Gillispie v. State Workmen's Compensation Com'r

• Citation: 205 S.E.2d 164,157 W.Va. 829
• Decision Date: 21 May 1974
• Docket Number: No. 13451,13451
• Court: Supreme Court of West Virginia
• Parties: Jessie F. GILLISPIE v. STATE WORKMEN'S COMPENSATION COMMISSIONER and M and E Coal Company.

Page 164

205 S.E.2d 164

157 W.Va. 829

Jessie F. GILLISPIE v. STATE WORKMEN'S COMPENSATION COMMISSIONER and M and E Coal Company.

No. 13451.

Supreme Court of Appeals of West Virginia.

May 21, 1974.

Syllabus by the Court

1. By authority of West Virginia Code, chapter 23, article 5, section 4, as amended, the Workmen's Compensation Commissioner may appeal adverse legal determinations made by the Workmen's Compensation Appeal Board to rulings of the Commissioner allocating charges between different accounts in the Workmen's Compenstion Fund.

2. Legal conclusions of the Workmen's Compensation Appeal Board, based upon undisputed findings of fact, are subject to review in the Supreme Court of Appeals by authority of West Virginia Code, chapter 23, article 5, section 4, as amended.

3. 'A claimant is permanently and totally disabled under our workmen's compensation statute when he is unable to perform any remunerative work in a field of work for which he is suited by experience or training.' Part syllabus point 3., Posey v. State Workmen's Compensation Commissioner, W.Va., 201 S.E.2d 102 (1973).

4. 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.

5. West Virginia Code, chapter 23, article 4, section 9b, as amended, provides a formula which generally excludes from the Workmen's Compensation Commissioner's consideration any prior definitely ascertainable physical impairment of a claimant in the rating of and percentage allocation to a current compensable injury resulting in an award of permanent partial disability.

6. The case of Ball v. Workmen's Compensation Commissioner, W.Va., 194 S.E.2d 229 (1973), interpreting West Virginia Code, chapter 23, article 4, section 9b, as amended in 1947 and effective until 1971, is authority for the proposition that the Workmen's Compensation Commissioner cannot properly deduct or exclude a prior compensable claim from consideration of a disability rating for a current claim for permanent partial disability under Code 1931, 23--4--9b, as amended, unless the previous impairment had been definitely ascertained and rated, as such, by an award of permanent partial disability allocated in terms of percentage.

7. The workmen's compensation law does not authorize injured workmen to be twice compensated for the same disability.

8. An injured workman's definitely ascertainable pre-existing physical impairments are to be excluded from the Workmen's Compensation Commissioner's consideration in the allocation of disability ratings for injuries resulting in permanent partial awards.

9. Awards for permanent total disability are to be ascertained by utilizing and aggregating all definitely ascertainable prior impairments to determine if the claimant is, at the minimum, 85% Disabled to perform work in a field of employment for which he is suited by experience or training.

10. Once the Workmen's Compensation Commissioner has made a determination that an injured workman is entitled to an award of total permanent disability, the claimant's employer shall be chargeable only for the compensation payable for the current disability rating attributable to the 'second injury' and the employee shall thereafter be paid the remainder of the compensation that would be due for permanent total disability out of a special reserve of the surplus fund known as the second injury reserve.

J. Thomas Lane, Legal Div., Charleston, for appellant (Workmen's Compensation Commissioner).

George G. Burnette, Jr., Charleston, for appellee (Gillispie).

HADEN, Justice:

This is an appeal by the Workmen's Compensation Commissioner from a final order of the Workmen's Compensation Appeal Board dated November 29, 1973, in which the Board reversed the Commissioner's prior determination that the claimant had suffered a 25% Permanent partial disability for a compensable injury to his back and in reversing, then awarded the claimant a 50% Permanent partial disability for his current injury and also granted him a life award for total permanent disability, payable from the second injury fund. The Commissioner prosecutes this appeal under the authority of West Virginia Code, chapter 23, article 5, section 4, as amended. See also, Cline v. Workmen's Compensation Commissioner, W.Va., 196 S.E.2d 296 (1973).

This appeal is limited to the question of a proper allocation of charges as between and against the accounts of an employer participating in the Workmen's Compensation Fund and the second injury reserve fund underwritten by all employers participating in the Fund when a covered employee becomes eligible for a life award by reason of having suffered a current compensable second injury which, when cumulated with prior injuries, renders him totally and permanently disabled within the meaning of the law.

The claim which culminated in the life award for total disability originated from a back injury claimant suffered on December 19, 1968 when a jack dislodged a rock in the mine. Turning to avoid the moving rock, Mr. Gillispie sprained his back, resulting in a claim which the Commissioner held to be compensable. Accordingly, the claimant was paid temporary disability benefits for 106 weeks. Upon consideration of the 1968 injury and previous injuries, the medical examiners concluded in substantial agreement that Mr. Gillispie now suffers an aggregate 50% Permanent partial disability to his back.

The evidence in this case also clearly demonstrated, as the Board found, that claimant had suffered numerous other injuries during his life, both compensable and noncompensable, which have rendered him totally and permanently disabled from pursuing his vocation as a coal miner, the field of work for which he was suited by experience or education. This factual finding is acknowledged as correct by the appellant Commissioner. All parties further agree that the total disability question is answered and controlled by this Court's recent ruling in Posey v. State Workmen's Compensation Commissioner, W.Va., 201 S.E.2d 102 (1973):

'A claimant is permanently and totally disabled under our workmen's compensation statute when he is unable to perform any remunerative work in a field of work for which he is suited by experience or training.' Id., part syllabus point 3.

Nevertheless, without disputing that the claimant is totally disabled and is, as well, entitled to the life award, the Commissioner asserts that the Board was plainly wrong in its determination that claimant's current injury entitled him to a permanent partial disability rating of 50% For compensable injury to his back. According to the Commissioner, the Board was wrong because the claimant had previously received statutory compensation and a previous permanent partial disability rating of 25% For a similar 1948 back injury and the Board failed to deduct the previous award from the current rating.

On the other hand, the Board ruled that it was compelled by this Court's decision in Ball v. Workmen's Compensation Commissioner, W.Va., 194 S.E.2d 229 (1973), which interpreted Code 1931, 23--4--9b, as amended in 1947 and effective until 1971, to ignore the previous back injury in affixing the degree of permanent partial disability attributable to the current or second injury.

The Commissioner and the appellee assert that the Board has misread the Ball rule and has misapplied the statutory formula regarding an allocation of the Percentage of disability as between a current injury and a...