Fakourey v. Workmen's Compensation Com'r

• Court: West Virginia Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Fakourey v. Workmen's Compensation Com'r, 258 S.E.2d 526, 163 W.Va. 551 (W. Va. 1979)
• Decision Date: 17 July 1979
• Docket Number: No. 14302,14302
• Parties: David J. FAKOUREY v. WORKMEN'S COMPENSATION COMMISSIONER and City of Huntington.

Page 526

258 S.E.2d 526

163 W.Va. 551

David J. FAKOUREY v. WORKMEN'S COMPENSATION COMMISSIONER and City of Huntington.

No. 14302.

Supreme Court of Appeals of West Virginia.

July 17, 1979.

As Amended on Denial of Rehearing Oct. 4, 1979.

Syllabus by the Court

1. "Under the Workmen's Compensation Act, W.Va.Code, 23-1-1, Et seq., temporary total disability benefits should be terminated where the Commissioner finds that a claimant either has reached his maximum degree of medical improvement from the industrial accident, or has been medically certified to return to work." Syl. pt. 1, Mitchell v. State Compensation Commissioner, 256 S.E.2d 1 (W.Va. 1979).

2. "In a proceeding under W.Va.Code, 23-5-1c, to terminate temporary total disability benefits, the proper date for termination of the benefits is the date of the Commissioner's termination order." Syl. pt. 5, Mitchell v. State Compensation Commissioner, 256 S.E.2d 1 (W.Va. 1979).

Kathleen Strasbaugh, Huntington, for appellant.

W. Dan Egnor, Huntington, for appellees.

PER CURIAM:

By order entered May 31, 1978, the Workmen's Compensation Appeal Board affirmed a decision of the Workmen's Compensation Commissioner terminating the claimant, David J. Fakourey's, entitlement to temporary total disability benefits effective as of February 15, 1977. In this appeal the claimant contends:

1. The evidence adduced in the case does not support a finding that he had reached maximum recovery on February 15, 1977; the Commissioner, therefore, erred in holding that he was no longer entitled to temporary total disability benefits; and

2. The Appeal Board and the Commissioner erred in failing to examine him closely on his lack of legal representation and in failing to advise him of the benefits of such representation.

The record in this case discloses that in November 1974, the claimant sustained a low back injury when the meter buggy, which he was operating for the City of Huntington, was struck by another vehicle.

The claimant returned to work in April 1975. Between the time of his accident and his return to work he collected temporary total disability benefits.

In September 1975, the claimant, complaining about his low back, again stopped working. At that time temporary total disability benefits were reinstated.

On August 17, 1976, Dr. Robert L. Mattill, the claimant's treating physician, reported:

"Mr. Fakourey has been disabled since 9/12/75 and remains disabled at this time, and will be disabled another one or two months time. Attention to his compensation will be appreciated."

More than one year later, after the employer had protested the payment of additional temporary total disability benefits, the Commissioner referred the claimant to Dr. James A. Heckman, an orthopedic surgeon, for evaluation. On February 15, 1977, Dr. Heckman, after examining the claimant, reported, in part:

"In summary, this examiner can find no objective findings to substantiate this patient's continued subjective complaints. It is almost unbelievable that a 28 year old white male would have missed work for two years on the basis of the present findings.

"It is the opinion of this examiner that this patient has no permanent disability as a result of the injury."

After receiving the report of Dr. Heckman, the Workmen's Compensation Commissioner, on August 15, 1977, entered an order terminating the claimant's temporary total disability benefits effective as of February 15, 1977 (the date of Dr. Heckman's report).

By order dated May 31, 1978, the Workmen's Compensation Appeal Board affirmed the Commissioner's decision.

We note that throughout the proceedings before the Workmen's Compensation Commissioner the claimant apparently represented himself even though a Huntington law firm made inquiries in his behalf. Also, until May 1978, the claimant's treating physician, Dr. Robert L. Mattill, regularly billed the Workmen's Compensation Fund for monthly office visits by the claimant.

The claimant now takes the position that the evidence adduced does not support the Commissioner's finding that he reached his maximum degree of recovery. He contends that he should, therefore, still be receiving temporary total disability benefits.

In our recent decision in Mitchell v. State Compensation Commissioner, 256 S.E.2d 1 (W.Va.1979), we examined the legal aspects of proceedings to terminate temporary total disability benefits. We distinguished proceedings for termination of such benefits brought under W.Va.Code, 23-5-1, from those brought under W.Va.Code, 23-5-1c. Because the employer moved to terminate Mr. Fakourey's benefits more than thirty days after the award of such benefits, the proceedings in this case, for the reasons stated in Mitchell, are obviously proceedings under W.Va.Code, 23-5-1c.

With regard to such proceeding, we stated in syllabus point 1 of mitchell:

"Under the Workmen's Compensation Act, W.Va.Code, 23-1-1, Et seq., temporary total disability benefits should be terminated where the Commissioner finds that a claimant either has reached his maximum degree of medical improvement from the industrial accident, or has been medically certified to return to work."

We also said in syllabus point 5 of Mitchell :

"In a proceeding under W.Va.Code, 23-5-1c, to...