Dickerson v. State Workmen's Compensation Com'r

• Decision Date: 26 March 1970
• Docket Number: No. 12868,12868
• Citation: 173 S.E.2d 388,154 W.Va. 7
• Court: West Virginia Supreme Court
• Parties: David W. DICKERSON v. STATE WORKMEN'S COMPENSATION COMMISSIONER and U.S. Steel Corporation.

Page 388

173 S.E.2d 388

154 W.Va. 7

David W. DICKERSON v. STATE WORKMEN'S COMPENSATION COMMISSIONER and U.S. Steel Corporation.

No. 12868.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 27, 1970.

Decided Feb. 10, 1970.

Dissenting Opinion March 6, 1970.

Rehearing Denied March 26, 1970.

Syllabus by the Court

1. 'The state compensation commissioner has no power or jurisdiction to vacate, set aside or modify a final order made by him except in instances in which it appears that he lacked jurisdiction to enter such order or that it was made or procured through fraud or mistake.' Syllabus, point 1, Partlow v. Workmen's Compensation Commissioner, 150 W.Va. 416 (146 S.E.2d 833).

2. A 'mistake' which would justify a setting aside by the Workmen's Compensation Commissioner of a final order must be something other than an erroneous decision.

Campbell, Love, Woodroe & Kizer, George W. S. Grove, Jr., Charleston, for appellants.

R. L. Theibert, Charleston, for appellee.

BROWNING, President.

This is an appeal by United States Steel Corporation from a final order of the Workmen's Compensation Appeal Board entered June 30, 1969, which order reversed a final order of the Workmen's Compensation Commissioner entered February 20, 1969.

Claimant, appellee herein, sustained a hand injury while working for the employer on November 3, 1966. For this injury he received extensive treatment during which time he lost no time from work. However, it eventually became apparent that the right index finger would have to be amputated. Claimant was admitted to a hospital on July 26, 1967, in Welch, and from that date until October 30, 1967, he was required to be away from his work. During this period, 12 5/7ths weeks, he was paid temporary total disability benefits. On referral by the commissioner, a physician estimated an overall permanent partial disability of twenty percent composed of the statutory award of ten percent for loss of the index finger and ten percent for additional disability to the same hand. By order dated February 27, 1968, the commissioner granted the ten percent statutory award and by order dated March 15, 1968, he granted the additional ten percent permanent partial award as recommended by the physician. On March 19, 1968, the commissioner entered a 'corrective' order by which he reduced the additional ten percent award by the amount of the temporary total benefits paid for the 12 5/7ths weeks.

This order was protested by the claimant, and at a hearing held in Welch on January 30, 1969, counsel for both parties stipulated that the lost time resulted solely from the amputation and the necessary subsequent treatment. Here is what transpired:

BY MR. THEIBERT:

We stipulate that 12 5/7ths weeks' lost time was because of the amputation of the right index finger.

It is the claimant's position that this 12 5/7ths weeks' total temporary disability benefits, since it was due to the amputation, should not be deducted either from the statutory award or from the additional 10% That the claimant received because of other residuals.

BY MR. GROVE:

It is our position that it can not be deducted from the statutory award. It must be deducted from any additional disability granted. And since this is a legal question it seems the claim will have to be submitted for a ruling by the Commissioner on the legality.

It is apparent from this that the parties desired to reduce the controversy solely to the legal question involved. (Although in oral argument before this Court it appeared as though there was some misunderstanding as to the full implications of this stipulation, we believe that the parties stipulated to the fact plainly stated therein, i.e., that the lost time from work resulted from and only from the amputation of the finger and recovery and treatment therefor.)

On February 20, 1969, after the hearing, the commissioner held that:

(I)t is further ordered and directed that payment of all compensation on a total temporary disability basis be deducted from the 20% Permanent partial disability award.

This was appealed by the claimant, and was reversed by the Appeal Board on June 30, 1969. In its opinion, the Appeal Board stated:

The evidence clearly establishes that the lost time involved in this case and for which total temporary disability payments were made under the provisions of Code 23--4--6(a) resulted solely from the amputation of the finger and not from the other disability claimant sustained to his finger.

