Bias v. Workers' Compensation Com'r

• Court: West Virginia Supreme Court
• Citation: Bias v. Workers' Compensation Com'r, 345 S.E.2d 23, 176 W.Va. 421 (W. Va. 1986)
• Decision Date: 04 June 1986
• Docket Number: No. 16880,16880
• Parties: Jackie L. BIAS v. WORKERS' COMPENSATION COMMISSIONER and Big Mountain Coals, Inc.

Page 23

345 S.E.2d 23

176 W.Va. 421

Jackie L. BIAS v. WORKERS' COMPENSATION COMMISSIONER and Big Mountain Coals, Inc.

No. 16880.

Supreme Court of Appeals of West Virginia.

June 4, 1986.

Syllabus by the Court

1. " 'This Court will not reverse a finding of fact made by the Workmen's Compensation Appeal Board unless it appears from the proof upon which the appeal board acted that the finding is plainly wrong.' Syllabus, Dunlap v. Workmen's Compensation Commissioner, 152 W.Va. 359 [163 S.E.2d 605 (1968) ]." Syllabus Point 2, Jordan v. State Workmen's Compensation Commissioner, 156 W.Va. 159, 191 S.E.2d 497 (1972).

2. " 'Evidence should be construed liberally in favor of a claimant for workmen's compensation.' Syllabus, Fulk v. State Compensation Commissioner, 112 W.Va. 555 [166 S.E. 5 (1932) ]." Syllabus Point 2, Johnson v. State Workmen's Compensation Commissioner, 155 W.Va. 624, 186 S.E.2d 771 (1972); Syllabus Point 1, Ward v. State Workmen's Compensation Commissioner, 154 W.Va. 454, 176 S.E.2d 592 (1970).

3. " 'Where, in the course of and arising out of his employment, an employee in good health and of strong physique, suffers physical injury, which is followed by serious disabilities, competent physicians differing as to whether the disabilities are attributable to the injury, but only probable or conjectural reasons or causes are assigned by physicians in an effort to explain the disabilities on grounds other than the injury, the presumptions should be resolved in favor of the employee rather than against him.' Point 1, Syllabus, Pripich v. State Workmen's Compensation Commissioner, 112 W.Va. 540, 166 S.E. 4 (1932)." Syllabus Point 1, Lanier v. State Workmen's Compensation Commissioner, 160 W.Va. 758, 238 S.E.2d 687 (1977).

4. " 'An order of the Workmen's Compensation Appeal Board will be reversed by this Court on appeal where it is not supported by the evidence or where the legal conclusions of the board are erroneous.' Point 5, Syllabus, Clark v. State Workmen's Compensation Commissioner, 155 W.Va. 726, 187 S.E.2d 213 (1972)." Syllabus Point 2, Hamrick v. State Workmen's Compensation Commissioner, 159 W.Va. 840, 228 S.E.2d 702 (1976).

5. Where the Workers' Compensation Commissioner denies an employer's application, pursuant to W.Va.Code § 23-5-1c (1985 Replacement Vol.), for modification of a claimant's temporary total disability benefits on the ground that such application fails to establish just cause for modification, the employer must elect whether to proceed to evidentiary hearings pursuant to this Court's decision in Mitchell v. State Workmen's Compensation Commissioner, 163 W.Va. 107, 256 S.E.2d 1 (1979), or to appeal the Commissioner's ruling directly to the Workers' Compensation Appeal Board pursuant to W.Va.Code § 23-5-1d (1985 Replacement Vol.).

Timothy G. Leach, Charleston, for appellant.

Shaffer & Shaffer, Madison, George D. Blizzard, III, for appellees.

McGRAW Justice:

This is an appeal by the claimant from an order of the Workers' Compensation Appeal Board, dated June 26, 1985, which reversed a ruling of the Workers' Compensation Commissioner denying the employer's application for modification of the claimant's temporary total disability benefits. The claimant asserts that the Appeal Board erred in concluding that his disability was not causally related to his occupational injury. We agree, and we reverse the decision of the Appeal Board.

The claimant was a thirty-year-old coal miner employed by Big Mountain Coals, Inc., when he slipped and fell at work on May 4, 1982, twisting his knee and striking his forehead. The claimant was treated by Dr. Tony C. Majestro, who performed surgery to correct a torn medial meniscus of the claimant's left knee. The claimant subsequently began complaining of low back pain, which Dr. Majestro concluded was the result of a preexisting condition, Grade I spondylolisthesis, which was aggravated by the claimant's occupational injury.

