Allen v. Workers' Compensation Com'r and Consolidation Coal Co.

• Court: West Virginia Supreme Court
• Writing for the Court: HARSHBARGER; NEELY
• Citation: Allen v. Workers' Compensation Com'r and Consolidation Coal Co., 314 S.E.2d 401, 173 W.Va. 238 (W. Va. 1984)
• Decision Date: 02 March 1984
• Docket Number: No. 16047,16047
• Parties: Richard P. ALLEN v. WORKERS' COMPENSATION COMMISSIONER AND CONSOLIDATION COAL CO.

Page 401

314 S.E.2d 401

173 W.Va. 238

Richard P. ALLEN v. WORKERS' COMPENSATION COMMISSIONER AND CONSOLIDATION COAL CO.

No. 16047.

Supreme Court of Appeals of West Virginia.

March 2, 1984.

Dissenting Opinion March 9, 1984.

Syllabus by the Court

1. Temporary total disability is an inability to return to substantial gainful employment requiring skills or activities comparable to those of one's previous gainful employment during the healing or recovery period after injury.

2. Due process requires that a claimant whose temporary total disability benefits are put in jeopardy by an employer's application to modify, must have notification of the application and of the factual basis therefore. The claimant is thus enabled to make an informed choice about whether to introduce evidence to the Commissioner on any aspect of the application.

3. To clarify Syllabus Point 3 of Mitchell v. State Workmen's Compensation Commissioner, W.Va. 256 S.E.2d 1 (1979), the notice and opportunity to submit additional evidence due process requirements apply to all claimants except those who have voluntarily returned to full-time employment in their former jobs.

4. "The proper remedy for reversable [sic] due process procedural defects in administrative proceedings is to remand the case to the appropriate tribunal with directions to order the administrative institution to remedy the defect." Syllabus Point 4, Clarke v. West Virginia Board of Regents, W.Va., 279 S.E.2d 169 (1981).

Riley & Broadwater, Wheeling, for appellant.

Phillips, Gardill, Hazlett & Kaiser, Wheeling, for appellee.

HARSHBARGER, Justice:

Richard P. Allen appeals from an order of the Workers' Compensation Appeal Board that granted Consolidation Coal Company's application for modification of his temporary total disability benefits. We are asked to decide whether the procedure employed by the Workers' Compensation Commissioner and Appeal Board gave Allen due process.

Allen worked in coal mines for ten years. On June 13, 1980, he hurt his back lifting a steel bar, but continued working. On June 16 when he told his supervisor about his injury, he was taken to a hospital, examined, and released that day. His claim was held compensable on a no lost time basis.

He reinjured his back on March 21, 1981 and petitioned to reopen his claim, and was granted TTD benefits from March through August 26, 1981, when his claim was cancelled for lack of medical evidence. He then went to Dr. Loar for treatment and petitioned again in March, 1982 to reopen his claim. Based on Dr. Loar's November 10, 1981 report, the Commissioner reopened his claim and by a June 23, 1982 order awarded TTD benefits from November 10, 1981 through April 26, 1982.

The employer protested, and also filed an application for modification, pursuant to W.Va.Code, 23-5-1c, ¹ that the Commissioner denied for failure to establish just cause on July 22, 1982. Claimant did not receive a copy of the application for modification nor any of the supporting documents. (Code, 23-5-1c does not provide for notice to a claimant unless the commissioner finds cause for adjustment.)

Consolidation appealed the Commissioner's denial of its application to modify TTD benefits to the Appeal Board, W.Va.Code, 23-5-1d, ² producing evidence that included a Pinkerton report to the effect that Allen had purchased a restaurant and was operating it on a full-time basis. This report had been provided to the Commissioner before her July 22 order, but had not been seen by Allen.

While this appeal was pending before the Appeal Board, a September 20, 1982 hearing was held on the employer's protest to the reopening and award of additional TTD benefits. Consolidation, for the first time, alerted Allen that it was testing his right to TTD when it cross-examined him about his business. He and his wife testified that he was in the restaurant on a daily basis, that he did ordering, wrote checks and paid bills, did bookkeeping, hiring and firing, and occasionally served a cup of coffee to a customer. He did no manual labor, leaving that to the hired waitresses and his wife. He and his wife did not consider what he did "really working". The Pinkerton report was not produced or introduced.

But it and the September 20 hearing record were before the Appeal Board when it decided whether to reverse the Commissioner and permit the employer's application for modification. The Board was "of the opinion that the Pinkerton report filed in support of the employer's application for modification established a just cause for modification. The claimant did not offer any evidence to rebut the employer's contention that he was employed."

