Dunlap v. State Workmen's Compensation Com'r

• Court: West Virginia Supreme Court
• Writing for the Court: MILLER
• Citation: Dunlap v. State Workmen's Compensation Com'r, 232 S.E.2d 343, 160 W.Va. 58 (W. Va. 1977)
• Decision Date: 15 February 1977
• Docket Number: No. 13782,13782
• Parties: Stanley E. DUNLAP v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Trojan Steel Company.

Page 343

232 S.E.2d 343

160 W.Va. 58

Stanley E. DUNLAP v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Trojan Steel Company.

No. 13782.

Supreme Court of Appeals of West Virginia.

Feb. 15, 1977.

Syllabus by the Court

1. An injured employee, who receives temporary total disability benefits, does not lose those benefits when he attempts to return to work and is unable to continue working because of the medical condition which gave rise to his temporary total disability.

2. If an injured employee provides some evidence to demonstrate that a particular injury did arise from the subject industrial accident, absent evidence which to some degree of certainty attributes the injury to a cause other than the subject accident, it will be presumed to have resulted from such accident.

Michael R. Crane, Boettner & Campbell, Charleston, for appellant.

M. Thomas Persinger, Payne, Minor, Ray, Price & Loeb, Charleston, for appellees.

MILLER, Justice:

In this Workmen's Compensation case, we consider whether an attempt to return to work by a claimant receiving temporary total disability benefits should result in a termination of those benefits. The Commissioner and the Appeal Board hold that it does. We disagree and reverse.

On March 23, 1974, claimant was working for Trojan Steel Company and received an injury while pulling iron rods. He initially was seen by Dr. Shepherd with complaints of pain in his neck, shoulder and left arm. He was treated and when his condition did not improve he was referred to Dr. Caudill, an orthopedic surgeon, who diagnosed the problem in the neck as an intervertebral disk injury and consequently operated and removed the disk at C--6.

Claimant was awarded temporary total disability benefits. On August 21, 1974, he secured employment with the Alcohol Beverage Control Commission and advised his former employer, Trojan Steel, of this fact on August 23. His work with the Alcohol Beverage Control Commission basically involved operating a fork lift truck. Claimant testified that he ceased working on September 6, 1974, because he was experiencing pain in his left arm, shoulder and also in the low back.

Trojan Steel filed a protest with the Commissioner on the basis that temporary total disability benefits should have been terminated on the date that the claimant began his employment with the Alcohol Beverage Control Commission. Several administrative hearings were held in connection with the employer's protest and claimant was examined under oath and testified that at no time during his work with the Alcohol Beverage Control Commission did he have any accident or injury.

Testimony was also taken from Drs. Shepherd and Caudill, both of whom had had occasion to examine the claimant after he ceased employment with the Alcohol Beverage Control Commission. Each of these doctors indicated that the claimant still had residual disability arising from the cervical disk injury and also found that claimant did have a lumbosacral strain.

In the course of their examination of the claimant each of the doctors had obtained a brief history on the claimant as to the circumstances surrounding what had occasioned the low back injury. The status of the record in this regard is at best unclear since neither doctor took a detailed history from the claimant. It does appear, however, that the claimant, in relating how his back complaints had initially occurred, made reference to the fact that it happened while at work pulling steel rods.

At the hearings, under questioning by the employer's lawyers as to whether or not the lumbosacral strain could be related to the initial accident in March, 1974, both doctors expressed some doubt as to being able to medically relate the low back symptoms to the March accident.

It appears that the basis for their indecision rests on the fact that their records did not show that after the March accident the claimant had any complaints involving the low back area.

The Commissioner ruled that temporary total disability benefits subsequent to August 21, 1974, the date when the claimant had started to work for the Alcohol Beverage Control Commission, be stopped and the claim be closed on a temporary total disability basis. The Appeal Board affirmed the Commissioner's ruling and in a written opinion stated that the Commissioner was correct in stopping temporary total disability benefits, and that while the record was not clear, it appeared that the claimant had received a second injury involving the low back while employed at the Alcohol Beverage Control Commission.

It is apparent from the record that the claimant ceased work with the Alcohol Beverage Control Commission because he felt physically unable to continue working. Medical reports of his condition after he stopped working indicate that he still had considerable residual disability from the initial injury.

The threshold question, which neither the Commissioner nor the Appeal Board appears to have considered in any detail, is whether an attempt to return to work bars further receipt of temporary total disability benefits. We can find no case in which this point appears to have been directly decided by this Court. In Perry v. State Workmen's Compensation Commissioner, 152 W.Va. 602, 165 S.E.2d 609 (1969), this Court stated it was the purpose of the Workmen's Compensation law to provide temporary total disability benefits to an injured workman for the period of time necessary for him to reach the maximum degree of improvement, at which point he should then be rated for a permanent disability award. See also Dickerson v. State Workmen's Compensation Commissioner, 154 W.Va. 7, 173 S.E.2d 388 (1970).

In reviewing the Workmen's Compensation Act, we do not find any specific language that relates return to work as affecting total temporary disability benefits. Under the provisions of W.Va.Code, 23--4--6(b), once a finding of temporary total disability is made the injured employee '. . . shall receive during the continuance thereof weekly benefits as follows: . . .' Under subdivision (c) of this same section, which sets out the maximum allowable award for temporary total disability, it is stated that '. . . (an) aggregate award for a single injury causing temporary disability shall be for a period not exceeding two hundred eight weeks.'

Certainly, the words 'during the continuation thereof' and 'aggregate award' suggest the conclusion that temporary total disability need not be limited to a continuous period of disability. Indeed, a valid social policy can be served by encouraging an injured employee on temporary total disability to attempt to return to work.

If he is able to work his period of disability is diminished. He is restored to his former wage level and becomes once again a contributing member of the work force. His employer gains in diminished compensation exposure. It would run counter to such desirable ends if we were to rule that the employee must bear the risk of loss of his temporary total disability benefits if he attempts return to work and then has...