Bergmann v. L & W Drywall, 801267
| Decision Date | 12 June 1981 |
| Docket Number | No. 801267,801267 |
| Court | Virginia Supreme Court |
| Parties | Dave G. BERGMANN v. L & W DRYWALL and Selected Risks Insurance Company. Record |
John H. Klein, Norfolk (Breit, Rutter & Montagna, Norfolk, on briefs), for appellant.
Robert G. Winters, Norfolk (White, Reynolds, Smith & Winters, Norfolk, on brief), for appellees.
Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ.
Dave G. Bergmann (claimant) appeals from the July 14, 1980 decision of the Industrial Commission which dismissed his claim for compensation benefits under the Virginia Workmen's Compensation Act.
Bergmann was injured on October 21, 1978, while in the employ of L & W Drywall (employer). As Bergmann stepped down from a workbench, he suffered a lumbosacral strain to his back. This disability prevented Bergmann from performing the heavy physical labor required of a dry wall hanger. Following this injury, Bergmann was afflicted with a non-occupational neurological disorder diagnosed as a probable mild atypical post infectious neuritis.
On March 12, 1979, the Commission entered an award approving a memorandum agreement between claimant, the employer, and its carrier, Selected Risks Insurance Company. This award provided for payment of compensation at the rate of $187.00 per week, beginning October 27, 1978, and continuing for the duration of claimant's incapacity.
On May 18, 1979, the employer applied for a hearing before the Commission, alleging that the claimant could not be located. This hearing was conducted in the absence of the claimant on July 25, 1979. One of the commissioners suspended compensation, effective April 15, 1979.
Subsequently, the claimant applied for reinstatement of the weekly compensation. A hearing was held before a deputy commissioner, and on January 30, 1980, he reinstated benefits effective November 6, 1979.
The carrier sought review of the January opinion, and the case was heard by the full Commission. In its opinion of April 15, 1980, the Commission vacated the award of January 30, 1980, and remanded the case to the hearing docket for additional medical evidence regarding the claimant's work capacity.
The additional medical evidence consisted of a report by claimant's neurologist dated June 18, 1980, and a report dated May 30, 1980, by an orthopedist selected by the carrier to examine the claimant. The neurologist reported that the claimant suffered from a neurological disability caused by both his injury and the non-job-related illness. The orthopedist concluded that the claimant did not have an orthopedic disability.
In an opinion dated July 14, 1980, the Commission dismissed Bergmann's claim and denied further benefits, stating that "where the claimant's disability is related to two causes, one of which is compensable and the other of which is not, the compensation may not be awarded." As support for this rule, the Commission cited Southall, Adm'r. v. Reams, Inc., 198 Va. 545, 95 S.E.2d 145 (1956), and Virginia Electric and Power Co. v. Quann, 197 Va. 9, 87 S.E.2d 624 (1955).
The Commission, in deciding this case, confused two rules of...
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