va. State Bd. of
Rehabilitation, Docket No. VR-88-006 (Mar. 28, 1989). Generally, an action is considered
arbitrary and capricious if the agency did not rely on criteria intended to be considered,
explained or reached the decision in a manner contrary to the evidence before it, or
reached a decision that was so implausible that it cannot be ascribed to a difference of
opinion.
See Bedford County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017
(4th Cir. 1985);
Yokum v. W. Va. Schools for the Deaf and the Blind, Docket No. 96-DOE-
081 (Oct. 16, 1996). While a searching inquiry into the facts is required to determine if an
action was arbitrary and capricious, the scope of review is narrow, and an administrative
law judge may not simply substitute her judgment for that of Personnel.
See generally,
Harrison v. Ginsberg, 169 W. Va. 162, 286 S.E.2d 276 (1982).
An employee who challenges the pay grade to which his or her position is assigned,
bears the burden of proving the claim by a preponderance of the evidence. This is a
difficult undertaking.
W. Va. Dept. of Health v. Blankenship, 189 W. Va. 342, 431 S.E.2d
681 (1995);
Bennett v. Dept. of Health and Human Resources, Docket No. 93-HHR-518
(June 23, 1995);
Johnston v. Dept. of Health and Human Resources, Docket No. 94-HHR-
206 (June 15, 1995);
Thibault v. Div. of Rehabilitation Serv., Docket No. 94-RS-061 (May
31, 1995);
Frome v. Dept. of Health and Human Resources, Docket No. 94-HHR-140 (Nov.
29, 1994).
See O'Connell v. W. Va. Dept. of Health and Human Resources, Docket No.
95-HHR-251 (Oct. 13, 1995). Unless a grievant presents sufficient evidence to demonstrate Personnel's
interpretation of the pay grade is clearly wrong, or the result of an abuse of discretion, an
administrative law judge must give deference to Personnel and find that the pay grade
assignment was correct.
Farber,
supra;
O'Connell,
supra.
Grievants do not contest that it was appropriate for the Division, in view of the
reorganization and change in duties, to request that Personnel undertake to reclassify the
employees involved in the claims management process. Rather, Grievants first contend
the process of reclassifying their positions was not in conformance with applicable rules
and statutes governing this activity. Specifically, Grievants point out that a majority of the
150 employees reclassified submitted nearly identical Position Description Forms to
Personnel. Further, Grievants testified that Personnel's desk-audits were only of a random
sampling of employees, and lasted no longer than a few minutes each. Thus, Grievants
contend Personnel had no objective or reliable knowledge upon which to base its
classification decisions.
As previously stated, an action is arbitrary and capricious if the agency making the
decision did not rely on criteria intended to be considered; explained or reached the
decision in a manner contrary to the evidence before it; or reached a decision that is so
implausible that it cannot be ascribed to a difference of opinion.
See Bedford County
Memorial Hosp.,
supra. An action may also be arbitrary and capricious if it is willful and
unreasonable without consideration of facts. Black's Law Dictionary, at 55 93d Ed. (1985).
Arbitrary is further defined as being synonymous with bad faith or failure to exercise
honest judgment.
Id. If indeed, the only information utilized to formulate the class specifications and
assign positions were the Position Description Forms, Grievants may have carried their
burden of proving the classification process was flawed. However, review of the Position
Description Forms, and subsequent categorization of positions, did not occur in a vacuum.
The facts demonstrate the reclassification project followed a well devised methodology that
included communication, authorization, data collection, data analysis, class specification
preparation, class specification validation, appointing authority consultation, Board
approval, implementation and, finally, appeals. This process, which took place from July
1995 to April 1996, was thorough and complete. Numerous meetings were held involving
Personnel, Division employees and Division management. Personnel conducted field
audits of a representative sample of positions, and class specifications were then prepared,
reviewed and revised based on input from Division employees and management.
Personnel experts reviewed the job specifications and assigned recommended pay
grades consistent with the job specifications. Proposed job classification titles and pay
grades were reviewed and revised by the then Commissioner. The Personnel Board
considered and adopted
all recommendations made by the Commissioner. Whether
Grievants would have used a different or possibly more extensive methodology to assign
positions to classification specifications is irrelevant. Personnel's methodology was neither
arbitrary nor capricious and therefore was valid.
See Trimboli v. W. Va. Dept. of Health
and Human Resources, Docket No. 93-HHR-322 (June 27, 1997).
Grievants' second contention is that the pay grades assigned to the four job
specifications were clearly wrong, and ask that the classifications be placed in theappropriate pay grade. The pay grades sought during the course of proceedings were:
Claims Representative I, pay grade 11; Claims Representative II, pay grade 12; Deputy
Claims Manager, pay grade 14; and District Claims Manager, pay grade 16.
(See footnote 1)
The Personnel Board is required to assign pay grades to job classes consistent with
the duties outlined in the class specifications. 143 CSR1 5.4. The evidence shows the
methodology used properly considered the relative level of complexity and difficulty in other
classifications as a basis for recommending the pay grades for the claims representative
class series.
Personnel
Administrative Rule 5.4(a) titled Assignment of Classes requires the
State Personnel board to assign each class of positions to an appropriate pay grade
consistent with the duties outlined in the class specification. In order to prove Personnel's
placement of Grievants' classifications in their respective pay grades is wrong based on
the premise that the complexity of their work is equal to or greater than other more highly
paid classifications, Grievants must prove this action is arbitrary and capricious.
Kyle,
supra;
Trimboli,
supra. While the Personnel Board has wide discretion in performing its
duties, it cannot do so in an arbitrary and capricious manner.
A pay grade is assigned to a position based on many factors including complexity
of duties, degree of public contact, exposure to harm, consequence of error, comparisonwith other positions in the same pay grade, comparison of positions in the same job
grouping, level of technical support, level of supervision required, independent judgment,
and interaction.
Fike, supra;
Vickers v. W. Va. Dept. of Tax and Revenue, Docket No. 94-
T&R-092/142 (Nov. 14, 1994). As stated above, the evidence demonstrates that all of the
above factors were considered by Personnel, the Division, and the State Board of
Personnel, on assigning pay grades to the four classifications.
However, Grievants compared their classifications to several other classifications
within the state: Disability Evaluation Trainee; Disability Evaluation Specialist; Disability
Evaluation Specialist, Senior; Underwriter II; and Employment Programs Field Supervisor.
Grievants allege their duties and responsibilities are the same as, or more complex, than
those reflected in the classification specifications for the above classifications, and
therefore, they should be compensated comparably with those classifications.
This Board has treated arguments such as Grievants' to be one for a higher pay
scale based on comparative worth (a.k.a. comparable worth), and not one of equal pay
for equal work.
(See footnote 2)
Grievants are not comparing themselves to employees within their own
classification, but to employees who they allege perform substantially similar work throughexerting the same effort and by utilizing the same skill level within a substantially similar
working environment.
See Moore,
supra;
Fike,
supra.
The majority of federal courts are unwilling to substitute their judgment for that of the
various employers in the comparative worth Title VII cases dealing with the issues of
numerous positions' value to their employers. In
Moore,
supra, the Administrative Law
Judge stated, this Grievance Board is likewise reluctant to act as an expert in matters of
classification of positions, job market analysis, and compensation schemes, and substitute
its judgment for that of the administrative agency in charge of classification and
compensation.
However, this Board also noted in
Moore that the line of federal cases considering
the issue of comparative worth under federal anti-discrimination laws is distinguishable
from cases such as we have. This is because the definition of discrimination used for state
public employment does not require proving intent.
