Griffith v. State Workmen's Compensation Com'r

• Decision Date: 21 May 1974
• Docket Number: No. 13437,13437
• Citation: 157 W.Va. 837,205 S.E.2d 157
• Court: West Virginia Supreme Court
• Parties: Herbert A. GRIFFITH v. STATE WORKMEN'S COMPENSATION COMMISSIONER and United States Steel Corporation.

Page 157

205 S.E.2d 157

157 W.Va. 837

Herbert A. GRIFFITH v. STATE WORKMEN'S COMPENSATION COMMISSIONER and United States Steel Corporation.

No. 13437.

Supreme Court of Appeals of West Virginia.

May 21, 1974.

Syllabus by the Court

1. The determination of disability awards is the duty and responsibility of the Workmen's Compensation Commissioner.

2. The degree of disability resulting from a 'second injury' to a previously impaired workman should be determined as if the injury had been inflicted upon an unimpaired workman.

3. '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.' Syllabus point 10., Gillispie v. Workmen's Compensation Commissioner, W.Va. (205 S.E.2d 164) (1974).

4. A proper application of the statutory method allocating charges for life awards under the 'second injury' provision of West Virginia Code, chapter 23, article 3, section 1, as amended, results in the employer being charged with no more not less than the percentage of disability attributable to the current injury or disease.

5. Where the sole issue remaining to be litigated in a claimant's case deals with the chargeability of an undisputed compensation award as between the employer and Workmen's Compensation Fund, the claimant should be promptly dismissed as a party so that he can receive benefits from the award without delay.

Campbell, Love, Woodroe & Kizer, George W. S. Grove, Jr., Charleston, for appellant.

J. Thomas Lane, Legal Div., Workmen's Compensation, Charleston, for State Workmen's Compensation Commissioner.

HADEN, Justice:

This is an appeal by United States Steel Corporation from an order of the Workmen's Compensation Appeal Board affirming a previous order of the Workmen's Compensation Commissioner which had granted the claimant Griffith a life award under the second injury provision of West Virginia Code, chapter 23, article 3, section 1, as amended. In this case the claimant first was found to be 40% Impaired in his capacity to work due to occupational pneumoconiosis which, when considered in light of previous disabilities totalling 63%, resulted in a further determination by the Commissioner of claimant's entitlement to a lifetime award of total permanent disability compensation.

Proof offered at hearings conducted by the Appeal Board, the Occupational Pneumoconiosis Board and the Commissioner, established that prior to filing his current claim for occupational pneumoconiosis, Herbert A. Griffith had suffered work-related injuries during his life resulting in permanent partial disability awards totalling 38%. In addition, Mr. Griffith had suffered another definitely ascertainable impairment, unrelated to employment, which was evaluated as a 25% Permanent partial disability. Accordingly, claimant was 63% Disabled before consideration of his current claim for occupational pneumoconiosis.

No party to this appeal disputes that claimant is totally disabled nor that he is entitled to a life award of total disability compensation pursuant to the provisions of the second injury provision of the workmen's compensation statutes. In fact, the employer joined with the claimant in the motion to the Commissioner that the claimant be considered for the life award.

The employer's legal and factual contentions are limited to the question of proper charges allocable under the statute as between and against its own account and that of the second injury reserve fund. Consequently, the issue before the Court is whether the Appeal Board was correct in affirming the Commissioner's determination that the employer was chargeable for a 40% Permanent partial disability award made to the claimant for impairment due to occupational pneumoconiosis.

The disputed charge against the employer's account was based upon evidence developed originally before the Occupational Pneumoconiosis Board. There the claimant submitted to medically recognized tests of physical and lung capacity which demonstrated a significant impairment of his present capacity when compared with earlier medical studies of his respiratory system. A substantial concurrence of medical opinion testifying as to the results of these tests considered with the foreknowledge of claimant's prior physical condition provided the basis for the Commissioner's determination of 40% Impairment due to occupational pneumoconiosis. The three physicians comprising the Occupational Pneumoconiosis Board also unanimously recommended the 40% Award. Additionally, the testimony of two physicians offered on behalf of the claimant concurred in the finding of total disability and pulmonary impairment due to occupational pneumoconiosis. Dr. Ralph Jones, speaking on behalf of the employer, concurred in the above findings; but the substance of his testimony indicated a less severe impairment to pulmonary areas than the claimant's doctor had indicated. Dr. Jones, however, failed to rate the percentage of impairment due to occupational pneumoconiosis. Only Dr. Russel Kessel, an orthopedic physician testifying on behalf of the employer, arrived at a somewhat contrary conclusion which will be examined in our appraisal of the evidence.

