Bevins v. West Va. Office of The Ins. Comm'r

• Decision Date: 14 October 2010
• Docket Number: 35219.,Nos. 35548,s. 35548
• Citation: 227 W.Va. 315,708 S.E.2d 509
• Court: West Virginia Supreme Court
• Parties: Charles W. BEVINS, Appellant,v.WEST VIRGINIA OFFICE OF the INSURANCE COMMISSIONER and Mountain Energy, LLC, Appellees.Marty L. Greathouse, Appellant,v.West Virginia Office of the Insurance Commissioner and the Wackenhut Corporation, Appellees.

227 W.Va. 315

708 S.E.2d 509

Charles W. BEVINS, Appellant,

v.WEST VIRGINIA OFFICE OF the INSURANCE COMMISSIONER and Mountain Energy, LLC, Appellees.Marty L. Greathouse, Appellant,

v.West Virginia Office of the Insurance Commissioner and the Wackenhut Corporation, Appellees.

Nos. 35548

35219.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 22, 2010.Decided Oct. 14, 2010.

Syllabus by the Court

1. “When it appears from the proof upon which the Workmen's Compensation [Board of Review] acted that its finding was plainly wrong an order reflecting that finding will be reversed and set aside by this Court.” Syllabus point 5, Bragg v. State Workmen's Compensation Commissioner, 152 W.Va. 706, 166 S.E.2d 162 (1969).

2. “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.” Syllabus point 1, Allen v. Workers' Compensation Commissioner, 173 W.Va. 238, 314 S.E.2d 401 (1984).

3. “If a worker's compensation claimant shows that he received an initial injury which arose out of and in the course of his employment, then every normal consequence that flows from the injury likewise arises out of the employment. If, however, a subsequent aggravation of the initial injury arises from an independent intervening cause not attributable to the claimant's customary activity in light of his condition, then such aggravation is not compensable.” Syllabus point 4, Wilson v. Workers' Compensation Commissioner, 174 W.Va. 611, 328 S.E.2d 485 (1984).

4. “For purposes of obtaining a reopening of a Workmen's Compensation claim under the provisions of W. Va.Code § 23–5–1a [now W. Va.Code § 23–5–2 (2005) (Repl.Vol.2010) ] and—1b [now W. Va.Code § 23–5–3 (2009) (Repl.Vol.2010) ], the claimant must show a prima facie cause, which means nothing more than any evidence which would tend to justify, but not to compel the inference that there has been a progression or aggravation of the former injury.” Syllabus, Harper v. State Workmen's Compensation Commissioner, 160 W.Va. 364, 234 S.E.2d 779 (1977).

5. “Where a claimant's temporary total disability payments have been terminated and he desires to have them reinstated under W. Va.Code § 23–5–1a [now W. Va.Code § 23–5–2 (2005) (Repl.Vol.2010) ] and –1b [now W. Va.Code § 23–5–3 (2009) (Repl.Vol.2010) ], such reinstatement must be based upon new facts showing an aggravation or progression of the injury or other facts not thereto considered.” Syllabus point 2, Wilson v. Workers' Compensation Commissioner, 174 W.Va. 611, 328 S.E.2d 485 (1984).

6. “If the language of an enactment is clear and within the constitutional authority of the lawmaking body which passed it, courts must read the relevant law according to its unvarnished meaning, without any judicial embroidery.” Syllabus point 3, in part, West Virginia Health Care Cost Review Authority v. Boone Memorial Hospital, 196 W.Va. 326, 472 S.E.2d 411 (1996).

7. A claimant simultaneously may receive temporary total disability workers' compensation benefits while also receiving Social Security disability benefits for the same compensable injury. However, before a claimant may be awarded such temporary total disability workers' compensation benefits, he/she must be eligible to receive such an award based upon a progression or aggravation of his/her compensable injury or other medical evidence indicating such an award would be warranted as contemplated by W. Va.Code § 23–4–1c(b–c) (2009) (Repl.Vol.2010), W. Va.Code § 23–4–1c(e) (2009) (Repl.Vol.2010), and W. Va.Code § 23–4–16(b) (2005) (Repl.Vol.2010).

8. When a claimant simultaneously receives temporary total disability workers' compensation benefits while also receiving Social Security disability benefits for the same compensable injury, the federal offset provisions set forth in 42 U.S.C. § 424a (1994) (2006 ed.) operate to preclude the claimant from receiving an impermissible double recovery of benefits.

William B. Gerwig, III, Charleston, WV, for Appellant, Charles W. Bevins.Anna L. Faulkner, Workers' Compensation Defense Division, Charleston, WV, for Appellee, West Virginia Insurance Commissioner.G. Patrick Jacobs, The Law Office of G. Patrick Jacobs, L.C., Charleston, WV, for Appellant, Marty L. Greathouse.Jack M. Rife, Workers' Compensation Litigation Division, Charleston, WV, for Appellee, West Virginia Insurance Commissioner.

