Butcher v. State Workers' Compensation Com'r

• Court: West Virginia Supreme Court
• Writing for the Court: MILLER; NEELY
• Citation: Butcher v. State Workers' Compensation Com'r, 315 S.E.2d 563, 173 W.Va. 306 (W. Va. 1983)
• Decision Date: 14 November 1983
• Docket Number: No. 15941,15941
• Parties: Jimmy Lee BUTCHER v. STATE WORKERS' COMPENSATION COMMISSIONER and Kanawha Coal Co.

Page 563

315 S.E.2d 563

173 W.Va. 306

Jimmy Lee BUTCHER v. STATE WORKERS' COMPENSATION COMMISSIONER and Kanawha Coal Co.

No. 15941.

Supreme Court of Appeals of West Virginia.

Nov. 14, 1983.

Dissenting Opinion Jan. 31, 1984.

Syllabus by the Court

1. One of the central points in Mitchell v. State Workmen's Compensation Commissioner, 163 W.Va. 107, 256 S.E.2d 1 (1979), was that where an employer desires to protest the jurisdictional basis of the award, he must do so within thirty days after the initial order awarding temporary total disability benefits.

2. "W.Va.Code, 23-5-1c, permits an employer, upon an application containing credible evidence, to request the Commissioner to terminate temporary total disability benefits. Under this section, evidentiary hearings are not required to be held by the Commissioner until an order terminating the benefits is entered and timely objection to the order has been made." Syllabus Point 3, in part, Mitchell v. State Workmen's Compensation Commissioner, 163 W.Va. 107, 256 S.E.2d 1 (1979).

3. Neither the Workers' Compensation statutes nor Mitchell v. State Workmen's Compensation Commissioner, 163 W.Va. 107, 256 S.E.2d 1 (1979), authorizes an employer, who has not originally protested the initial award of temporary total disability benefits, to protest subsequent awards of temporary total disability benefits and secure an evidentiary hearing over the continuation of temporary total disability benefits. Such employer's remedy is to file a petition for modification under W.Va.Code, 23-5-1c.

4. Where a claimant has properly furnished medical evidence and has been awarded a series of temporary total disability benefits, the claimant may not be deprived of these benefits by the Commissioner because he failed to respond to the fifteen-day notice letters issued pursuant to Rule 17.04 of the Rules and Regulations of the West Virginia Workmen's Compensation Fund (1982).

Timothy G. Leach, Charleston, for appellant.

Hall, Albertson & Jones and E. Forrest Jones, Jr., Charleston, for appellee.

MILLER, Justice:

This appeal by the claimant, Jimmy Lee Butcher, from an order of the Workers' Compensation Appeal Board dated June 10, 1983, raises several questions regarding the procedures for payment of temporary total disability claims under the Workmen's Compensation Act, W.Va.Code, 23-1-1 et seq. After examining the questions presented, we conclude that the procedures followed by the Workers' Compensation Commissioner in the claimant's case did not comport with the requirements of the Act and the decisions of this Court. We, therefore, reverse the decision of the Workers' Compensation Appeal Board.

On March 4, 1981, the claimant sustained an injury to his right knee in the course of and as a result of his employment with the Kanawha Coal Company. He filed a claim for workers' compensation benefits. The Commissioner, by order dated April 10, 1981, held that the claim was compensable and granted the claimant temporary total disability benefits. Four weeks benefits were awarded based upon the treating physician's estimate on Form WC-219 that temporary total disability would last for four weeks. ¹ The employer did not protest this order.

Subsequently by three separate orders the Commissioner extended the award of temporary total disability benefits for definite periods based upon the treating physician's further estimates of the period of temporary total disability. The employer protested further payment of temporary total disability benefits on May 20, 1981, when the Commissioner issued the second temporary total disability order. The employer also protested the two subsequent temporary total disability orders issued by the Commissioner extending benefits through June 1, 1981.

A hearing on the protests was scheduled for August 3, 1981. The claimant was directed by a letter from the Commissioner to appear so that the employer could cross-examine him. The claimant failed to appear, and the Commissioner subsequently sent him a "fifteen-day" letter, which indicated that he had fifteen days to give good cause for his nonappearance.