See Moore,
supra. Moreover,
Fike
shows that there is still a residual equal pay for equal work analysis in comparable worth
cases. Regardless of how this case is properly labeled, Grievants are arguing that the
decision to place their respective classifications in a lower pay scale than the classifications
they identify as similar, was arbitrary, capricious, and an abuse of discretion because of
the similarity of their job functions.
See Moore,
supra.
In determining whether positions are so similar that providing a pay grade for one
position that is different than another is a violation of the anti-discrimination equal pay for
equal work provisions of the
West Virginia Code, the focus is on the actual work performed
in each position.
See Akers v. W. Va. Dept. of Tax and Revenue, 194 W. Va. 456, 460S.E.2d 702 (1995)(noting that when considering the equal pay for equal work provision
of the Code, the West Virginia Supreme Court has always considered the actual duties
performed.)(citation omitted).
Grievants' classifications are reproduced as follows:
Nature of Work: Under direct supervision, reviews, evaluates and processes an
assigned caseload of Workers Compensation claims. Responsible for a caseload involving
primarily unprotested no lost time and lost time claims with less than four weeks of
indemnity benefits. Performs related work as required.
Distinguishing Characteristics: The Claims Representative I is distinguished from
the Claims Representative II by the responsibility of claims assigned. The Claims
Representative I is responsible for a caseload involving primarily unprotested no lost time
and lost time claims with less than four weeks of indemnity benefits.
Examples of Work
Analyzes assigned new claims and reopening applications; determines applicability of
coverage and chargeability.
Contacts claimants, employers, physicians, witnesses, and other agents to gather and
verify information; secures salary information and determines compensation rate.
Determines claim compensability.
Requests treatment plans from physicians and other clinical providers.
Reviews requests for treatment, change of physicians, payment of medical expenses
and payment of indemnity benefits.
Requests independent medical examinations; reviews independent medical
examination reports and determines appropriateness of recommendations based
upon current accepted guidelines.
Explains decisions and appeal rights to physicians, attorneys, government officials,
other clinical providers and other interested parties.
Issues protestable and non-protestable orders related to claims.
Maintains active claim diaries and file notes.
Knowledge, Skills and Abilities
Ability to learn West Virginia Workers Compensation statute, rules, regulations, policies
and procedures.
Ability to learn West Virginia court precedent setting decisions and application of
rulings.
Ability to learn medical terminology, anatomy, body systems, and treatment protocol.
Ability to communicate effectively, both orally and in writing.
Ability to use medical treatment guidelines in processing claims.
Ability to establish and maintain effective working relationships with the public,
providers and other employees.
Ability to operate a personal computer, recording equipment and other office
equipment.
CLAIMS REPRESENTATIVE II
Nature of Work: Under general supervision, reviews, evaluates, and processes an
assigned caseload of Workers Compensation claims. Responsible for a caseload involving
lost time claims with less than one hundred and four weeks of indemnity benefits. Caseload
will include hearing loss, and occupational disease (e.g., repetitive motion, carpal tunnel,
chemical exposure, dermatitis, etc.) and claims requiring surgery. Performs related duties
as required.
Distinguishing Characteristics: The Claims Representative II is distinguished from
the Claims Representative I by the responsibility of claims assigned. Claims
Representative II is responsible for a caseload involving lost time claims with less than one
hundred and four weeks of indemnity benefits. Caseload includes hearing loss, and
occupational disease (e. g., repetitive motion, carpal tunnel, chemical exposure, dermatitis,
etc.) and claims requiring surgery.
Examples of Work
Analyzes assigned new claims and reopening applications; determines applicability of
coverage and chargeability.
Contacts claimants, employers, physicians, witnesses, and others to gather and verify
information; secures salary information and determines compensation rate.
Determines claim compensability.
Identifies claims needing vocational rehabilitation for referral to rehabilitation specialists
and monitors progress of rehabilitation services rendered within assigned authority.
Identifies subrogation opportunities; initiates recovery procedures.
Requests treatment plans from physicians and other clinical providers; reviews and
develops a case management plan under general supervision.
Reviews requests for treatment, diagnostic studies, change of physicians, surgery,
payment of medical expenses and payment of indemnity benefits.
Evaluates hearing loss claims and determines employer allocation/chargeability;
evaluates audiograms and determines impairment rating based on current
accepted guidelines.
Consults with medical management nurse on complex medical issues.
Requests independent medical examinations; reviews treatment plans in relation to
established treatment guidelines.
Explains basis for and results of decisions and appeal rights to physicians, attorneys,
government officials, other clinical providers and other interested parties.
Reviews requests for settlement to determine that related payments are made in
accordance with agency policies and procedures.
Works with injured worker, physician and employer to identify return to work
opportunities through modified alternate job duties or trial return to work.
Assists attorneys in litigated claims.
DEPUTY CLAIMS MANAGER
Nature of Work: Under limited supervision, reviews, investigates, evaluates, and
processes an assigned caseload of Workers Compensation claims. Responsible for a
caseload involving claims of indemnity benefits with one hundred and four weeks or more
lost time, including fatalities, catastrophic and permanent total disability claims. May
assume supervisory duties in the absence of District Claims Manager. Performs related
duties as required.
Distinguishing Characteristics: The Deputy Claims Manager is distinguished from
the Claims Representative II by the responsibility of claims assigned. The Deputy Claims
Manager performs under limited supervision and is responsible for a caseload involving lost
time claims of indemnity benefits with 0one hundred and four weeks or more lost time,
including fatalities, catastrophic and permanent total disability claims. May assume
supervisory duties in the absence of District Claims Manager.
Examples of Work
Analyzes assigned new claims and reopening applications; determines applicability of
coverage and chargeability.
Requests investigation activities such as recorded statements, activity checks and
surveillance.
Conducts special reviews on fatal, catastrophic and permanent total disability claims.
Contacts claimants, employers, physicians, witnesses, and other agents to gather and
verify information; secures salary information and determines appropriate
compensation rate.
Determines claim validity and compensability.
Monitors ongoing eligibility for permanent total disability claims in accordance with
applicable statute.
Identifies claims needing vocational rehabilitation for referral to rehabilitation specialists
and monitors progress of rehabilitation services rendered within assigned authority.
Identifies subrogation opportunities, initiates and procures recovery.
Requests treatment plans from treating physicians and other clinical providers.
Develops a case management plan under limited supervision.
Determines medical necessity of requests for treatment, diagnostic studies, change of
treating physicians, major surgery, payment of medical expenses and payment of
objectively substantiated indemnity benefits within their assigned authority.
Determines need for home and vehicular modification and prosthetic devices.
Assumes management of claim which subsequently involve major surgery.
Evaluates statutory requirements for hearing loss and determines employer
chargeability/allocation.
Evaluates audiograms and determines impairment rating based on current accepted
guidelines.
Consults with medical management nurse and HCAP on complex medical issues.
Initiates and specifies independent medical examination criteria.
Analyzes independent medical examination reports and reviews treatment plans in
relating to established treatment guidelines.
Explains legal basis for and results of decisions and appeal rights to physicians,
attorneys, government officials, other clinical providers and other interested parties.
Reviews requests for settlement to determine that related payments are made in
accordance with agency policies and procedures under limited supervision.
Works with injured worker, treating physician and employer to identify opportunities and
initiate return to work through modified alternate job duties or trial return to work.
Formulates and issues legal orders citing findings of fact and conclusions of law.
Assists attorneys in litigated claims.
Reviews and acts upon Administrative Law Judges, Appeal Board and State Supreme
Court decisions under limited supervision.
Provides guidance and technical advice regarding claim management techniques to
team members in lower job classifications as needed.
Maintains active claim diaries and file notes.
