Mitchell v. State Workmen's Compensation Com'r

• Decision Date: 22 May 1979
• Docket Number: No. 14400,14400
• Citation: 163 W.Va. 107,256 S.E.2d 1
• Court: West Virginia Supreme Court
• Parties: Roger MITCHELL v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Southern Appalachian Coal Company.

Page 1

256 S.E.2d 1

163 W.Va. 107

Roger MITCHELL v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Southern Appalachian Coal Company.

No. 14400.

Supreme Court of Appeals of West Virginia.

May 22, 1979.

Concurring Opinion July 13, 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.

2. Under W.Va.Code, 23-5-1, the West Virginia Workmen's Compensation Commissioner has broad powers in making, refusing or modifying awards. These actions are taken without the necessity of advance evidentiary hearings, but are based upon credible evidence furnished the Commissioner through his reporting forms, information supplied by the parties and independent medical evaluations ordered by the Commissioner under W.Va.Code, 23-4-8.

3. W.Va.Code, 23-5-1c, permits an employer, upon an application containing credible evidence, to request the Commissioner to terminate temporary total disability benefits. Under this section, evidentiary hearings are not required to be held by the Commissioner until an order terminating the benefits is entered and timely objection to the order has been made. However, procedural due process standards mandate that the Commissioner give the claimant advance notification of the reasons why his temporary total disability benefits are being considered for termination and a reasonable opportunity to supply relevant information on the issue, except where the claimant has voluntarily returned to work.

4. The overpayment provisions of W.Va.Code, 23-4-1c, apply only where the Commissioner determines in a W.Va.Code, 23-5-1, proceeding, that the claimant was not lawfully entitled to the temporary total disability benefits originally by virtue of the fact that the claim did not jurisdictionally qualify.

5. 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.

George G. Burnette, Jr., Charleston, for appellant.

Love, Wise, Robinson & Woodroe, Joseph S. Beeson and M. Ann Bradley, Charleston, for appellee.

Michael T. Clifford and John E. Dorsey, Charleston, for SWCC.

MILLER, Justice:

This appeal by the claimant, Roger Mitchell, is from an adverse decision of the Workmen's Compensation Appeal Board which upheld the Workmen's Compensation Commissioner's order terminating the claimant's temporary total disability benefits as of August 30, 1976. Several questions are raised concerning the administrative procedures of the Workmen's Compensation Commissioner in the termination of temporary total disability awards.

Specifically, the following points are considered: (1) the Commissioner's authority to permit an employer to protest continuation of temporary total disability benefits where a timely protest was not made to the original award under W.Va.Code, 23-5-1; (2) the Commissioner's authority to terminate temporary total disability benefits without according the parties an evidentiary hearing; and (3) the effect of the 1976 amendments to W.Va.Code, 23-4-1c, in regard to overpayment of temporary total disability benefits.

A brief statement of the history of the claim is necessary in order to focus on the legal issues. The claimant sustained a low back injury on May 26, 1976, in the course of and resulting from his employment. He began medical treatment for the injury with a Dr. Bautista on the same day.

On July 14, 1976, the Commissioner held the claim compensable and awarded the claimant temporary total disability benefits. On July 27, 1976, Dr. Bautista advised the Commissioner that the claimant had reached maximum degree of improvement and requested that the claimant be evaluated for permanent partial disability. The doctor received no reply from the Commissioner and, on October 7, 1976, sent a letter to the claimant's employer in which he disclosed that he had given the claimant additional therapy and stated that the claimant had reached maximum degree of improvement as of August 30, 1976.

On September 22, 1976, the claimant had contacted the Workmen's Compensation Commissioner, advising that Dr. Bautista had indicated he could do nothing more for his condition and requesting a transfer to another doctor. The Commissioner approved the request and referred the claimant to a Dr. Hills, who first examined him in November, 1976. Dr. Hills reported to the Commissioner that he was starting the claimant on a therapy program, although he was somewhat skeptical of its effectiveness.