The claimant filed two applications for workers' compensation benefits, one describing injuries to his head, back and neck and the other describing the injury to his knee. The claim was ruled compensable, and the claimant was awarded temporary total disability benefits by order of the Commissioner dated May 26, 1982. The employer did not protest this ruling.

The claimant continued to receive temporary total disability benefits for several months. He returned to work on November 1, 1982, but was laid off the following day. By order dated January 5, 1983, the Commissioner closed the claim on a temporary total disability basis.

In January, 1983, the claimant filed a motion to reopen his temporary total disability claim on the basis of Dr. Majestro's report that, due to exacerbation of his condition, the claimant was unable to work. By order dated January 27, 1983, the Commissioner granted the motion for reopening, and the employer protested.

On April 21, 1983, while the protest to the reopening was pending, the employer filed an application for modification of the claimant's temporary total disability benefits pursuant to W.Va.Code § 23-5-1c (1985 Replacement Vol.) on the ground that the claimant had reached maximum improvement with respect to his knee injury and had suffered no compensable back injury. The Commissioner notified the claimant of the application for modification and advised him that she was considering closing the claim unless the claimant submitted evidence supporting continuation of temporary total disability benefits within thirty days.

In response, the claimant submitted a medical report from Dr. Majestro which indicated that the claimant was having increased discomfort in his back and left leg. Dr. Majestro's report also indicated that on April 29, 1983 the claimant had complained of pain, weakness and numbness in his neck and right arm, symptoms which the claimant reported as having first appeared approximately three months after the occupational injury. Dr. Majestro concluded that the claimant was probably suffering from a herniated cervical disc and recommended that he be hospitalized for a lumbar myelogram and neurological consultation and evaluation of his low back and cervical spine.

On the basis of Dr. Majestro's report, the Commissioner, by order entered June 22, 1983, denied the employer's application for modification. The employer apparently did not protest this ruling. By letter dated August 4, 1983, however, the employer did object to the Commissioner's authorization and payment of medical treatment for the claimant's back and neck problems on the ground that there was no evidence that they were causally related to his compensable injury. By letter dated August 19, 1983, the Commissioner informed Dr. Majestro that the claim was being reviewed at the employer's request and requested information relating the claimant's medical treatment to his occupational injury.

In reply, Dr. Majestro submitted a report, dated September 2, 1983, in which he reiterated his opinion that the claimant's low back condition was the result of a preexisting condition which had been aggravated by his occupational injury. Dr. Majestro also indicated a possible relationship between the claimant's cervical spine condition and the head injury he sustained at work, but stated that he was uncertain of the causal connection due to the claimant's delay in reporting his symptoms. Dr. Majestro advised the Commissioner that the claimant had been referred for treatment to Dr. Robert J. Clubb, a neurosurgeon who had performed surgery to remove a herniated cervical disc, and referred the Commissioner to Dr. Clubb for an opinion as to the compensability of that condition.

On November 15, 1983, a hearing was conducted upon the employer's protest to the reopening of the claimant's temporary total disability claim. In describing his occupational injury, the claimant testified that he had struck his head with such force that the plastic safety hat he was wearing had cracked. The claimant further testified that he had begun experiencing pain in his neck and arm one or two months after his occupational injury and that he had reported the symptoms to Dr. Majestro at that time, but was told that they were probably caused by the way he was sleeping.

Dr. Majestro testified to the matters contained in his report of September 2, 1983. He further testified that although the claimant's knee and back conditions had reached maximum improvement in September 1983, the claimant had not yet been released to return to work due to his cervical spine condition. Dr. Majestro again declined to offer an opinion as to the compensability of this condition. After the hearing, Dr. Clubb submitted a letter in which he related to the Commissioner his treatment of the claimant's neck problems and expressed his opinion that the claimant's cervical spine condition was related to and the result of his occupational injury.

On the basis of the evidence adduced at the protest hearing, particularly Dr. Majestro's testimony, the employer filed a second application for modification of the claimant's temporary total disability benefits. On January 5, 1984, the Commissioner issued an order ruling that the employer's application failed to establish just cause for modification of the claim.

The employer appealed this ruling to the Appeal Board, which, in its order dated June 26, 1985, found that the claimant had reached his maximum degree of improvement in regard to his back and knee conditions and that his cervical spine disability was not causally related to his occupational injury. Accordingly, the Appeal Board reversed the Commissioner's ruling and ordered the case remanded with directions to grant the employer's application for modification and to adjust the claimant's temporary total disability benefits as indicated by the evidence.

The principal issue raised by the claimant in this appeal concerns the Appeal Board's ruling on the compensability of...