UMWA by Roberts v. Lewis

• Decision Date: 14 November 1983
• Docket Number: AFL-CIO,No. 15818,15818
• Citation: 172 W.Va. 560,309 S.E.2d 58
• Parties: UMWA, etc., by Cecil ROBERTS and Michael Burdiss, and WVLF,, by Joseph W. Powell v. Gretchen O. LEWIS, Commr., etc.
• Court: West Virginia Supreme Court

Page 58

309 S.E.2d 58

172 W.Va. 560

UMWA, etc., by Cecil ROBERTS and Michael Burdiss, and WVLF AFL-CIO, by Joseph W. Powell v. Gretchen O. LEWIS, Commr., etc.

No. 15818.

Supreme Court of Appeals of West Virginia.

Nov. 14, 1983.

[172 W.Va. 561] Syllabus by the Court

1. The Workers' Compensation Commissioner is required to issue an annual report on or about the 15th day of September of each year as required by W.Va.Code 23-1-17 [1974].

2. When a doctor reports to the Workers' Compensation Commissioner that a claimant who is receiving temporary total disability has reached his maximum degree of improvement but cannot return to work, the Commissioner cannot terminate temporary total disability benefits unless claimant's inability to return to work is either unrelated to his industrial accident or results from a permanent disability.

3. W.Va.Code 23-4-7a [1979] does not require the Commissioner, in all cases, to make a permanent partial disability award to eligible claimants within thirty days from the termination of temporary total disability.

4. W.Va.Code 23-2-9 [1976] vests in the Commissioner the determination of an employer's initial eligibility to self-insure under the Workers' Compensation Laws; but the Commissioner has a ministerial responsibility to terminate that privilege when claimants show the self-insurer is not meeting obligations to claimants.

5. The Commissioner must establish a procedure by which a claimant can institute an action to suspend or terminate an employer's status as a self-insurer, or to have a substantial fine, payable to the claimant, levied against the employer when a self-insurer[172 W.Va. 562] is not meeting obligations to claimants.

6. The legislature intended by the use of the words "and other expenses" in W.Va.Code 23-5-1 [1973] that employers reimburse claimants for their direct, out-of-pocket expenses incurred as a result of attending protest hearings initiated by the employer in cases where the claimant prevails; consequently, when an employer requires a claimant's doctor to appear at a protest hearing for the purpose of cross-examining the doctor, the expense of the claimant's doctor's appearance should be borne by the employer in cases where the claimant prevails.

Daniel F. Hedges, McIntyre, Haviland & Jordan and Terry M. Jordan and James M. Haviland, Charleston, for petitioners.

William Mitchell, Sp. Atty. Gen., Frank W. Helvey, Jr., Legal Div., Workers' Comp. Commr., Charleston, for respondent.

Jackson, Kelly, Holt & O'Farrell, John L. McClaugherty and Robert J. Busse, Charleston, amicus curiae for Contractors Ass'n of W.Va., W.Va. Chamber of Commerce, W.Va. Coal Ass'n, W.Va. Manufacturers Ass'n, and W.Va. Surface Mining and Reclamation Ass'n.

NEELY, Justice:

The United Mine Workers of America and the West Virginia Labor Federation have availed themselves of this court's willingness to "enlarge the scope of mandamus, especially where there is an urgent question of public policy or where there is an urgent question of public policy or where there is no reason for delay in adjudication of the issue by the highest State Court." Walls v. Miller, 162 W.Va. 563, 251 S.E.2d 491, 495 (1978). The petitioner unions seek a writ of mandamus to require the respondent Commissioner to perform her duties according to petitioners' interpretation of certain statutory requirements. Petitioners present five separate areas where they allege that the Commissioner's procedures are contrary to statutory mandates. ¹

I THE ANNUAL REPORT

The petitioners allege, and the Commissioner admits, that the Commissioner has failed to file her department's report as required by W.Va.Code 23-1-17 [1974] ² on or about the fifteenth day of September annually. The Commissioner points out that the period from 30 June until 15 September is the busiest season for her with regard to the revision of benefit rates, the recomputation of benefits and awards, the development of revised premium rates, the updating of reserve losses and other actuarial accounts, and accounting revisions in the operation of the disabled workers' relief fund and the coal workers' pneumoconiosis fund. She admits, however, that the statute is clear and unambiguous in its requirement that a report be completed on or about 15 September of each year and represents that steps are currently being taken to comply with the statute. We find that the Commissioner is required by Code 23-1-17 [1974] to issue her report on or about 15 September, and consequently, on this issue we hold that petitioners are entitled to mandamus relief.

