Gallardo v. Workers' Compensation Com'r
| Decision Date | 16 September 1988 |
| Docket Number | No. 18002,18002 |
| Citation | 179 W.Va. 756,373 S.E.2d 177 |
| Parties | Betty GALLARDO v. WORKERS' COMPENSATION COMMISSIONER and CATO Corp. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. "In order to obtain workmen's compensation benefits for total disability resulting from a second injury coupled with a non-compensable definitely ascertainable physical impairment, such physical impairment must have been caused from an injury and not a disease unless such physical impairment was an occupational disease proved to have been proximately caused by employment." Syllabus Point 2, Bannister v. State Workmen's Compensation Comm'r, 154 W.Va. 172, 174 S.E.2d 605 (1970).
2. "West Virginia Code, chapter 23, article 4, section 9b, as amended, expressly excludes from its provisions the rating of compensable injuries resulting in a lifetime award of total permanent disability within the meaning of the second injury provision of West Virginia Code, chapter 23, article 3, section 1, as amended." Syllabus Point 4, Gillispie v. State Workmen's Compensation Comm'r, 157 W.Va. 829, 205 S.E.2d 164 (1974).
Otis R. Mann, Jr., Charleston, for Betty Gallardo.
Jenkins, Fenstermaker, Krieger, Kayes & Farrell, Huntington, for Cato Corp.
The claimant seeks a total and permanent disability award due to the combined effects of a work-related injury which is claimed to have aggravated a preexisting arthritic condition which had not been disabling. The Commissioner and Appeal Board refused to grant a permanent total disability award.
On September 29, 1980, the claimant, who was approximately fifty years old and was employed as the manager of a retail clothing store, fell backward while lifting a mannequin. She apparently struck her back in the fall and experienced severe dorsal back pain and found it extremely difficult to straighten up. She returned to work on October 2, 1980, and was able to continue working despite substantial pain until February, 1981, when she stopped working upon the advice of her physician.
The claimant had a preexisting arthritic condition which had caused her some pain and discomfort; however, it was not disabling. She was able to marry, have children, and work for some thirty-six years primarily as a sales clerk, without missing any work due to her arthritic condition.
Following the 1980 injury, the Workers' Compensation Commissioner referred her to James A. Heckman, M.D., for an evaluation. In his December, 1983 report, Dr. Heckman found that the claimant had rheumatoid arthritis of the cervical spine and some abnormalities of the dorsal and lumbar spine. Dr. Heckman indicated that it would be an extremely difficult, if not an impossible, task to determine the amount of impairment due to the compensable injury. He did, however, estimate a 10 percent permanent impairment of function related to the compensable injury. Dr. Heckman expressed no opinion concerning the claimant's ability to return to her customary work. The Commissioner granted the claimant a 10 percent permanent partial disability award in January, 1984, based on this recommendation.
The claimant protested and introduced a September, 1984 medical report from George F. Fordham, M.D., whose medical findings concerning the claimant's physical impairment were similar to Dr. Heckman's. He also commented that it would be impossible to "separate out injury related disability with her arthritic disability." Because she had been able to work until the time of the injury, and in the absence of a clear cut line of demarcation, Dr. Fordham estimated that 50 percent of her disability was due to the injury.
Thomas H. Scott, M.D., examined the claimant in May, 1985, on behalf of the employer. Dr. Scott found evidence of rheumatoid arthritis in the cervical spine as well as "rather profound scoliosis involving the dorsal and lumbar spine." He expressed the opinion that the claimant's underlying rheumatoid arthritis had been exacerbated and aggravated by her occupational injury and that she was permanently disabled from gainful employment at the present time. He believed she would definitely need continuing medical treatment and estimated her permanent disability or impairment secondary to her compensable injury at 15 percent of the body as a whole.
The claimant also introduced a vocational report prepared by Phyllis Shapiro, who expressed the opinion that the claimant was permanently and totally disabled based on the claimant's age, limited ninth-grade education, previous employment history, and present medical condition.
The claim was then submitted for decision. The Commissioner by order of July 15, 1986, increased the 10 percent permanent partial disability award previously granted to a 15 percent permanent partial disability award. The Appeal Board affirmed based primarily on the lack of equivocation found in Dr. Scott's report recommending a 15 percent permanent partial disability award. The Appeal Board also rejected the claimant's argument that she was entitled to a permanent total disability award, stating:
Our decisions applying the second injury fund statute, W.Va.Code, 23-3-1, 1 have consistently held that the claimant's preexisting impairment must have been the result of an injury, not a disease, unless it is an occupational disease as defined in W.Va.Code, 23-4-1. 2 In Mullins v. State Workmen's Compensation Comm'r, 165 W.Va. 194, 271 S.E.2d 771 (1980), and Boggs v. State Workmen's Compensation Comm'r, 163 W.Va. 413, 256 S.E.2d 890 (1979), we followed this interpretation of the second injury fund statute originally enunciated in Syllabus Point 2 of Bannister v. State Workmen's Compensation Comm'r, 154 W.Va. 172, 174 S.E.2d 605 (1970):
"In order to obtain workmen's compensation benefits for total disability resulting from a second injury coupled with a non-compensable definitely ascertainable physical impairment, such physical impairment must have been caused from an injury and not a disease unless such physical impairment was an occupational disease proved to have been proximately caused by employment."
The claimant in Mullins was a coal miner who sought a permanent total disability award due to the combined effects of occupational pneumoconiosis, for which he had been granted a 40 percent permanent partial disability award, and a preexisting calcification of his lung. The Court denied the award under the Bannister rule, finding no evidence that the calcification was work related or anything other than an ordinary disease of life.
In Boggs, the claimant received a 50 percent permanent partial disability award for occupational pneumoconiosis. Later, he requested to reopen the claim to consider the combined effects of a prior impairment together with his occupational pneumoconiosis. The claimant's prior impairment involved tuberculosis which had resulted in a collapsed lung. It was undisputed that the combination of the residual effects of the collapsed lung and his occupational pneumoconiosis rendered him totally disabled. This Court in reliance on Bannister affirmed the Appeal Board's denial of a permanent total disability award on the basis that the collapsed lung resulted from a disease and not from a previous injury. 3
In a number of cases, 4 we have recognized a relationship between our apportionment statute, W.Va.Code, 23-4-9b, 5 and our second injury statute, W.Va.Code, 23-3-1. The relationship arose because the apportionment statute refers to the second injury statute. The language of the apportionment statute makes it clear that it does not apply to second injury life awards. The reason is obvious: a second injury life award claimant must of necessity have prior injuries on which to build the life award. The second injury statute clearly intends this result as the claimant must show he has become "permanently and totally disabled through the combined effect of such previous injury and a second injury" received in his employment. W.Va.Code, 23-3-1. 6 If the apportionment statute were to apply, it would negate the second injury statute by permitting the claimant's earlier disabilities to be excluded from consideration in a second injury life award claim. Stated another way, our apportionment statute does not apply to the second injury statute, as we stated in Syllabus Point 4 of Gillispie:
"West Virginia Code, chapter 23, article 4, section 9b, as amended, expressly excludes from its provisions the rating of compensable injuries resulting in a lifetime award of total permanent disability within the meaning of the second injury provision of West Virginia Code, chapter 23, article 3, section 1, as amended."
Although the Appeal Board correctly concluded that the second injury fund statute was not applicable in this claim, the claimant did not...
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