DAVIS, Chief Justice:

The instant proceeding consists of two consolidated appeals, both of which present the same issue for this Court's resolution: is an injured worker entitled to receive temporary total disability workers' compensation benefits (hereinafter referred to as “TTD benefits”) ¹ while he/she also is receiving Social Security disability benefits ² in connection with the same compensable injury? In both of the claimants' claims, the Workers' Compensation Board of Review (hereinafter referred to as “Board of Review”) ruled that their receipt of Social Security disability benefits precluded them from also receiving TTD benefits. On appeal to this Court,³ both claimants contend that the Workers' Compensation Board of Review has improperly interpreted W. Va.C.S.R. § 85–1–5.2 (2009) ⁴ in denying their requests for TTD benefits. Upon a review of the parties' arguments, the records presented for appellate consideration, and the governing authorities, we reverse the rulings rendered by the Workers' Compensation Board of Review. Specifically, in Case Number 35548 regarding Mr. Bevins, we reverse the Board of Review's June 4, 2009, order and remand for entry of an order awarding Mr. Bevins TTD benefits in connection with his November 27, 2007, surgery related to his compensable injury. Additionally, in Case Number 35219 pertaining to Mr. Greathouse, we reverse the Board of Review's March 5, 2008, order and remand for further factual development to determine whether Mr. Greathouse is eligible to receive the TTD benefits he has requested.

I.FACTUAL AND PROCEDURAL HISTORY

Although both of the appeals in this case present the same legal issue, we separately will consider the facts giving rise to each claimant's request for TTD benefits.

A. Case Number 35548—Charles Bevins

On May 30, 2000, Charles W. Bevins (hereinafter referred to as “Mr. Bevins”), a coal miner, injured his back in the course of and as a result of his employment when he attempted to move a loaded wheelbarrow. While treating his back injury, Mr. Bevins' physician discovered that Mr. Bevins also had sustained an injury to his ankle, causing his foot to drop. For this condition, Mr. Bevins underwent two surgeries, the most recent of which was on November 27, 2007. On December 10, 2007, Mr. Bevins filed an application to reopen his workers' compensation claim for the purpose of receiving TTD benefits. On his reopening application, Mr. Bevins did not indicate that he had retired; rather, he left both the “yes” and the “no” boxes next to the retirement question blank. However, Mr. Bevins did state on his application that “I'm receiving Social Security Disability Insurance[;] I no longer work due to this injury.” By this application, Mr. Bevins sought TTD benefits for the period from November 27, 2007, to February 27, 2008. At the time he submitted this application, Mr. Bevins was fifty-one years old.

By decision dated March 10, 2008, the Workers' Compensation Claims Manager (hereinafter referred to as “Claims Manager”) ruled that Mr. Bevins' claim could not be reopened, explaining:

This claim cannot be reopened because:

Title 85–1–5.2 states, “ If an individual retires, he or she is disqualified from receiving temporary total disability indemnity benefits as a result of an injury received from the place of employment.”

Title 85–1–5.3 states, “ If a period of disability includes a reasonably ascertainable period of time during which the injured worker would not have been compensated from his or her employer, then temporary total disability indemnity benefits shall not be paid during that period.”

Thus, the Claims Manager determined that Mr. Bevins was not entitled to receive TTD benefits.

Mr. Bevins appealed this determination. By decision dated October 27, 2008, the Workers' Compensation Office of Judges (hereinafter referred to as “OOJ”) awarded Mr. Bevins TTD benefits, thus reversing the earlier determination. In summary, the OOJ stated that “[t]he claimant [Mr. Bevins] is not disqualified from temporary total disability benefits due to the sole reason that he is receiving Social Security Disability benefits.” This ruling was based upon the OOJ's observations that Mr. Bevins is “52 years old” and that “[t]he preponderance of the evidence shows that the claimant has not retired.” Therefore, the OOJ awarded Mr. Bevins the TTD benefits he had requested.

Thereafter, the Commissioner appealed the OOJ's decision to the Board of Review. By order entered June 4, 2009, the Board of Review reversed the OOJ's decision, thus denying Mr. Bevins' application for TTD benefits. In this regard, the Board of Review determined that TTD benefits serve as a wage replacement. Thus, because Mr. Bevins is receiving Social Security disability benefits and “has not returned to work since the May 30, 2000[,] injury in this claim,” Mr. Bevins “has no wages to replace and is, therefore, not entitled to reopening on a temporary total disability basis or temporary total disability benefits[.]” From this adverse ruling, Mr. Bevins appeals to this Court.

B. Case Number 35219–Marty Greathouse

On December 17, 2003, Marty L. Greathouse (hereinafter referred to as “Mr. Greathouse”), a security guard, injured his arm, neck, and shoulder in the course of and as a result of his employment when a fellow employee pushed him into some office equipment. Mr. Greathouse received treatment for his injuries and ultimately received a six percent permanent partial...