The Pinkerton report was an ex parte document filed by the employer and Allen argues it should not have been considered by the Board, it was hearsay, and he was never shown the report and did not have an opportunity to rebut it; and that the testimony from the protest hearing should not have been considered by the Board on the modification appeal, and that the procedure set out in Mitchell v. State Workmen's Compensation Commissioner, 107, W.Va. 163, 256 S.E.2d 1 (1979), was not followed.

It is true that the report and other documents supporting the employer's claim were hearsay, but that does not make them inadmissible. The Commissioner and the Appeal Board are not bound by the usual common-law rules of evidence. W.Va. Code, 23-1-15; Vento v. State Compensation Commissioner, 130 W.Va. 577, 44 S.E.2d 626, 630 (1947).

But Allen was not given notice or a chance to submit his own relevant evidence. The quandry created by these facts is that a worker against whom an application to modify TTD benefits has been filed with the Commissioner and who is not noticed of the application because the Commissioner finds no cause for modification, whereupon the employer appeals, may find himself before the Appeal Board defending the Commissioner's "no cause" decision, without having had an opportunity to test the employer's facts in a hearing.

In Mitchell, supra, we set out minimum due process standards for modification applications per Code, 23-5-1c:

W.Va.Code, 23-5-1c, permits an employer, upon an application containing credible evidence, to request the Commissioner to terminate temporary total disability benefits. Under this section, evidentiary hearings are not required to be held by the Commissioner until an order terminating the benefits is entered and timely objection to the order has been made. However, procedural due process standards mandate that the Commissioner give the claimant advance notification of the reasons why his temporary total disability benefits are being considered for termination and a reasonable opportunity to supply relevant information on the issue, except where the claimant has voluntarily returned to work. (Emphasis supplied.) Syllabus Point 3, Mitchell v. State Workmen's Compensation Commissioner, supra.

Butcher v. State Workers' Compensation Commissioner, 315 S.E.2d 563 at p. 569 1983. further explained Mitchell: "There is no right initially to an evidentiary hearing, but the Commissioner decides, based upon the information supplied by the parties and that contained in the file or through an independent medical examination, whether the temporary total disability benefits should be terminated." We have also explained that "where such information does not originate from the claimant or his physician, before the benefit may be terminated, reasonable notice must be given to the claimant of the proposed termination so that he may supply relevant information to show that the temporary total disability benefits are warranted." Butcher, supra at p. 568.

Butcher did not create any new rules: it simply explained Mitchell. Allen's due process rights were denied when he was not notified about the modification application and its supporting documents.

Consolidation Coal finally argues that Mitchell's requirements were met, but even if this Court finds they were not, we should affirm the Appeal Board because Mitchell does not apply to this case. The final sentence in Syllabus Point 3 of Mitchell, supra, states that the procedural requirements must be met "except where the claimant has voluntarily returned to work." The company's position is that Allen voluntarily returned to work when he purchased and began helping operate his restaurant.

The employer has misread Mitchell's meaning. It has taken the "return to work" language of Syllabus Point 3 literally, and out of context. We explained in Mitchell, supra 256 S.E.2d, at 6, that temporary total disability is not defined in our statute, but it consists of the "healing" or "recovery" period. ³ Accord, e.g., Don Ward and Company v. Henry, Colo.App., 502 P.2d 429 (1972); Syllabus Point 1, Crabtree v. Beech Aircraft Corp., 229 Kan. 440, 625 P.2d 453 (1981); Dodier v. State Department of Labor, 117 N.H. 315, 373 A.2d 341 (1977). We wrote in Syllabus Point 1 of Mitchell that two events trigger the termination of temporary total disability benefits: achieving a maximum degree of improvement or becoming medically certified to return to work. We recognized that those two events usually coincide in time, but there are times when a worker might never be certified to return to work, although he has reached his maximum level of improvement. There also may be cases wherein claimants prematurely return to work, before the healing process is complete, and are compelled to stop working again because of their physical condition. Syllabus Point 1, Dunlap v. State Workmen's Compensation Commissioner, 160 W.Va. 58, 232 S.E.2d 343 (1977).

In Dunlap, we decided that TTD should not be terminated until the healing process is complete. But, as we said, in the usual and most common case termination will be predicated on either medical certification to return to work or medical certification that a claimant has reached his maximum degree of improvement. See Fakourey v. Workmen's...