Reviews and applies West Virginia law and current Workers Compensation Division
guidelines in determining appropriateness of reopening requests.
Stays current in claims management principles and techniques and West Virginia law
via continuing education.
Knowledge, Skills and Abilities
Knowledge of West Virginia Workers Compensation statute, rules, regulations, policies
and procedures.
Knowledge of West Virginia court precedent setting decisions and application of rulings.
Knowledge of claim management principles and techniques.
Knowledge of medical terminology, anatomy, body systems, treatment protocol,
surgical procedures and their complications, and the etiology of occupational
diseases.
Knowledge of pharmaceutical interactions.
Knowledge of complications related to catastrophic injuries.
Ability to communicate effectively, both orally and in writing.
Ability to interpret various forms of technical information and make appropriate
decisions.
Ability to plan and organize.
Ability to establish and maintain effective working relationships with the public and other
employees in unit.
Ability to exercise independent judgement.
Ability to operate a personal computer, recording equipment and other office
equipment.
DISTRICT CLAIMS MANAGER
Nature of Work: Under limited supervision, responsible for the supervision,
coordination and monitoring of claims management activities in a unit at the Workers'
Compensation Division. May supervise field personnel assigned to claims management
unit. Assures the timely review, evaluation and processing of claims. The position will
assign new claims, monitor caseloads and direct the case management activities of claims
representatives and others assigned to their unit. This person is responsible for assisting
senior management in formulating and implementing claims management procedures for
the agency. Performs related duties as required.
Distinguishing Characteristics: The District Claims Manager is responsible for the
supervision, training, and monitoring of the claims management activities of those claims
representatives and others assigned to their unit. Assigns new claims, monitors caseloads
and directs the claims representatives and others assigned to their unit.
Examples of Work
Assumes responsibility for day-to-day management of the claim unit's activities.
Supervises claims personnel, and directs the activities of other professionals assigned
to the unit.
Coordinates and monitors the effectiveness of any outside vendors, assigned overflow,
or specialty claims.
Reviews all new claims applications received by the unit and assigns to the proper
claims representative.
Monitors the claim representatives' case loads in order to achieve balance in their
workloads and promote effective claims management of the files assigned.
Determines the compensability of unusual, precedent setting or high exposure claims
with the consent of the senior management.
Reviews and approves any new claims reports recommended for denial by the claims
representatives.
Provides technical expertise and input on claim files handled within the unit.
Reviews and counsels representatives on their claims management strategy plans.
Authorizes benefit payments, reserves and/or settlement amounts in excess of the
claims representatives authority levels.
Resolves difficult benefit issues.
Monitors the medical case management efforts on catastrophic or serious injury claims.
Reassigns claims among the unit's claims representatives as needed to assure quality
claims management.
Maintains a supervisory diary system to assure the periodic timely review of all lost time
claims files with continuing disability.
Reviews a random sample of each claims representatives' claims files for quality control
and case management of their files.
Monitors the claims manager's diaries to ensure adherence to the file review policies
and the active management of their files.
Identifies and initiate claims which may require defense by legal division.
Monitors subrogation recoveries and their crediting against the proper claims file.
Files monthly unit claims activity reports with senior management.
Assists in the selection process of new claims personnel.
Directs the initial and ongoing training of claims personnel.
Monitors and evaluates their unit claim personnel's progress and career development.
Maintains effective working relationships with other agency offices/departments.
Provides liaison with subscriber/self-insurers on high profile claims, as well as their
general loss experience.
Stays current with the latest amendments to the West Virginia Workers Compensation
law and precedent setting case decisions and counsel their unit claims personnel
in the interpretation of such matters.
Assists senior management in the formulation of claims management procedures and
policies.
Performs special projects as assigned by senior management.
Knowledge, Skills and Abilities
Knowledge of state and federal laws and regulations related to workers compensation.
Knowledge of West Virginia Workers Compensation statutes, rules and regulations,
policies and procedures.
Knowledge of West Virginia court decisions and application of rulings.
Knowledge of claims management principles and techniques.
Knowledge of medical terminology, anatomy, body systems, treatment protocol,
surgical procedures and their complications, etiology of occupational diseases.
Knowledge of pharmaceutical interactions.
Knowledge of complications related to catastrophic injuries.
Ability to plan, organize, coordinate and evaluate in the area of assignment.
Ability to develop effective policies and procedures for the agency.
Ability to communicate effectively, both verbally and in writing.
Ability to interpret various forms of technical information and make appropriate
decisions.
Ability to establish and maintain effective working relationships with government
officials, private industry officials, professional personnel and others.
Ability to operate a personal computer.
First, Grievants compare their classifications to the Disability Evaluation Specialist
classification series. This series of positions functions in the Division of Rehabilitation
Services and, under review from the Social Security Administration, evaluates applicants
for Social Security disability. This series has been assigned pay grades as follows:
Disability Evaluation Specialist, Trainee, pay grade 10; Disability Evaluation Specialist, pay
grade 11; and Disability Evaluation Specialist, Senior, pay grade 12. The classification
specifications for these positions follows:
DISABILITY EVALUATION TRAINEE
Nature of Work
Under direct supervision, performs professional work at the entry level examining and
evaluating data to determine eligibility for disability benefits under Titles II and XVI of the
Social Security Act, and analyzes medical, vocational and psychological evidence, utilizing
knowledge of federal policies, regulatory codes, legislation, directives, court precedents or
other guidelines. Learns to evaluate medical evidence for consistency, validity and
sufficiency. Performs related work as required.
Distinguishing Characteristics
At this level, the incumbent develops the ability to determine eligibility for disability
claims and upon completion of that phase of training, performs analytical reviews of
evidence under general supervision and at the full-performance level. The caseload is
predominantly standard claims.
Examples of Work
Participates in a formal training program in disability claims adjudication.
Acquires the knowledge, skills and abilities to perform disability claims adjudication
work.
Reviews and analyzes medical and vocational evidence upon receipt of the claim.
Telephones doctors, hospitals and claimants to clear up conflicting information or to
obtain further medical information.
Writes a final determination of entitlement, personal denial or acceptance notice, and
a technical rationale for each decision; sends notices to each claimant and to the
Social Security Administration (SSA) for denials and approvals; writes an explanation
of unfavorable determinations.
Schedules a consultative medical examination if there is not enough evidence to
determine a case; authorizes a travel expense payment for the claimant.
Evaluates claimant's vocational background, age and education to decide the types of
work the claimant could perform in cases where physicians indicate the claimant has
residual functional capacities; makes referrals to Handicapped Children's Services
or Vocational Rehabilitation.
Develops new cases by reviewing the initial claim; sends letters requesting information
to agencies, hospitals, sources and the claimants.
Files information and evidence into appropriate case files.
Meets with supervisor on a regular basis to discuss difficult cases, to resolve problems
and to update program operations manuals.
Knowledge, Skills and Abilities
Ability to learn and apply federal laws and regulations pertaining to the Disability
Insurance Program under Titles II and XVI of the Social Security Act and the
Supplementary Security Income program.
Ability to learn the policies and procedures of the Disability Determination Section.
Ability to learn the effects of disabilities of the thirteen body systems.
Ability to learn the appropriate use of various medical tests, X-rays and special medical
examinations in documenting claims.
Ability to learn to use the Dictionary of Occupational Titles.
Ability to communicate with physicians and other medical personnel for the purpose of
eliciting information regarding a claimant's disability.
Ability to identify, synthesize, analyze and interpret pertinent information relevant to a
disability.
Ability to compose a claims determination.
Ability to prepare routine correspondence in requesting medical information.
Ability to summarize, in writing, statements of fact in support of claims determinations.
