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 grievants sought the following relief:


      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.
      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


Knowledge, Skills and Abilities


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

      

                                                                                   
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
      

                                                                                                                                                  Assists attorneys in litigated claims.
                                  
Knowledge, Skills and Abilities
                                                                            
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

Knowledge, Skills and Abilities

      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.

      Reviews and analyzes medical and vocational evidence upon receipt of the claim.
      Files information and evidence into appropriate case files.

Knowledge, Skills and Abilities
      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 to use the Dictionary of Occupational Titles.
      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


Knowledge, Skills and Abilities
      Knowledge of a wide range of occupations and their components.
      Skill in preparing written communications and quasi-legal documents.
      Ability to use the Dictionary of Occupational Titles effectively.
      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

      Reviews and analyzes medical and vocational evidence upon receipt.
            appropriate and complete.
      May participate in special projects as needed.

Knowledge, Skills and Abilities

      Knowledge of a wide range of occupations and their components.
      Skill in preparing written communications and quasi-legal documents.
      Ability to utilize the Dictionary of Occupational Titles effectively.
      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
                                  Analytical/Problems Solving
      
      Leadership
      
      Influencing/Negotiation
      
      Account Management and Profitability
             
      Communication
                    
      Customer Service
      
      Teamwork
              Knowledge, Skills and Abilities
                                                                                                 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


Examples of Work

Knowledge, Skills and Abilities

      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.                                                                         
      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.       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
       A general upgrade of pay grades became effective August 1, 1999, which assigned new pay grades as follows: Claims Representative I, pay grade 10; Claims Representative II, pay grade 11; Deputy Claims Manager, pay grade 13; and District Claims Manager, pay grade 15. This revision was not done as a result of this grievance and has probative value only to the extent of calculating monetary relief to which Grievants may be entitled.
Footnote: 2
      The concept of “equal pay for equal work” is embraced by W. Va. Code § 29-6-10. See AFSCME v. Civil Serv. Comm'n, 181 W. Va. 8, 380 S.E.2d 43 (1989). Previous decisions interpreting that provision have established that employees performing similar work need not receive identical pay, so long as they are paid in accordance with the pay scale for their proper employment classification. Largent v. W. Va. Div. of Health, 192 W. Va. 239, 452 S.E.2d 42 (1994); Salmons v. W. Va. Dept. of Transp., Docket No. 94-DOH- 555 (Mar. 20, 1995); Hickman v. W. Va. Dept. of Transp., Docket No. 94-DOH-435 (Feb. 28, 1995); Tennant v. W. Va. Dept. of Health & Human Resources, Docket No. 92-HHR- 453 (Apr. 13, 1993); Acord v. W. Va. Dept. of Health & Human Resources, Docket No. 91- H-177 (May 29, 1992).