II CONFLICT BETWEEN MAXIMUM DEGREE OF IMPROVEMENT AND ABILITY TO WORK

Petitioners assert that a claimant's treating physician often informs the Commissioner by medical report (WC-219) that the claimant has reached his maximum degree of improvement but is not yet authorized to return to work. This leads the Commissioner to terminate temporary total disability benefits. Thus, the claimant is unable to work but receives no compensation to offset his loss of income. In her answer, the Commissioner maintains that when such conflicting information is provided on form WC-219 her staff makes an independent evaluation of the entire case to determine whether the claimant should continue to receive temporary disability benefits.

We do not disapprove of the Commissioner's making an independent investigation to resolve the apparent conflict in the physician's answers on form WC-219. In fact, W.Va.Code 23-4-7a [1979] explicitly states that the Legislature believed it was necessary for the Commissioner to "operate a systematic program for the monitoring of injury claims where the disability continues longer than might ordinarily be expected." We do have reservations, however, about the Commissioner's approach to such cases. Petitioners allege, and the respondent does not deny, that the commissioner often allows findings of maximum recovery and continued inability to return to work to be held compatible.

This court noted in Mitchell v. State Workmens Compensation Commissioner, 163 W.Va. 107, 256 S.E.2d 1 (1979) that there was no statutory definition of the term "temporary total disability." Id.163 W.Va. at 110, 256 S.E.2d at 5. We went on to observe that historically the commissioner had notified parties that temporary total disability benefits would continue "until he [the worker] had been certified for employment or until further proper order of the Commissioner ...." Id.163 W.Va. at 112, 256 S.E. 2d. at 6. In an explanatory note, the court took notice of the commissioner's occasional use of the phrase "until he has returned to work or has been certified by his attending physician for employment." Id. at n. 1. Thus, the commissioner's own language suggests that the relevant medical opinion focuses on ability to work rather than abstract notions about maximum recovery.

In fleshing out the meaning of "temporary total disability" the court also looked to precedent from other jurisdictions. We observed that the term "reaching maximum degree of improvement" and "being certified for employment" were often used interchangeably by other state courts. Id. See, e.g. Douglass v. Gresen Manufacturing Co., 300 Minn. 82, 217 N.W.2d 846 (1974); McAlear v. Arthur G. McKee and Co., 171 Mont. 462, 558 P.2d 1134 (1976); Inserra v. Village Inn Pancake House, 197 Neb. 168, 247 N.W.2d 625 (1976). Thus, in view of both the common practice in this state and legal precedent from other jurisdictions it appears unlikely to this court that circumstances would arise often in which a claimant could be found to have reached "maximum degree of improvement" without "being certified for employment." ³

There are cases in which these seemingly contradictory findings are reconcilable. The claimant may in fact have a permanent disability that prevents his return to his regular employment. (See Section III). Alternatively, he may be unable to return to work for reasons unrelated to a compensable injury. In the absence of a specific finding on these matters, however, it confounds simple reason to find that workers' compensation does not compensate a disabled worker. We hold, therefore, that when a physician indicates that a claimant has reached his maximum degree of improvement but cannot yet return to work, the Commissioner shall continue temporary total disability benefits until either the claimant is released to return to work or it conclusively appears that the claimant's inability to return to work is the result of a permanent disability or of medical problems that are unrelated to the compensable injury.

III

THE HIATUS BETWEEN THE CESSATION OF TEMPORARY TOTAL

DISABILITY BENEFITS AND A PERMANENT PARTIAL DISABILITY AWARD

The petitioners contend that W.Va.Code, 23-4-7a [1979] demonstrates a clear intention that permanent partial disability benefits for an eligible claimant commence immediately upon the termination of temporary total disability benefits. In footnote 9 of Mitchell v. Compensation Commissioner, 163 W.Va.107, 256 S.E.2d 1,11 (1979) we said:

The goal of administrative economy and expeditious handling of claimants strongly suggests that the Commissioner might, in appropriate cases in which he terminates temporary total disability benefits, also make an award for any permanent disability benefits that may be due the claimant.... Claimants might be less inclined to protest termination of temporary total disability benefits if they received a contemporaneous permanent disability award. Certainly, the two issues are inextricably entwined from a medical standpoint, and if both issues are treated by the Commissioner in the same order or by contemporaneous ones, the parties' protests can be heard together. We see nothing in the Workmen's Compensation statutes which precludes the Commissioner from adopting this administrative approach.

W.Va.Code 23-4-7a(c) [1979] says, in pertinent part, that:

"[I]f the examining physician or physicians...