DISABILITY EVALUATION SPECIALIST
Nature of Work: Under general supervision, performs professional work at the full-
performance level examining and evaluating data to determine eligibility for disability
benefits under Titles II and XVI of the Social Security Act. Secures and analyzes medical,
psychological, vocational and other evidence, utilizing knowledge of federal policies,
regulatory codes, legislation, directives, court precedents or other guidelines. Assigned
claims involve complex medical, legal and vocational issues. May request consultative
medical examinations to assure adequacy of documentation and/or resolve inconsistencies
in submitted evidence. Performs related work as required.
Distinguishing Characteristics: Work at this level is distinguished by the
assignment of a more significant amount of difficult cases such as those with conflictingmedical, legal and vocational issues. These cases involve researching federal court
decisions to determine precedents in the issues.
Examples of Work
Develops initial and or reconsideration cases by sending letters requesting information
to agencies, hospitals, sources and the claimants.
Reviews and analyzes medical and vocational evidence upon receipt.
Telephones doctors, hospitals and claimants to clear up conflicting information or to
obtain further medical information.
Requests a consultative medical examination if there is not enough evidence to
determine a case; authorizes a travel expense payment for the claimant.
Files information and evidence into appropriate case files.
Evaluates claimant's vocational background, age and education to decide the types of
work the claimant could perform in cases where physicians indicate the claimant
has residual functional capacities; makes referrals to Handicapped Children's
Services or Vocational Rehabilitation.
Writes final determinations of entitlement, personalized explanations of wholly or
partially unfavorable determinations and technical rationales; designates
appropriate notices of the determination to be mailed to the claimant by the DDS
or SSA.
Meets with supervisor as necessary to discuss difficult cases and to resolve problems.
Update Program Operations Manuals and other information to keep abreast of changes
in policy and procedure.
Knowledge, Skills and Abilities
Thorough knowledge of federal laws and regulations pertaining to the Disability
Insurance Program under Titles II and XVI of the Social Security Act.
Knowledge of a wide range of occupations and their components.
Knowledge of and ability to summarize, analyze, synthesize, and interpret complex
medical data.
Skill in preparing written communications and quasi-legal documents.
Ability to use the
Dictionary of Occupational Titles effectively.
Ability to establish and maintain effective relationships with claimants, public officials,
physicians, hospital administrators, attorneys and other professional personnel.
Ability to develop and evaluate pertinent facts and evidence related to claims
adjudication.
Ability to present ideas clearly and concisely.
DISABILITY EVALUATION SPECIALIST, SENIOR
Nature of Work: Under limited supervision, performs professional work at the full-
performance level examining and evaluating data to determine eligibility for disability
benefits under Titles II and XVI of the Social Security Act. Secures and analyzes medical,psychological, vocational and other evidence, utilizing knowledge of federal policies,
regulatory codes, legislation, directives, court precedents or other guidelines. Assignments
may include but are not limited to adjudication of initial, reconsideration and continuing
disability claims; professional relations activities; lead worker duties such as coaching and
monitoring work of new employees or offering advice on complex issues; and performing
quality assurance reviews. Work may involve reviewing case determinations for adequate
documentation, correct decision, and compliance with SSA's standards. Confers with
medical or other professionals to resolve claim issues. Performs related work as required.
Distinguishing Characteristics: Typically, work at a level is characterized by a
caseload of all types of disability claims to include complex claims such as court cases and
continuing disability reviews. Incumbents may supervise and/or review the work of other
examiners. The incumbent may work as a quality control reviewer.
Examples of Work
Develops initial and or reconsideration cases by sending letters requesting information
to agencies, hospitals, sources and the claimants.
Reviews and analyzes medical and vocational evidence upon receipt.
Telephones doctors, hospitals and claimants to clear up conflicting information or to
obtain further medical information.
Requests a consultative medical examination if there is not enough evidence to
determine a case; authorizes a travel expense payment for the claimant.
Files information and evidence into appropriate case files.
Evaluates claimant's vocational background, age and education to decide the types of
work the claimant could perform in cases where physicians indicate the claimant
has residual functional capacities; makes referrals to Handicapped Children's
Services or Vocational Rehabilitation.
Writes final determinations of entitlement, personalized explanations of wholly or
partially unfavorable determinations and technical rationales; designates
appropriate notices of the determination to be mailed to the claimant by the DDS
or SSA.
Meets with supervisor as necessary to discuss difficult cases and to resolve problems.
Update Program Operations Manuals and other information to keep abreast of changes
in policy and procedure.
Determines whether decisions of entitlement are correct and whether documentation
is sufficient and if the decisions are accurate.
Consults with physicians about complex medical cases to determine whether more
detailed information would clarify the decision of the case, or if proposed medical
assessment is correct.
Writes explanations of deficiencies of information and suggests corrective action to the
Disability Evaluation Specialist.
Reviews deficient cases returned by central and/or regional offices of the Social
Security Administration (SSA); records the deficiency and takes corrective action.
Writes special reports or analyses of work received by the unit, such as monthly
reports, reports on the most prevalent types of cases or the percentage of cases
being returned for deficiencies of information.
Trains new employees during orientation in office procedures and casework
development; teaches Social Security medical and vocational guidelines.
Fills in for other examiners in their absence to maintain the work flow of the unit.
Returns work to other examiners to meet time constraints.
Consults with other examiners to offer advice or solve problem cases.
May review random cases of each examiner in the unit; checks for accuracy,
processing time or errors on the part of Social Security, the Disability Determination
Section or the examiner.
May review all requests made for consultative examinations to ensure requests are
appropriate and complete.
May participate in special projects as needed.
Knowledge, Skills and Abilities
Knowledge of Federal laws and regulations pertaining to the Disability Insurance
Program under the Social Security Act.
Knowledge of a wide range of occupations and their components.
Knowledge of and ability to summarize, analyze, synthesize, and interpret complex
medical data.
Skill in preparing written communications and quasi-legal documents.
Ability to utilize the
Dictionary of Occupational Titles effectively.
Ability to establish and maintain effective relationships with claimants, public officials,
physicians, hospital administrators, attorneys and other professional personnel.
Ability to develop and evaluate pertinent facts and evidence related to claims
adjudication.
Ability to present ideas clearly and concisely.
Comparing this series with the claims management series, very little similarity can
be gleaned from the classification specifications. LIII G. Exs. 14, 21-23. In actual practice,
the positions share the similarity of reviewing medical records.
The Disability Evaluation Specialist series deals with medical conditions which
equate to total disability. Only the Deputy Claims Manager positions shows similarity in this
regard. Additionally, the Disability Evaluation Specialists are audited by the Social SecurityAdministration, work under time deadlines imposed by Social Security, and are subject to
contractual sanctions if accuracy is determined to fall below 95 percent.
Grievants also compare their positions with the Underwriter II classification, a position
within Workers' Compensation which evaluates employer contribution rates. The
underwriter positions are distinguished from each other depending upon the premium dollar
levels of the employers. Underwriter II is assigned pay grade 16. The classification
specification for Underwriter II follows.
UNDERWRITER II
Nature of Work
Under general supervision, performs advanced level professional work in evaluating,
classifying and rating employers applying for Workers' Compensation insurance and rating
plans including guaranteed cost, retrospective rating, adverse risk, and deductible plans;
performs as a team leader in overseeing the work of underwriters and associate staff;
assists in the mentoring and training of underwriting staff. Applies knowledge of rating
plans, employer financial standing and credit risk, employer accident experience, statutes,
rules and underwriting standards to support underwriting decisions. Resolves policy
problems. Performs related work as required.
