Bounds v. State Workmen's Compensation Com'r

• Citation: 172 S.E.2d 379,153 W.Va. 670
• Decision Date: 17 February 1970
• Docket Number: No. 12885,12885
• Court: Supreme Court of West Virginia
• Parties: James BOUNDS v. STATE WORKMEN'S COMPENSATION COMMISSIONER, and Riverton Coal Company.

Page 379

172 S.E.2d 379

153 W.Va. 670

James BOUNDS v. STATE WORKMEN'S COMPENSATION COMMISSIONER, and Riverton Coal Company.

No. 12885.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 28, 1970.

Decided Feb. 17, 1970.

Syllabus by the Court

1. The right to workmen's compensation benefits is created wholly by statute. Under the workmen's compensation statutes of this state, a claimant has a right to receive benefits and the workmen's compensation commissioner may pay benefits to a claimant only as authorized by statute.

2. 'Where the language of a statute is plain and unambiguous, there is no basis for application of rules of statutory construction; but courts must apply the statute according to the legislative intent plainly expressed therein.' Point 1 Syllabus, Dunlap v. State Compensation Director, 149 W.Va. 266, (140 S.E.2d 448.)

3. 'The word 'shall', in the absence of language in the statute showing a contrary intent on the part of the legislature, should be afforded a mandatory connotation.' Point 2 Syllabus, Terry v. Sencindiver, W.Va. (171 S.E.2d 480) (decided December 16, 1969).

4. Under the provisions of Subdivision (i), Section 6, Article 4 of Chapter 23, Code, 1931, as amended, prior to an amendment thereof by the legislature in 1969, in a case in which the claimant, as a consequence of a compensable injury to a finger, received a 'statutory award' of 4% For partial loss of the finger by surgical severance and an additional award of 2% For other disability resulting from the same injury, the claimant previously having been paid temporary total benefits for the injury in excess of the 2% Award, the state workmen's compensation commissioner had a mandatory, nondiscretionary duty to treat the 2% Portion of the award as having been paid by the temporary total benefits previously paid to the claimant and a like mandatory, nondiscretionary duty to treat the 4% Portion of the award as not having been paid to the claimant by temporary total benefits previously paid to him.

5. '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, Hosey v. Workmen's Compensation Commission, 151 W.Va. 172, (151 S.E.2d 729).

Toney E. Cline, Charleston, for appellant.

Spilman, Thomas, Battle & Klostermeyer, W. Victor Ross, Charleston, for appellees.

CALHOUN, Judge.

This workmen's compensation case is before the Court on appeal by James Bounds, the claimant, from an order entered on September 10, 1969, by the Workmen's Compensation Appeal Board which affirmed an order entered on June 6, 1969, by the State Workmen's Compensation Commissioner by which the commissioner made a 6% Award of permanent partial disability benefits to the claimant for an injury received by him on October 4, 1965, during the course of and as a result of his employment by the Riverton Coal Company.

The injury received by the claimant consisted of a comminuted fracture of a portion of the distal phalanx and a comminuted fracture of a portion of the middle phalanx of the little or fourth finger of the right hand. The injury also caused a traumatic severance of a portion of the distal phalanx of the same finger. The treating physician reduced the fractures and restored the severed portion of the finger by means of sutures. The finger later became infected, as a consequence of which the claimant was admitted to Charleston General Hospital on October 21, 1965, for treatment. He was discharged from the hospital on November 1, 1965.

Upon subsequent medical examination of the injured finger, it was determined that surgical amputation was necessary and consequently on December 13, 1965, the finger was surgically amputated at a point within the middle phalanx. The claimant returned to work on January 24, 1966, after having received payment of temporary total disability benefits for a period of sixteen weeks commencing on the date of the injury.

On June 13, 1966, the commissioner made a 5% Award to the claimant for the amputation. That award was protested by the employer on the ground that 4% Constituted a correct statutory award for the amputation. The claimant also protested the 5% Award on the ground that it did not adequately compensate the claimant for the injury.

On July 1, 1966, the commissioner entered an order by which he set aside the 5% Award and made an award of 4% Permanent partial disability benefits for the amputation. The record does not disclose that the 4% Award was protested either by the claimant or by the employer. A letter to the commissioner dated August 20, 1966, written by the attorney then representing the claimant, stated that the claimant thereby withdrew his protest to the order of the commissioner which made an award of 5% And his subsequent corrective order making an award of 4%, and requested that the attorney's letter be considered 'as the above claimant's petition for a permanent partial disability evaluation for injuries over and above the amputation.' Following the receipt of this letter, the commissioner, on August 25, 1966, paid the claimant the 4% Award, being $42 a week for sixteen weeks, totaling $672, without deducting therefrom any sum for temporary total benefits previously paid to the claimant.

It was apparently agreed among the commissioner and counsel for the respective parties that the 4% Award of permanent partial disability benefits was a proper 'statutory award' under the provisions of Subsection (d) of Code, 1931, 23--4--6, as amended. This agreement has been further evidenced by the briefs and oral argument of counsel on the appeal of the case to this Court. The correctness of the payment of the 4% Award of benefits is not questioned or contested either by the employer or by the claimant.

By a letter dated October 17, 1966, the commissioner advised the claimant that it had been determined that the claimant had suffered a 6% Permanent partial disability as a result of his injury sustained on October 4, 1965. The letter contained the following additional language:

'This award is broken down into 4% For the Statutory loss and 2% For the disability over and above the amount allowed by the Statute.

'Our records reveal that you have been paid 16 weeks on a temporary total disability basis; and therefore, since we are required under Chapter 23, Article 4, Section 6, Sub-section(i) to deduct temporary total disability benefits from that portion of your permanent disability award which exceeds the Statutory Award, there will be no further payments under the 2% Award, since the amount paid on a temporary disability basis exceeds the amount payable under that portion of your award.'

It is not clear from the record whether the disability forming the basis of the 2% Award resulted from the initial traumatic injury, or from the surgical amputation, or from a combination of both.

On June 6, 1969, after a hearing duly held, the commissioner entered an order affirming his ruling dated October 17, 1966, which was in turn affirmed by the appeal board by its order of September 10, 1969, from which appeal board order the case has been appealed to this Court.

It is the contention of the claimant that inasmuch as the present case involves a loss by severance of a portion of the claimant's finger, consequently resulting in an award of benefits on a percentage basis which is expressly fixed by the statute, the commissioner was not warranted in deducting the 2% Portion of the award on the basis of the temporary total benefits previously paid. On the other hand, it is contended in behalf of the employer that the commissioner properly paid the claimant the full amount of the 4% 'statutory award', but that the commissioner properly held that he was not authorized by the pertinent statute to pay the claimant any sum for the 2% Portion of the award for the reason that the claimant previously had been paid temporary total benefits in excess of the amount which would...