On November 2, 1976, the employer protested the continuation of temporary total disability benefits and urged the Commissioner to terminate the benefits as of August 30, 1976, the date on which Dr. Bautista stated claimant had reached maximum degree of improvement.

With the claim now under protest, the Commissioner continued to pay temporary total disability benefits pursuant to W.Va.Code, 23-4-1c. The claimant received treatment from Dr. Hills until September 26, 1977, when he was released to return to work. In February of 1977, Dr. Hills had requested an independent evaluation of the claimant, and he was eventually referred to a Dr. Seltzer in October 1977, who reported claimant had reached maximum degree of improvement and recommended a 5 percent permanent partial disability award.

The last hearing on the protest to the temporary total disability benefits was held in January, 1978, and the Commissioner, by order entered February 20, 1978, terminated the claimant's benefits as of August 30, 1976. In a divided opinion, the Appeal Board affirmed the Commissioner's order in November, 1978.

I THE MEANING OF TEMPORARY TOTAL DISABILITY

We begin by observing that there is no statutory definition of the term "temporary total disability." By case law we have indicated that temporary total disability continues until the claimant reaches maximum degree of improvement, as stated in Perry v. State Workmen's Compensation Commissioner, 152 W.Va. 602, 607, 165 S.E.2d 609, 612 (1969) "(I)t was the intention of the legislature with regard to disability that an injured workman should be paid on what is denominated total temporary disability for the period of time necessary for him to reach maximum degree of improvement when he would be examined and given a permanent partial disability or a total permanent disability award. . . ."

Much the same language can be found in Dunlap v. State Workmen's Compensation Commissioner, W.Va., 232 S.E.2d 343, 344 (1977), and Dickerson v. State Workmen's Compensation Commissioner, 154 W.Va. 7, 11, 173 S.E.2d 388, 391 (1970).

In Dunlap, we noted that there was no "specific language that relates return to work as affecting total temporary disability benefits." 232 S.E.2d at 345. There, we found that a claimant receiving temporary total disability benefits who attempted to return to work did not lose resumption of the benefits when he was unable to continue working.

In 2 A. Larson, The Law of Workmen's Compensation (1976) § 57.10, at 10-5 10-8, we find this general statement in regard to classification of disability benefits:

"In the traditional four-way classification of disabilities, (1) temporary total, (2) temporary partial, (3) permanent partial, and (4) permanent total, the relative prominence of the two factors is markedly different. Temporary total (although the majority of claims are in this group) and temporary partial occasion relatively little controversy, since they are ordinarily established by direct evidence of actual wage loss. In the usual industrial injury situation, there is a period of healing and complete wage loss, during which, subject to any applicable waiting period, temporary total is payable. This is followed by a recovery, or stabilization of the condition, and probably resumption of work, and no complex questions arise. Permanent partial schedule awards, by contrast, are based on medical condition after maximum improvement has been reached, and ignore wage loss entirely. Fixed payments for loss of specified members are due even if the claimant during the period is back at work at higher wages than before. . . ."

Historically, the Commissioner in his award of temporary total disability benefits has notified the parties that temporary total disability benefits will continue "until he [the worker] has been certified for employment or until further proper order of the Commissioner . . . ." ¹ From a practical standpoint, the terms "reaching maximum degree of improvement" and "being certified for employment" have rather similar, although not identical, meanings. As noted in Larson, Supra, the period of "temporary total disability" usually extends through the recovery process. At the end of the recovery or healing process, maximum degree of improvement is reached, and the claimant is then certified to return to work. ²

In this sense, the two terms are quite synonymous, and most courts use the terms rather interchangeably. See, e.g., Douglass v. Gresen Manufacturing Co., 300 Minn. 82, 217 N.W.2d 846 (1974); McAlear v. Arthur G. McKee & Co., 558 P.2d 1134 (Mont.1976); Inserra v. Village Inn Pancake House, 197 Neb. 168, 247 N.W.2d 625 (1976). An obvious exception is where the claimant, by reason of the severity of the residual disabilities from his injuries, is permanently and totally disabled and thus unable to return to work. In this situation, he As a general rule, we conclude that 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...