Distinguishing Characteristics
Positions allocated to this class typically perform, with limited assistance from the
Underwriting Team Leader, the more complex underwriting work such as retrospective
rating, adverse risk, and deductible rating plan underwriting; may assist the Underwriting
Team Leader in goal setting, special projects and team management; assists in training
other underwriting staff.
Examples of Work
Evaluates and prices complex accounts such as retrospective rating, adverse risk, and
deductibles; reviews decisions with Underwriting Team Leader as necessary.
Calculates premiums based on classifications, payroll exposures, credit risks, and loss
control initiatives; adjusts reserves and premium taxes accordingly.
Reviews safety surveys and classification studies to ensure hazards are properly
identified and controlled and to identified activities not reflected in employer
applications that would result in additional classification or reclassification.
Analytical/Problems Solving
Compiles data to resolve problems or deviations from established underwriting
standards and procedures; analyzes complaints and inquiries regarding insurance
contracts, endorsement requests, coverages, and rating plans.
Leadership
Assists in the leadership and motivation of support staff to achieve underwriting goals
and objectives. Provides assistance in resolving operational issues.
Influencing/Negotiation
Communicates rating plan options to employers to influence accurate selection of
coverage options. Demonstrates ability to reach successful settlement of account
issues through discussion and compromise.
Account Management and Profitability
For new and renewal employer accounts, performs underwriting account reviews,
reviews premium audit results and loss control reports to assess and measure
account profitability.
Reviews safety surveys and classification studies to ensure hazards are properly
identified and controlled to identify activities not reflected in employer applications
that would result in additional classification or reclassification.
Communication
Responds to inquiries from state agencies and public entities regarding coverages,
rating plans, and resulting premium calculations.
Communicates underwriting activities to Performance Council and Division
Management.
Develops and delivers presentations to new and existing employers.
Customer Service
Provides customer service to employers including the issuing of provisional coverages,
certificates, as well as assisting with prompt responses to employer inquiries.
Teamwork
Participates in training classes; supports senior staff and management in completing
the work of the unit.
Assists in special projects and assists in training underwriter trainees and support staff.
Knowledge, Skills and Abilities
Knowledge of Workers' Compensation laws, policies, and procedures regarding risk
administration, insurance and risk management, field auditing, accounting or
business administration, underwriting and loss control.
Knowledge of Board of Risk and Insurance Management legal basis, and the rules and
regulations governing system operation, division policies, procedures, rules and
regulations; laws, rules and regulations pertaining to the insurance industry.
Knowledge of advanced mathematics, including statistics.
Knowledge of form and content of insurance policies.
Knowledge of underwriting processes, principles, practices and underwriting
administration; the theory, principles, and practices of insurance, risk selection and
classification.
Knowledge of various insurance coverages, pricing methods, and procedures.
Ability to determine and/or calculate employer payroll exposures, classifications,
experience or other rating plan modifications, and credit risks for purposes of
determining the appropriate rating plan for each employer.
Ability to explain why a particular rating plan is more beneficial for a particular
employer.
Ability to operate a personal computer and use spreadsheet and word processing
software in daily work.
Ability to analyze complex data and make sound judgments relating to underwriting
administration; to read and interpret financial statements.
Ability to maintain effective working relationships with staff, legislators, state and local
officials public employees and the general public.
Ability to communicate effectively, both orally and in writing.
Ability to speak before groups.
Ability to analyze and evaluate specific complaints and inquiries regarding insurance
contracts, coverage and rating plans.
Inasumuch as the Underwriter series involves work of a completely different
character from that of the claims management series, the classifications cannot be deemed
comparable. George Flick, Director of Underwriting, testified the Underwriter series pay
grades were necessary to attract employees, that he has great turnover in the Underwriter
II and III positions, and the pay grades for Underwriter II and III are significantly below
private sector pay.
Finally, Grievants drew comparison between the District Claims Manager, pay grade
13 and the Employment Programs Field Supervisor position, pay grade 16, which is
reproduced as follows:
EMPLOYMENT PROGRAMS FIELD SUPERVISOR
Nature of Work
Under administrative direction, performs administrative and supervisory work at the
full-performance level, with responsibility for the supervision of local unemployment
compensation and job service offices in a defined area of the state. Has wide
latitude for the exercise of independent judgement. Performs related work as
required.
Examples of Work
Visits local claims or job service offices; reviews records, reports, and talks with local
manager and staff to identify program problems and to evaluate procedures.
Directs local office staff in the implementation of any procedural changes or deficiency
correction.
Periodically reviews and evaluates specific programs such as employer relations,
placement or JTPA; discusses findings with local manager and makes
recommendations for improved service.
Determines local unit requirements and needs regarding personnel and equipment;
makes recommendation for change.
Advises agency management on the effectiveness of claims and job service policies and
need for modification.
Reviews local office management staffing patterns, staffing levels and workload; plans
and directs staffing changes.
Prepares written report describing all records review and field visit findings.
Recommends training for local managers as appropriate.
Provides interpretation of agency procedures and policy to local staff in order to ensure
statewide uniformity of policy application.
Interviews and recommends applicants to fill local office manager positions.
Attends various state and area meetings and training sessions; conducts special
program review to correct specific office problem.
Performs regular efficiency evaluation of local manager; discusses areas for
improvement and approves local office operational plans.
Knowledge, Skills and Abilities
Knowledge of the organization, function and policies of the Bureau of Employment
Programs.
Knowledge of the state and federal laws and regulations pertaining to unemployment
claims, employment service or other specialized program area.
Knowledge of employment and industrial conditions in the state.
Ability to establish and maintain an effective working relationship with fellow employees
and the public.
Ability to plan and review the work of staff of the local offices in a defined area.
Ability to exercise good judgement in appraising situations, in making decisions and
interpreting regulations.
Ability to exercise general administrative direction over the local offices in the area.
With respect to the Employment Programs Field Supervisor position, Mr. Basford
testified that only two such positions exist, and he is aware that one of the two is
responsible for supervision of approximately 100 people in ten field officers, and that Field
Supervisors supervise other supervisors who are in the same pay grade as the District
Claims Managers. One of the Employment Programs Field Supervisors is directly
responsible for seven field offices and ultimately responsible for three others. LIII DOP Ex.
5. The other position is directly responsible for ten field offices and ultimately responsible
for one other office. The District Claims Manager classification is not comparable to the
Employment Programs Field Supervisor.
Finally, in comparison with responding states in the southeastern part of the country,
the pay grades utilized for the four claims management classifications approximate the
average of those other states. LIII DOP Ex. 3. Mr. Basford testified that, in establishing pay
grades, a market pricing approach is utilized along with comparison with other
classifications in the plan. This has the ultimate goal of attracting and retaining qualified
employees. He acknowledged that within the plan the strongest comparison was with the
Disability Evaluation Specialists, but also distinguishes those positions from the claims
management positions. Several meetings were held between Personnel and the Bureau
regarding pay grades. The final proposal submitted by Personnel elicited a response from
the Bureau requesting certain changes, including pay grades for Deputy Claims Manager
from pay grade 10 to 11, and for District Claims Manager from 12 to 13, and also requestingan alteration of the minimum pay for Claims Representative II. All of the changes were
adopted by Personnel.
In order for Grievants to prevail they must show that Personnel and the Division
acted in an arbitrary and capricious manner in assigning pay grades to the claims
management classifications. To meet this burden Grievants must show Personnel and the
Division had no rational basis for placing Grievants in their current pay grade.
See Trimboli,
supra. A detailed review of Grievants' classifications and pay grades, vis-a-vis other
classification specifications and pay grades, does not demonstrate that Personnel was
clearly wrong or acted in an arbitrary and capricious manner in assigning pay grades to the
claims management series.