Factually, the employer contends that the Commissioner's award of a 40% Permanent partial disability for occupational pneumoconiosis is not supported by the Evidence and should be reversed as plainly wrong. We reject that contention as having no merit. The only evidence directly contradicting the Commissioner's determination of the 40% Permanent partial disability is a medico-legal conclusion of Dr. Kessel, best summarized in passages from his own report under date of May 24, 1972:

'(T)his employee of the United States Steel Corporation who is now said to be unable to work has been awarded a 40% Permanent partial disability by the Workmen's Compensation Fund for pneumoconiosis. This examiner assumes that this is a proper award, and is not professionally capable of making a determination of the extent of pneumoconiosis or of a recommendation as to the amount of permanent partial disability that may be produced in this claimant by the condition. He assumes that the forty (40) per cent is a legitimate award.

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'The disability is in my opinion such that qualifies the claimant for total permanent disability under the Second Injury statute . . ..'

Further, after classifying and reviewing all previous injuries, compensable and noncompensable suffered by the claimant, the doctor concludes:

'This would total sixty-three (63) per cent permanent partial disability. Therefore, in the Second Injury statute he would be entitled to twenty-two (22) per cent permanent partial disability in his award for pneumoconiosis.'

The foregoing conclusory statement of the physician represents not a medical rating of disability, but rather, an interpretation of West Virginia Code, chapter 23, article 3, section 1, as amended. Although the physician conceded that he was professionally unqualified to evaluate claims for occupational pneumoconiosis, he then proceeded to make a legal evaluation, computing and assigning an award of pneumoconiosis, based upon his understanding of the statute in question.

Forebearing to comment upon the physician's legal expertise, we simply reaffirm that the determination of disability awards is the duty and responsibility of the Workmen's Compensation Commissioner. Sisk v. Workmen's Compensation Commissioner, 153 W.Va. 461, 170 S.E.2d 20 (1969); Stewart v. Workmen's Compensation Commissioner, W.Va., 186 S.E.2d 700 (1972). An order of the Workmen's Compensation Appeal Board affirming the finding of the Workmen's Compensation Commissioner will not be reversed on appeal unless it is clearly wrong. Pannell v. Workmen's Compensation Commissioner, 126 W.Va. 725, 30 S.E.2d 129 (1944); Prince v. Workmen's Compensation Commissioner, 123 W.Va. 67, 13 S.E.2d 396 (1941); Vento v. Workmen's Compensation Commissioner, 130 W.Va. 577, 44 S.E.2d 626 (1938). '(It) will not as a general rule be set aside if there is substantial evidence and circumstances to support it.' McGeary v. State Compensation Director, 148 W.Va. 436, 439, 135 S.E.2d 345, 348 (1964).

Leaving the factual question, the employer alternatively argues the primary issue--the legal method of allocating charges to the employer under the second injury provision of the Code. Reading statutes in Pari materia, the employer contends that, as an injured workman reaches total permanent disability within the meaning of West Virginia Code, chapter 23, article 4, section 6, as amended, when he has been determined by the Commissioner to be 85% Partially disabled, where the evidence demonstrates a claimant to be 63% Disabled from definitely ascertainable prior impairments, his employer should be chargeable on the final disabling injury for no more than the 22% Additional disability necessary to satisfy minimum requirement for a total disability rating and a life award. The employer argues that this method of computation and allocation of charges should be used by the Commissioner even though the actual disability rating for the current and final 'second injury' is a larger numerical figure. For example: determining, as we have, that 40% Disability is correctly attributable to claimant's impairment for pneumoconiosis, the employer says it should be chargeable only for the numerical percentage necessary to reach 85% Permanent partial, the statutory equivalent of total disability.

The argument has surface merit and apparent support in the prior administrative practice of...