Bragg v. State Workmen's Compensation Commissioner

• Decision Date: 11 March 1969
• Docket Number: No. 12774,12774
• Citation: 166 S.E.2d 162,152 W.Va. 706
• Parties: Jack BRAGG v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Omar Mining Company.
• Court: West Virginia Supreme Court

Page 162

166 S.E.2d 162

152 W.Va. 706

Jack BRAGG v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Omar Mining Company.

No. 12774.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 4, 1969.

Decided March 11, 1969.

Syllabus by the Court

1. 'When the language of a statute is plain and unambiguous, there is no basis for application of rules of statutory construction; but courts must apply the statute according to the legislative intent plainly expressed therein.' Point 1, Syllabus, Dunlap v. State Compensation Director, 149 W.Va. 266 (140 S.E.2d 448).

2. In determining a claimant's rights to workmen's compensation, it is the duty of the Commissioner to construe liberally the evidence in favor of the claimant.

3. 'When a claimant makes timely application in writing, under the provisions of Code, 1931, 23--5--1(a) and 1(b), as amended, for further adjustment of his claim and upon such application establishes a fact or facts not previously considered by the Director in his former findings which would entitle claimant to greater benefits than he has already received, the claim should be reopened, and this Court will reverse an order of the Workmen's Compensation Appeal Board affirming an order of the Director which denies a reopening of the claim.' Syllabus, Justice v. State Compensation Director, 149 W.Va. 216 (140 S.E.2d 424).

4. So long as an award of a claimant falls short of total permanent disability he has a right to have his claim reopened upon satisfying the requirements set out in Code, 1931, 23--5--1 b, as amended, and such right will not be denied solely because he has been physically unable to work since his last award.

5. When it appears from the proof upon which the Workmen's Compensation Appeal Board acted that its finding was plainly wrong an order reflecting that finding will be reversed and set aside by this Court.

Grubb & Wilson, Amos C. Wilson, Logan, for appellant.

Estep, Smith & Eiland, Edward T. Eiland, Logan, for appellee.

CAPLAN, Judge.

This is an appeal by the claimant, Jack Bragg, from an order of the Workmen's Compensation Appeal Board, dated July 9, 1968, wherein the board affirmed an order of the Workmen's Compensation Commissioner holding that the claimant had not made a proper showing for a reopening of his claim.

During his employment with Omar Mining Company, the claimant, on July 23, 1958, suffered an injury to his back. He reported that at the time of the injury he felt a sudden sharp pain in his lower back for which he was treated temporarily by the company doctor. Subsequently, when his back injury failed to respond to treatment, he was hospitalized on two occasions for a total confinement of four weeks. During this hospitalization he received conservative treatment. Thereafter he returned to work for Omar Mining Company but was laid off as a result of a reduction in the employer's labor force.

In April, 1959 the claimant went to Cleveland, Ohio, where he obtained employment with Republic Steel Company. He testified that he worked as a bundler of steel bands which was light work and required no heavy lifting. He continued in this employment until November, 1962, although he underwent disc surgery on October 13, 1959. Mr. Bragg has not worked since November, 1962 and has been receiving social security disability benefits since September, 1963.

The claimant was granted a 50% Permanent partial disability award on December 19, 1961 and an additional 10% Award on July 17, 1963. Subsequently, on April 30, 1964, the claimant applied for a further adjustment of his claim, supporting his application by a report of examination by Dr. F. M. Viscuse, wherein it was recommended that an award of total permanent disability be made. After reopening the claim the Commissioner ruled that the claimant had been fully compensated. Upon protest of that ruling, medical evidence was received, including reports of Dr. C. W. Stallard and Dr. E. R. Chillag, recommending a total permanent disability award. The Commissioner, on April 21, 1966, granted such award, but it was set aside by the Appeal Board on August 23, 1966, the board granting an additional 10% Permanent partial disability. That ruling was appealed to this Court but the application for appeal was refused.

On September 30, 1967 the claimant again sought to reopen this claim. Accompanying his application was a report of an examination of the claimant by Dr. Cesar J. Lesaca. Upon receiving this application, the Commissioner refused to reopen the claim and by order dated July 9, 1968, the Workmen's Compensation Appeal Board affirmed the Commissioner's ruling. It is from this order that the claimant prosecutes this appeal.

The obvious issue here is whether the claimant made a showing which warranted a reopening of his claim. This determination can be made only after examining the provisions of the pertinent satutes and the evidence presented by the claimant. Code, 1931, 23--5--1, as amended, provides: '* * * where an injured employee makes application in writing for a further adjustment of his claim * * * and such application discloses cause for a further adjustment thereof, the commissioner shall, after due notice to the employer, make such modifications or changes with respect to former findings * * * as may be justified * * *.' It is therein further provided that if either party be dissatisfied with any modification he may object and shall be entitled to a hearing.

Section 1b of the above statute provides the conditions under which the Commissioner will be justified in reopening the claim for further adjustment. It reads, in part, as follows: 'If, however, in any case in which application for further adjustment of a claim is filed under the next preceding section ( § 23--5--1a), it shall appear to the commissioner that such application fails to disclose a progression or aggravation in the claimant's condition, or some other fact or facts which were not theretofore considered by the commissioner in his former findings, and which would entitle such claimant to greater benefits than he has already received, the commissioner shall, within sixty days from the receipt of such application, notify the claimant and the employer that such application fails to establish a prima facie cause for reopening the claim.'

The claimant, of course, takes the position that his petition and the report of examination submitted therewith show a progression in his condition which satisfies the requirements set out in Section 1b and warrants a reopening of his claim. The employer, on the other hand, contends that the showing made by the claimant does not satisfy the requirements of the statute. It asserts that in order to justify a further adjustment of the claim the claimant must show not only a progression or aggravation in the claimant's condition which would entitle such claimant to greater benefits than he has already received, but he must also show that any further physical impairment reduced his ability to work. Only if his ability to work were reduced, says the employer, would the claimant be entitled to greater benefits than he has already received.

We reject the employer's theory in this case for the reason that, in our opinion, its acceptance would necessitate our reading an additional requirement into the statute. The claimant would be obligated to show not only that his condition has worsened but by some means would have to prove to the satisfaction of the Commissioner that his ability to work has been reduced. This, the legislature did not require when enacting this statute, although it easily could have done so if it had so intended.

The right to workmen's compensation benefits is wholly statutory. Haines v. Workmen's Compensation Commissioner, 151 W.Va. 152, 150 S.E.2d 883; Dunlap v. State Compensation Director, 149 W.Va. 266, 140 S.E.2d 448. Therefore, claims, awards, reopening of claims and all such matters must be considered and determined in accordance with the provisions of the appropriate compensation statute. Such statutes, where plain and unambiguous, will not be construed but will be applied by the courts to accomplish what the legislature clearly intended to do. Dunlap v. State Compensation Director, 149 W.Va. 266, 140 S.E.2d 448....