B.
Whether the individual classifications of Angela Miller Gaither, Jo Ann
Slayton, Susan Shamblin, Clark Schulz, and Helen Fletcher are clearly
wrong?
In order for these five Grievants to prevail upon a claim of misclassification, they
must prove by a preponderance of the evidence that their duties for the relevant period
more closely match another cited Personnel classification specification than that under
which they are currently assigned.
See generally,
Hayes v. W. Va. Dept. of Natural
Resources, Docket No. NR-88-038 (Mar. 28, 1989). Personnel specifications are to be read
in pyramid fashion,
i.e., from top to bottom, with the different sections to be considered as
going from the more general/more critical to the more specific/less critical,
Captain v. W. Va.
Div. of Health, Docket No. 90-H-471 (Apr. 4, 1991); for these purposes, the Nature of
Work section of a classification specification is its most critical section.
Atchison v. W. Va.
Dept. of Health, Docket No. 90-H-444 (Apr. 22, 1991);
see generally,
Dollison v. W. Va.Dept. of Employment Security, Docket No. 89-ES-101 (Nov. 3, 1989). The key to the
analysis is to ascertain whether Grievants' current classifications constitute the best fit for
their required duties.
Simmons v. W. Va. Dept. of Health and Human Resources, Docket
No. 90-H-433 (Mar. 28, 1991). The predominant duties of the position in question are class-
controlling.
Broaddus v. W. Va. Div. of Human Serv., Docket Nos. 89-DHS-606, 607, 609
(Aug. 31, 1990).
Additionally, class specifications are descriptive only and are not meant to be
restrictive. Mention of one duty or requirement does not preclude others.
W. Va. Admin.
Rule, § 4.04(a);
Coates v. W. Va. Dept. of Health and Human Resources, Docket No. 94-
HHR-041 (Aug. 29, 1994). Even though a job description does not include all the actual
tasks performed by a grievant, that does not make the job classification invalid.
W. Va.
Admin. Rule, § 4.04(d). Finally, Personnel's' interpretation and explanation of the
classification specifications at issue, if said language is determined not to be ambiguous,
should be given great weight unless clearly erroneous.
See,
W. Va. Dept. of Health v.
Blankenship, 431 S.E.2d 681, 687 (W. Va. 1993).
1.
Angela Miller Gaither
Angela Miller Gaither, included in the grievance as Angela Miller but subsequently
married, is currently a Claims Representative I and was so reclassified on April 1, 1996. G.
Ex. 121. She believes she should have been reclassified as a Claims Representative II as
of April 1, 1996. Ms. Gaither's situation is unique among the grievants in that she is located
in Martinsburg, as opposed to working in the central office in Charleston. As of April 1,
1996, she was the only claims person working in the Martinsburg office, a situation whichcontinued until November, 1998. In addition to claims regularly assigned to her, she also
handles telephone and walk-in inquiries, although she cannot estimate how much of her
time is spent on these latter duties. Ms. Gaither testified she handles claims involving more
than 4 weeks indemnity benefits, authorizes surgeries and handles carpal tunnel claims, all
tasks which fall under the duties of a Claims Representative II. A report generated March
1, 1999, shows that virtually all of her assigned claims exceed 4 weeks of benefits. G. Ex.
122. Although Ms. Gaither testified on direct examination that she did Claims
Representative II work 50 percent of her time as of April 1, 1996, upon cross-examination
she testified that the difficulty of her claims increased over time after April 1, 1996, and that
she probably got to the 50 percent level in 1998.
Ms. Gaither's District Claims Manager, Lila Burkhart, testified the majority of Ms.
Gaither's work as of April 1, 1996, was at the Claims Representative I level and that she
had not yet completed training. Burma Mullens, a co-worker who has filled in for Ms.
Gaither in Martinsburg, testified that a majority of Ms. Gaither's work is at the Claims
Representative II level, but she does not know what the level was as of April 1, 1996. Ms.
Mullens stated that when she had been in Martinsburg during the past year, Ms. Gaither
had two file drawers full of claims at the Claims Representative II level. She also testified
Ms. Gaither did not get as many claims assigned on a daily basis because of her office
management duties.
Clearly, the preponderance of the evidence shows that Ms. Gaither currently
performs the work of a Claims Representative II. However, she has failed to show by apreponderance of the evidence that she was performing a majority of Claims
Representative II work as of the date of reclassification, April 1, 1996.
2.
Jo Ann Slayton
Jo Ann Slayton was reclassified as a Claims Representative II on April 1, 1996, and
remains so classified currently. She asserts she was working at the Deputy Claims
Manager level as of April 1, 1996. Ms. Slayton testified she handled claims of over 104
weeks indemnity benefits both before and after April 1, 1996. She testified that, as of April
1, 1996, she had no fatalities, no catastrophic claims, and had done no supervision of other
employees. Further, the one permanent total disability claim she had on April 1, 1996, was
reassigned. Although she stated most of her claims, both now and at the time of
reclassification, exceeded 104 weeks of benefits, a report generated February 26, 1999,
reflects 20 of 79 claims equaled or exceeded the 104 benefit week plateau. G. Ex. 105.
She was unable to say what percentage of her time was spent on Deputy level work as of
April 1, 1996. It is found Ms. Slayton has failed to prove by a preponderance of the
evidence that as of April 1, 1996, she devoted a majority of her time to performing the tasks
of a Deputy Claims Manager.
3.
Susan Shamblin
Susan Shamblin was reclassified as a Claims Representative II on April 1, 1996, and
remains so today. She feels she should have been reclassified as Deputy Claims Manager.
Ms. Shamblin was off work on Workers' Compensation when the Position Description forms
were completed by the employees in August, 1995, but one was submitted by her then-supervisor, Marcella Coleman, stating she would be performing the same duties as others
on her team. Ms. Shamblin returned to work in December, 1995.
Ms. Shamblin testified she now spends the predominant amount her time on claims
characteristic of Deputy Claims Manager work, although she handles no catastrophic claims
or fatalities. She estimated her higher level work was currently 55/45 or 60/40 compared
to Claims Representative II work. She gradually began doing higher level work, primarily
cases involving over 104 weeks of benefits, but does not remember what percentage of her
time may have been at the higher level as of April 1, 1996; nor does she remember when
her work load may have become predominantly that of a Deputy. Grievant stated she had
been told by her supervisor that she was not reclassified as a Deputy Claims Manager on
April 1, 1996, because she had been off work on Workers' Compensation. Other than Ms.
Shamblin's statement in that regard, no other evidence or testimony was produced to
support her claim that she was discriminated against because she had been off on Workers'
Compensation.
It is found that Ms. Shamblin has failed to prove by a preponderance of the evidence
that she was predominantly performing the duties of a Deputy Claims Manager as of April
1, 1996. It is further found that Ms. Shamblin has failed to show by a preponderance of the
evidence that discriminatory treatment, if any, as a consequence of her having been off on
Workers' Compensation, resulted in misclassification or any other harm.
4.
Clark Schulz was reclassified as a Claims Representative II on April 1, 1996, and
remains so classified today. He was previously classified as a Supervisor II. He believeshe should have been reclassified as a Deputy Claims Manager. Mr. Schultz testified he had
worked on claims involving 104 weeks or more indemnity benefits and fatalities from August
1995, through April 1, 1996, but that thereafter was assigned claims of lesser severity. He
testified that as of April 1, 1996, he was spending less than 50 percent of his time on claims
characteristic of a Deputy Claims Manager, that before reclassification he got about 40
percent Deputy work, but that since it has dropped to 5 percent or less. He states he was
told he was not reclassified as a Deputy Claims Manager because it would not have
resulted in a pay raise. Prior to reclassification, Mr. Schulz had some supervisory
responsibilities, but after, those duties ceased.