Apparently the claimant gave good cause as the Commissioner set another hearing on November 23, 1981. The claimant again failed to appear, and another "fifteen-day" letter was sent. The claimant failed to give good cause, and the Commissioner on February 2, 1982, set aside the orders of May 7, May 20, and June 3, 1981. The Commissioner also ruled that the payments made under those orders be treated as overpayments subject to collection. The claimant appealed to the Workers' Compensation Appeal Board. The Appeal Board, by its decision of June 10, 1983, affirmed the Commissioner's ruling.

On appeal the claimant argues that under Mitchell v. State Workmen's Compensation Commissioner, 163 W.Va. 107, 256 S.E.2d 1 (1979), the repayment provisions of W.Va.Code, 23-4-1c, apply only where the employer has timely protested the initial determination of temporary total disability and not where the employer has subsequently protested the continuation of temporary total disability payments. In effect, he claims that because the employer failed to protest the initial temporary total disability order of April 10, 1981, the repayment provisions do not apply.

I.

To properly focus the issues in this case, a brief review of the background and holdings in Mitchell is necessary. In Syllabus Point 2 of Mitchell, we recognized that the commissioner has broad statutory powers in making, refusing, or modifying temporary total disability awards and that such actions could be "taken without the necessity of advance evidentiary hearings." ² A basic theme of Mitchell was an analysis of the temporary total disability provisions of the Workmen's Compensation Act to provide the Commissioner with guidelines that would enable the Commissioner to promptly and efficiently handle temporary total disability claims. See also Honaker v. State Workmen's Compensation Commissioner, W.Va., 298 S.E.2d 893 (1982).

Prior to Mitchell, the handling of temporary total disability claims was a veritable Serbonian Bog of adversarial proceedings which resulted in temporary total disability claims being litigated over periods of months or years. The most apparent beneficiaries were the lawyers whose clients could withstand the fee-rigors of the system. Historically, temporary total disability benefits were the initial benefits an injured worker received to compensate for wages lost because of his inability to work. Prior to the 1974 amendments to W.Va.Code, 23-4-1c, payments of temporary total disability benefits were stopped when an employer protested their continued payment. ^{3 3} It was not necessary for the employer to furnish any reason for protesting continuation of the temporary total disability benefits. Once the protest was made by an employer, the Commissioner would order an adversarial hearing. It was not until the conclusion of this adversarial process, which often consumed a period of months or years, that the Commissioner would then decide the claimant's right to resumption of temporary total disability benefits. The ultimate consequence of this procedure was that an employer's protest would suspend the payment of a claimant's temporary total disability benefits, which would work substantial economic hardship on the injured claimant because the adversarial hearings took so long to resolve the issue.

The legislature, in an attempt to alleviate this hardship on claimants who were seeking temporary total disability benefits, amended W.Va.Code, 23-4-1c, in 1974. The amendment provided that if an employer filed a protest to a temporary total disability award, the Commissioner should continue to pay the disability benefits during the course of the protest. The amendment also provided that if the Commissioner ultimately decided the claimant was not entitled to the benefits, the Commissioner should enter an order reimbursing the employer for the overpayment. The Commissioner would then seek to collect the overpayment from the claimant. ⁴

Despite the obvious good intention on the part of the legislature by the amendment of W.Va.Code, 23-4-1c, the underlying adversarial climate fostered continued inequities. Although an employer's protest did not stop payment of temporary total disability benefits, the adversarial nature of the proceeding, with its concomitant hearings and continuances for the convenience of the lawyers or their medical experts, still resulted in extreme delay in resolving the right to temporary total disability. The problem was further exacerbated by the Commissioner's practice, after the claims were finally submitted, of deciding the temporary total disability issue and cutting off temporary total disability benefits retroactively to some date prior to the date of the entry of the order. This would mean that the claimant who had been receiving temporary total disability during the protest period would find that some of the benefits were subject to repayment. It was against this backdrop that we decided Mitchell v. State Workmen's Compensation Commissioner, supra. ⁵ The essential points of Mitchell can be summarized as follows:

FIRST, it is the Commissioner who is authorized to make, refuse or modify awards for temporary total disability, and no advance evidentiary hearings are required.

SECOND, the Commissioner makes such determinations based on credible evidence furnished through reporting forms, information supplied by the parties and independent medical evaluations ordered by the Commissioner under W.Va.Code, 23-4-8.

THIRD, if the Commissioner after granting temporary total disability is made aware through the Commissioner's own reporting forms or information supplied on independent medical examination or from information supplied by the employer on an application under W.Va.Code, 23-5-1c, that temporary total disability benefits are no longer warranted, temporary total...