Boggs v. SWCC

• Decision Date: 13 July 1979
• Docket Number: No. 14419,14419
• Court: West Virginia Supreme Court
• Parties: Marlin M. BOGGS v. SWCC and Ranger Fuel Corp.

Page 890

256 S.E.2d 890

163 W.Va. 413

Marlin M. BOGGS v. SWCC and Ranger Fuel Corp.

No. 14419.

Supreme Court of Appeals of West Virginia.

July 13, 1979.

Syllabus by the Court

1. "In order to obtain workmen's compensation benefits for total disability resulting from a second injury coupled with a noncompensable definitely ascertainable physical impairment, such physical impairment must have been caused from an injury and not a disease unless such physical impairment was an occupational disease proved to have been proximately caused by employment. Code, 23-3-1, 23-4-1, 23-4-9b." Syl. pt. 2, Bannister v. State Workmen's Compensation Commissioner, 154 W.Va. 172, 174 S.E.2d 605 (1970).

2. Once a reopening has been granted under W.Va.Code, 23-5-1a (1939), any party has the right to contest the modification and to develop fully any issues regarding a progression or aggravation of claimant's condition or to develop any other facts which were not previously considered by the Commissioner in his original findings.

Atkins & Ross and Edward G. Atkins, Charleston, for appellant.

NEELY, Justice:

This is an appeal from an order entered by the Workmen's Compensation Appeal Board which affirmed the Commissioner's order denying appellant's motion for permanent total disability. This case presents two questions requiring interpretation of the Workmen's Compensation Act: first, whether an artificially induced, collapsed lung constitutes a previous injury as defined in the second injury statute, W.Va.Code, 23-3-1 (1947) and 23-4-9b (1971), and second, whether all issues not previously decided can be raised upon a reopening of a claim under W.Va.Code, 23-5-1 (1973), 23-5-1a (1939), and 23-5-1b (1939). The Appeal Board incorrectly concluded that upon a reopening only aggravation and progression can be considered but we do not remand this case for rehearing because only one tenable claim concerning the combined effects of an artificially collapsed lung and pneumoconiosis was raised below and our decision on this issue disposes of all other claims suggested on the record.

In 1974 claimant, Marlin M. Boggs, was granted a 50% Permanent partial disability for occupational pneumoconiosis. Shortly after that award claimant requested a reopening for progression or aggravation under Code, 23-5-1 (1973) to consider the combined effects of a prior disability together with his occupational pneumoconiosis. In 1949 when claimant had tuberculosis, he had received medical treatment which included a purposely induced, collapsed lung (pneumothorax), an accepted form of therapy at that time. It is uncontested that the combination of the residual effects of the pneumothorax and the occupational pneumoconiosis render claimant totally disabled. During the earlier proceedings which resulted in an award of 50% Disability, a pneumothorax was mentioned but its relation to the occupational pneumoconiosis was not discussed. It is that oversight which claimant sought to raise in the subsequent reopening under consideration in the case before us.

When the two disabilities were finally considered together by the Workmen's Compensation Appeal Board the Board decided that since the claimant had requested a reopening for aggravation or progression, discussion should be confined solely to that issue. In this regard the Appeal Board erred, but even if everything which claimant offered to prove or reasonably could have proven were taken as proven, claimant, as a matter of law, alleged no grounds involving his pneumothorax upon which an award could have been granted. The Occupational Pneumoconiosis Medical Board admitted that during the earlier proceedings which had resulted in a 50% Permanent award an etiology concerning the collapsed lung had not been obtained; however, upon this reopening the Medical Board determined that the treatment for tuberculosis was indeed a traumatic event which caused residual effects resulting in total disability. The Appeal Board, however, affirmed the Commissioner and denied a permanent total disability award.

I

The first issue to be considered is whether accepted medical treatment constitutes an injury. Mr. Boggs sought a reopening in the belief that his pneumothorax was a previous injury which made him eligible for a " second injury" award. Claimant ingeniously argues that since the pneumothorax was a traumatic event with resulting residual effects, he qualifies for a second injury award because he has "a definitely ascertainable physical impairment," under W.Va.Code, 23-4-9b (1971). It is certainly true that claimant has a "definitely ascertainable physical impairment" under W.Va.Code, 23-4-9b (1971); however, that provision must be read In pari materia with the provision that the impairment be "caused by a previous injury" under W.Va.Code, 23-3-1 (1947). This Court has consistently held that "such physical impairment must have been caused from an injury and not a disease unless such physical impairment was an occupational disease proved to have been proximately caused by . . . employment." Bannister v. State Workmen's Compensation Commissioner, 154 W.Va. 172, 176, 174 S.E.2d 605, 607-08 (1970). See Huff v. State Workmen's Compensation Commissioner, W.Va., 202 S.E.2d 383 (1974).

In certain jurisdictions it is unclear precisely what type of pre-existing Injury qualifies a claimant for relief from the second injury reserve, 2 Larson, Workmen's Compensation Law, 59.32 (1976), but there is no comparable confusion in West Virginia. This Court has always required proof of injury "by accident," Jordan v. State Workmen's Compensation Commissioner, 156 W.Va. 159, 191 S.E.2d 497, 500 (1972). The requirements for a non-compensable, qualifying injury do not differ from those of a compensable injury, namely that the previous injury be attributed to "a definite, isolated, fortuitous occurrence." Adams v. G. C. Murphy Co., 115 W.Va. 122, 126, 174 S.E. 794, 795 (1934). Claimant suggests that this Court no longer adheres to the "by accident" requirement since the employee in Pennington v. State Workmen's Compensation Commissioner, W.Va., 222 S.E.2d 579 (1976), received an award when he suffered severe back pain while shoveling coal, one of his every day duties. However, Pennington, which was a close case anyway, may be distinguished from the case Sub judice on the ground that in Pennington the employee did not deliberately strain his back, while the pneumothorax sustained by this claimant was an intentionally induced disability incurred in the treatment of an ordinary disease of life, i. e., tuberculosis.

Within the overall statutory scheme of Workmen's Compensation it is not contemplated that a traumatic event which causes a definitely ascertainable physical impairment should be considered outside of the context in which it arose. The pneumothorax was a direct product of tuberculosis; but for the disease there would not be a collapsed lung. Claimant does not argue that he should be compensated for his disease, and we are unable to agree with the claimant's reasoning which separates the disease from the undesirable effects of treatment for the disease. It would be absurd, for example, to compensate a workman who had previously had heart surgery and to deny those same benefits to a workman who merely had a history of heart disease. While this Court recognizes that the pneumothorax and not the tuberculosis caused the disability in the case before us, we find the treatment and the disease to be inextricably intertwined.

Since it is obviously the intent of the Legislature to encourage, or at least not discourage, the hiring of the handicapped, McClanahan v. Workmen's Compensation Commissioner, W.Va., 207 S.E.2d 184, 186 (1974), we might question if we were the Legislature whether it is not inequitable to discriminate between the diseased...