Dunlap v. State Compensation Director, No. 12402

• Court: Supreme Court of West Virginia
• Writing for the Court: CALHOUN
• Citation: 149 W.Va. 266,140 S.E.2d 448
• Parties: Gale D. DUNLAP v. STATE COMPENSATION DIRECTOR et al.
• Docket Number: No. 12402
• Decision Date: 23 February 1965

Page 448

140 S.E.2d 448 149 W.Va. 266 Gale D. DUNLAP
v.
STATE COMPENSATION DIRECTOR et al. No. 12402. Supreme Court of Appeals of West Virginia. Submitted Feb. 2, 1965.
Decided Feb. 23, 1965.

Page 449

Syllabus by the Court

1. 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.

2. The right to workmen's compensation benefits is wholly statutory. Under the workmen's compensation statutes of this state, a claimant has a right to receive benefits and the director of workmen's compensation is authorized to pay benefits to a claimant in no greater amount than is expressly authorized by statute.

3. When the director of workmen's compensation makes an award of 'total permanent' disability benefits, he is required, in making payment, to compute the amount thereof from the date of disability and to take into account all prior disability benefits previously paid to the claimant for the same disability.

Jeter, Jeter & Jeter, James C. Jeter, Charleston, for appellant.

Dores D. McDonnell, Sr., Charleston, for appellee.

[149 W.Va. 267] Jackson, Kelly, Holt & O'Farrell, R. G. Kelly, David D. Johnson, Charleston, for West Virginia Coal Ass'n, as amicus curiae.

CALHOUN, Judge.

This case is before the Court on an appeal by the claimant, Gale D. Dunlap, from an order of the workmen's compensation appeal board dated November 6, 1964. Briefs were filed and oral arguments were made before the Court in behalf of the claimant and in behalf of the director of workmen's compensation. An amicus curiae brief was filed by permission of the Court in behalf of The West Virginia Coal Association. No appearance was made in this Court by or in behalf of the employer, T. A. Chapman.

The question presented for decision is whether the director, in making an award of total permanent disability benefits, was

Page 450

authorized and required to deduct temporary total benefits previously paid to the claimant for the period from the date of the injury and consequent disability to the date of the award of total permanent disability benefits.

It is not disputed that the claimant received a compensable injury on December 8, 1961; nor is it disputed that he is entitled to the award of total permanent disability benefits made by the director on March 25, 1963. The term 'total permanent,' when applied to an award, is not used in the workmen's compensation statutes; but the term is quite generally used to refer to 'a disability of eighty-five to one hundred per cent' for which the claimant is entitled to be paid 'sixty-six and two thirds per cent of the average weekly earnings during the remainder of life,' not to exceed a maximum of $38.00 a week nor to be less than a minimum of $22.00 a week. Code, 1931, 23-4-6, as amended. The claimant in this case was never paid benefits on a permanent partial basis.

On May 20, 1963, the claimant filed a petition with the director in which he asserted that during the period from December 8, 1961, the date of the injury, until March 25, 1963, the date of the total permanent disability award, he was entitled to receive both the temporary total benefits and the total permanent benefits. Stated otherwise, the claimant [149 W.Va. 268] contends that the award of total permanent disability benefits should relate back to and be paid from the date of the disability without any deduction of the total temporary benefits which had been paid to him prior to the date of the total permanent disability award.

By an order dated June 11, 1964, the director denied the prayer of the petition. In doing so, he stated that Code, 1931, 23-4-6, as amended, does not contemplate double payment as contended for by the claimant, but 'that it expressly prohibits payment of compensation in any form over and above the maximum expressed therein for any one period of time.' The claimant protested, the matter was again considered and by an order dated July 1, 1964, the director affirmed his prior order. On an appeal by the claimant, the workmen's compensation appeal board, by an order dated November 6, 1964, affirmed the action of the director. In doing so, the appeal board apparently placed chief reliance upon Code, 1931, 23-4-6(h), as amended, which limits compensation payable 'under any subdivision of this section' to $38.00 a week.

The question presented for decision is purely one of law involving the provisions of Chapter 23,...