Mr. Schulz has failed to prove by a preponderance of the evidence that he was
predominantly performing the duties of a Deputy Claims Manager at the time of the
reclassification on April 1, 1996. To the extent Mr. Schulz contends he was functionally
demoted by virtue of having gone from a supervisory position to a non-supervisory position,
it is found he has failed to prove by a preponderance of the evidence that his change in
classification amounted to a functional demotion. The change simply involved doing work
of a different character, not of a lesser order or importance.
5.
Helen Fletcher
Helen Fletcher is a Claims Representative II and was so classified as of April 1,
1996. She feels she should have been made a Deputy Claims Manager as of that date.
She believes her work is predominantly that of a Deputy Claims Manager. She currently
has 136 active cases of which she estimates 20 percent involve 104 or more weeks of
indemnity benefits, including one fatality, three catastrophic claims and one permanent totaldisability. Ms. Fletcher testified she worked on some claims involving 104 weeks or more
indemnity benefits as of April 1, 1996. She performs no supervisory duties. She testified
that as of April 1, 1996, she spent 50 percent, but not more than 50 percent, of her time
performing work characteristic of a Deputy Claims Manager.
Crystal Wiseman, a co-worker of Ms. Fletcher's, testified Ms. Fletcher does not get
as much Deputy work as does Terence Shawn Wilborne, another misclassification grievant.
Burma Mullens, another co-worker of Ms. Fletcher, testified that a majority of Ms. Fletcher's
current work is at the Deputy level. However, Ms. Mullens also testified that as of April 1,
1996, she cannot say that a majority of Ms. Fletcher's work was as a Deputy Claims
Manager, although a lot of her questions were above a Claims Representative II level. Lila
Burkhart, who is Ms. Fletcher's District Claims Manager, testified that as of April 1, 1996,
a majority of Ms. Fletcher's work was at the Claims Representative II level. It is found Ms.
Fletcher has failed to prove by a preponderance of the evidence that as of April 1,1996, she
was predominantly performing the tasks of a Deputy Claims Manager.
FINDINGS OF FACT
The following findings of fact are derived wholly from the testimony and evidence
presented at the level three hearing.
A.
1. Commencing in 1994, the Workers' Compensation Division undertook a
reorganization of the manner in which Workers' Compensation claims were processed.
Previously, different units or sections were responsible to manage different aspects of an
individual claim. It was proposed to organize claims management teams with geographicalresponsibility so that an individual claim would be assigned to an individual claim
representative or manager who would, normally and ideally, handle all aspects of the claim
from start to finish.
2. The reorganization was a gradual process with such teams being created and
aligned as the process developed. Persons assigned to work on the teams, eventually
involving approximately one hundred fifty (150) people, held a variety of job classifications.
It was understood that as the reorganization matured, appropriate job classifications,
classification specifications, and pay grades would be developed, and the individuals would
be reclassified.
3. The reorganization culminated in a reclassification which was effective April
1, 1996. Four new job classifications were created: Claims Representative I, Claims
Representative II, Deputy Claims Manager and District Claims Manager. The
reclassification commenced in July, 1995, and involved a variety of conferences, obtaining
position description forms from the employees, performing sample desk audits, refining the
job classifications and specifications, and assigning pay grades to each of the
classifications.
4. The pay grades assigned to these new classifications were: Claims
Representative I, pay grade 8, which pays annual salaries ranging from $16,116 to $26,256;
Claims Representative II, pay grade 9, which pays annual salaries ranging from $17,256
to $28,104, although there was provided a special minimum hiring rate of $18,468; Deputy
Claims Manager, pay grade 11, which pays annual salaries ranging from $19,764 to$32,184; and District Claims Manager, pay grade 13, which pays annual salaries ranging
from $22,264 to $36,852.
5. Grievants drew a comparison between their positions and the Disability
Evaluation Specialist classification series. This series functions in the Division of
Rehabilitation Services, and, under review from the Social Security Administration,
evaluates applicants for Social Security disability. This series was assigned pay grades as
follows: Disability Evaluation Specialist, Trainee, pay grade 10; Disability Evaluation
Specialist, pay grade 11; and Disability Evaluation Specialist, Senior, pay grade 12.
6. Very little similarity can be gleaned from the classification specifications. In
actual practice, the positions share the similarity of the responsibility of evaluating medical
records. The Disability Evaluation Specialist series imposes a minimum educational
qualification of graduation from a four-year college program in specific fields, while the
Claims Representative I, II, and Deputy Claims Manager positions require a high school
diploma. The Disability Evaluation Specialist series deals with medical conditions which
equate to total disability. Only the Deputy Claims Manager positions shows similarity in this
regard. The Disability Evaluation Specialists are audited by the Social Security
Administration, work under the deadlines imposed by that agency, and are subject to
contractual sanctions if accuracy is determined to fall below 95 percent.
7. The Underwriter positions are distinguished from each other depending upon
the premium dollar levels of the employers. Underwriter I is assigned pay grade 12,
Underwriter II, pay grade 16, and Underwriter III, pay grade 18. Inasmuch as theUnderwriter series involves work of a completely different character from that of the claims
management series, the classifications cannot be deemed comparable.
8. With respect to the Underwriter II classification, no valid comparison can be
made. The functions are simply not comparable.
9. With respect to the Employment Programs Field Supervisor position, only two
such positions exist in State government, and one of the two positions is responsible for
supervision of approximately 100 people in ten field offices. Those Field Supervisors
supervise other supervisors who are in the same pay grade as the District Claims
Managers.
10. In comparison with responding states in the southeastern part of the country,
the pay grades utilized for the four claims management classifications approximate the
average of those other states.
11. In establishing the pay grades for the four classifications, a market price
approach was used in comparison with other classifications in the plan. Several meetings
were held between Personnel and the Division regarding the pay grades. The final
proposal submitted by Personnel elicited a response from the Division requesting certain
changes, including pay grades for Deputy Claims Manager from pay grade 10 to pay grade
11, and for District Claims Manager from pay grade 12 to pay grade 13, and also requesting
an alteration of the minimum pay for Claims Representative II of $18,468, all of which
changes were adopted by Personnel.
B.
Individual Classifications
12. The classification specifications adopted delineated between the
classifications based on types, complexity, or duration, of claims. The Position Description
Forms completed by the employees, in accordance with the instructions contained within
the form, and without instruction to the contrary, contain descriptions of tasks without
reference to types, complexity, or duration of the claims being worked on. All claims
generally involve many common tasks regardless of the type, complexity, or duration.
Consequently, the Position Description Forms were not of much assistance in the
development of the specifications and the reclassification of the positions, and are of little
or no help in resolving the misclassification issues here presented. The value of the
Position Description Forms in resolving these issues is further diluted by the fact that the
Position Description Forms were completed in August, 1995, and the reclassification did not
become effective until April 1, 1996.
13. The delineating characteristics between the classification specifications
significantly focus on the duration of indemnity benefits of claims. In this regard, all claims,
with the exception of fatalities, commence with minimal indemnity benefits. Some claims
which initially may be expected to reach classification specification plateaus do not, while
other claims may unexpectedly exceed expected classification specification plateaus.
Consequently, all employees have case loads which include claims which may be lower
than or higher than that called for in the classification specification.
14. Each employee has a computer system security clearance depending upon
his or her classification and the types of claims he or she normally handles. The securityclearance levels were adjusted from time to time, so that employees were able to access
higher security levels. The evidence adduced to describe the relationship between the
security clearance levels and the individual classifications was of limited significance, due
to the fact that the security clearance levels were often manipulated in order to allow
employees to access the higher levels.