We, therefore, believe that the statutes should have a reasonable and practical application so as to carry out the remedial purposes thereof. Consequently, we hold that under the provisions of Code 23--4--6(i), the payments made to claimant in the amount of $534.00 upon a total temporary disability basis should not be deducted from the 20% Permanent partial disability awarded him.

It is from this ruling that the employer appeals.

Prior to the 1965 amendment of Code 23--4--6, subdivision (i) read as follows:

(i) Where an injury results in temporary total disability for which compensation is awarded under subdivision (a) of this section and such injury is later determined permanent partial disability under subdivision (c), the amount of compensation so paid shall be considered as payment of the compensation payable for such injury in accordance with the schedule in subdivision (c).

This is the proviso added to subdivision (i) by the 1965 amendment:

Provided further, That in cases where the amount of permanent partial disability is specifically provided for under subdivision (d) of this section, payments made under subdivision (a) shall not be considered as payment of the compensation for such injury. Chapter 162, Article 4, Section 6, Acts of the Legislature, 1965 Regular Session.

Subdivision (c), insofar as applicable, provides for payment of four weeks of compensation for each percent of permanent disability from one to eighty-four percent inclusive. The provision in subdivision (i) that previous temporary total disability payments made under subdivision (a) should be deducted from any permanent disability award made 'in accordance with the schedule in subdivision (c)' was not charged by the 1965 amendment. It is not clear from this record why the Workmen's Compensation Commissioner divided the twenty percent permanent partial disability of the claimant into two awards. It is clear from the provisions of Code 23--4--1, as amended, and from the decisions of this Court, that an injury is an isolated fortuitous event received by an employee in the course of and resulting from his employment with his employer. In some instances the 'fortuitous event' may result in disability to more than one part of the employee's body but it is only one 'injury.' It is clear also from the pertinent provisions of the statute that when a claimant has attained the maximum degree of improvement subsequent to his injury that he shall be granted such permanent disability as the medical and other evidence warrants. There is no provision in the Workmen's Compensation Law which empowers the commissioner to make an award with regard to one injured part of a claimant's body, litigate that question if there is objection thereto and at some subsequent time enter another order with regard to the disability to another portion of the claimant's body and start the process all over again. Unless the claimant objected to such piecemeal handling of his claim he might be confronted with the law as stated in the two syllabus points of Taylor v. Workmen's Compensation Comr., 151 W.Va. 409, 151 S.E.2d 283:

1. Where the compensation commissioner makes an award of compensation based upon a finding of permanent partial disability, which award becomes final by failure to protest against or appeal therefrom, the case cannot be reopened, or any additional compensation awarded unless there is a showing of a progression or aggravation in the claimant's condition, or some fact or facts not theretofore considered by the commissioner in his former findings and which would entitle the claimant to a greater benefit than that previously granted.

2. Facts appearing in the record at the time of an award of compensation for permanent partial disability will be treated as having been considered by the commissioner in making such award.

It might have been impossible for the claimant to have made a showing for a reopening of his claim under the provisions of 23--5--1a, as amended, with regard to the additional injury to his hand if he had not protested the ten percent award for the specific loss by amputation.

It is the contention of the employer in this case that since a part of the twenty percent permanent partial disability award which was granted to the claimant after a hearing comes under the first part of subdivision (i) of Section 6, quoted above, which provides that: '(T)he amount of compensation so paid shall be considered as payment of the compensation payable for such injury in accordance with the schedule in subdivision (c),' the temporary total disability payments of 12 5/7ths weeks must be deducted from the twenty percent permanent partial disability award. In other words, since part of the twenty percent award was for a permanent disability other than the amputation, the deduction is contrary to the statutory provisions even though all of the lost time for which the 12 5/7ths weeks of temporary total disability was paid resulted from the amputation. Upon the facts of this case, the claimant contends to the contrary relying upon what he states to be 'clear and unambiguous' language of the 1965 amendment. Inasmuch as the order of the Workmen's Compensation Appeal Board must be affirmed upon a jurisdictional ground we make no determination as to whether the pertinent section after the 1965 amendment is, upon the facts of this case, clear and unambiguous or, if an ambiguity was created by the amendment, whether the section was properly...