15. Angela Gaither Miller, Claims Representative I, in the Martinsburg office,
handled some claims of 104 weeks of indemnity benefits, authorized surgeries and handled
carpal tunnel claims, all tasks which fall under the duties of a Claims Representative II. As
of April 1, 1996, Ms. Miller spent less than fifty (50) percent of her time on claims
representative of a Claims Representative II.
16. Jo Ann Slayton, Claims Representative II, handled claims of over 104 weeks
indemnity benefits both before and after April 1, 1996. As of April 1, 1996, she had no
fatalities, no catastrophic claims, no supervisory duties, and the one permanent total
disability claim she had on April 1, 1996, was reassigned. Ms. Slayton was unable to show
she spent fifty (50) percent or more of her time on claims representative of a Deputy Claims
Manager as of April 1, 1996.
17. Susan Shamblin, Claims Representative II, was off work on Workers'
Compensation when the Position Description forms were being completed in August, 1995,
but one was submitted on her behalf by her supervisor. Ms. Shamblin returned to work in
December, 1995. Ms. Shamblin has no fatalities or catastrophic claims, and could not say
for certain what percentage of her time she spent on claims representative of a Deputy
Claims Manager as of April 1, 1996. 18. Clark Schulz, Claims Representative II, spent less than fifty (50) percent of his
time performing work representative of the Deputy Claims Manager as of April 1, 1996.
19. Helen Fletcher, Claims Representative II, spent less than fifty (50) percent of
her time performing work representative of the Deputy Claims Manager as of April 1, 1996.
CONCLUSIONS OF LAW
1. Grievants have the burden of proof in this case to establish, by a
preponderance of the evidence, that the assignment of their pay grades was clearly wrong,
arbitrary, capricious, contrary to regulation, or otherwise illegal and improper.
W. Va. Code
§ 29-6A-6;
Bennett v. Dept. of Health and Human Resources, Docket No. 93-HHR-518
(June 23, 1995);
Johnston v. Dept. of Health and Human Resources, Docket No. 94-HHR-
2006 (June 5, 1995). Grievants have failed to meet their burden.
2.
W. Va. Code § 29-6-10 authorizes the State Personnel Board to promulgate
rules for the implementation and administration of the classified State employees' job
classification and pay plans for which plans the Personnel Board is responsible.
Frome v.
W. Va. Dept. of Health and Human Resources, Docket No. 94-HHR-140 (Nov. 29, 1994)
3.
W. Va. Code § 29-6-10 vests the responsibility for preparing, maintaining, and
revising classified State employees' job classification plans and pay plans in the State
Personnel Board.
4. Personnel assigned pay grades to class titles so that equity is achieved within
a family of class titles, as well as within the agency as a whole.
5. 143 C.S.R. 1 § 4.01 requires Personnel to confer with the appointing
authority when adopting and implementing a job classification plan for classified Stateemployees, and requires Personnel to base its job classification plan upon an investigation
and analysis of the duties and responsibilities for each position.
6. The Personnel Board has the authority and responsibility to establish a pay
plan for all positions within the classified service, guided by the principle of equal pay for
equal work.
W. Va. Code § 29-6-10(2).
7. The Personnel Board has wide discretion in performing its duties although it
cannot exercise its discretion in an arbitrary or capricious manner.
Moore v. Dept. of Health
and Human Resources, Docket No. 94-HHR-126 (Aug. 26, 1994). The Personnel Board
has properly exercised its discretion in this matter.
8. [T]he rules promulgated by the Personnel Board are given the force and
effect of law and are presumed valid unless shown to be unreasonable or not to conform
with the authorizing legislation.
Farber v. Dept. of Health and Human Resources, Docket
No. 95-HHR-052 (July 10, 1995).
See State ex rel Callaghan v. W. Va. Civil Service
Comm'n, 166 W. Va. 117, 273 S.E.2d 72 (1980).
9. Interpretations of statutes by bodies charged with their administration are
given great weight unless clearly erroneous, and an agency's determination of matters
within its expertise is entitled to substantial weight. Syl. Pt. 3,
W. Va. Dept. of Health v.
Blankenship, 189 W. Va. 342, 431 S.E.2d 681 (1993);
Princeton Community Hosp. v. State
Health Planning, 174 W. Va. 558, 328 S.E.2d 164 (1985);
Dillon v. Bd. of Educ. of County
of Mingo, 171 W. Va. 631, 301 S.E.2d 588 (1983).
10. An employee who challenges the pay grade to which his or her position was
assigned bears the burden of proving the claim by a preponderance of the evidence. Thisis a difficult undertaking.
Blankenship,
supra;
Bennett,
supra;
Johnston,
supra;
Thibault v.
Div. of Rehabilitation Services, Docket No. 94-RS-0061 (May 31, 1995);
Frome,
supra;
See
O'Connell v. W. Va. Dept. of Health and Human Resources, Docket No. 95-HHR-251 (Oct.
13, 1995).
11. An action is arbitrary and capricious if the agency making the decision did not
rely on criteria intended to be considered, explained or reached the decision in a manner
contrary to the evidence before it, or reached a decision that is so implausible that it cannot
be ascribed to a difference of opinion.
See Bedford County Memorial Hosp. v. Health and
Human Serv., 769 F.2d 1017 (4th Cir. 1985);
Yokum v. W. Va. Schools for the Deaf and the
Blind, Docket No. 96-DOE-081 (Oct. 16, 1996).
12. While a searching inquiry into the facts is required to determine if an action
was arbitrary and capricious, the scope of review is narrow, and an administrative law judge
may not simply substitute her judgment for that of Personnel.
See generally,
Harrison v.
Ginsberg, 169 W. Va. 162, 286 S.E.2d 276 (1982).
13. Unless a grievant presents sufficient evidence to demonstrate Personnel's
determination of pay grade is clearly wrong, or the result of an abuse of discretion, an
administrative law judge must give deference to Personnel and find that the pay grade
assignment was correct.
Farber,
supra;
O'Connell,
supra.
14. In order for Grievants to prevail they must show that the Division and
Personnel acted in an arbitrary and capricious manner in assigning their pay grades. To
meet this burden, Grievants must show the Division and Personnel had no rational basis
for placing Grievants in their current pay grade, or that they acted in bad faith by assigningtheir classifications to pay grades despite overwhelming evidence indicating the
classification should be otherwise placed.
15. In order for Grievants Gaither, Slayton, Shamblin, Schulz, and Fletcher to
prevail upon a claim of misclassification, they must prove by a preponderance of the
evidence that their duties for the relevant period more closely match another cited
Personnel classification specification than that under which they are currently assigned.
See generally,
Hayes v. W. Va. Dept. of Natural Resources, Docket No. NR-88-038 (Mar.
28, 1989). Grievants have failed to meet their burden on these issues.
Accordingly, this grievance is DENIED.
Any party or the West Virginia Division of Personnel may appeal this decision to the
Circuit Court of Kanawha County or to the circuit court of the county in which the grievance
occurred. Any such appeal must be filed within thirty (30) days of receipt of this decision.
W. Va. Code §29-6A-7 (1998). Neither the West Virginia Education and State Employees
Grievance Board nor any of its Administrative Law Judges is a party to such appeal, and
should not be so named. However, the appealing party is required by W. Va. Code § 29A-
5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The appealing
party must also provide the Board with the civil action number so that the record can be
prepared and properly transmitted to the appropriate circuit court.
___________________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: September 11, 2000
Footnote: 1