Wilson v. Lewis

• Decision Date: 19 December 1980
• Docket Number: No. 15059,15059
• Parties: Russell WILSON v. Gretchen O. LEWIS, Commissioner, West Virginia Workmen's Compensation Fund.
• Court: West Virginia Supreme Court

Page 96

273 S.E.2d 96

166 W.Va. 273

Russell WILSON v. Gretchen O. LEWIS, Commissioner, West Virginia Workmen's Compensation Fund.

No. 15059.

Supreme Court of Appeals of West Virginia.

Dec. 19, 1980.

Syllabus by the Court

The Workmen's Compensation Commissioner has the authority under W.Va.Code 23-4-9 to require a claimant to undergo physical and vocational rehabilitation after the case has been submitted for final decision on the extent of the claimant's permanent partial disability, but such authority exists only where there is substantial evidence in the record demonstrating that the claimant can be physically and vocationally rehabilitated and returned to remunerative employment.

Masters & Taylor and Marvin W. Masters, Charleston, for petitioner.

Frank W. Helvey, Jr., Charleston, for respondent.

PER CURIAM:

In this original mandamus proceeding the relator, Russell Wilson, prays for an order commanding the respondent, the State Workmen's Compensation Commissioner, to immediately enter an order granting him a permanent disability award, or, in the alternative, awarding him temporary total disability benefits from the date such benefits were terminated to the present.

The exhibits filed in support of the petition for a writ of mandamus indicate that relator suffered an occupational injury on May 1, 1975. Upon relator's timely application for benefits, the Workmen's Compensation Commissioner held the claim compensable and temporary total disability benefits were awarded by order dated July 9, 1975. The relator continued to receive temporary total disability benefits until September 5, 1978, when the Commissioner entered an order granting him a 25% permanent partial disability award. During the period when the relator was receiving temporary total disability benefits, he underwent surgical operations for his occupational injury and was hospitalized on several different occasions, the last being at a mental hospital.

The relator timely protested the award of the 25% permanent partial disability and a hearing was held on June 19, 1979. At the hearing the relator presented the testimony of two doctors and a vocational expert. The employer made no appearance and offered no evidence. Although the tape recording of this hearing was inadvertently erased, the reports of three doctors and a vocational expert were entered into evidence by agreement of the parties and the case was submitted for decision. Dr. Joseph P. Seltzer, M.D., was of the opinion that relator was totally and permanently disabled. Dr. Richard D. Kitching, M.D., now deceased, filed an extensive report concluding that relator was not a person capable of doing sustained gainful work and that he was not a good candidate for vocational rehabilitation. He also concluded that relator seemed "to be disabled on an organic basis alone sufficiently to be considered totally disabled". The third doctor's report, while not offering any opinion on the extent of the relator's disability, indicates relator was hospitalized for a psychosis. The vocational expert's report indicates the relator is a former laborer who has little use of his hands as measured by dexterity tests and general observation. The expert concluded that relator is totally disabled. He noted that the relator is left-handed and that the occupational injury was to his neck, left shoulder and left arm.

Upon consideration of the entire record, the Commissioner by order of January 8, 1980, set aside the prior order granting a 25% permanent partial disability award and ordered that the relator be referred to a physician for psychiatric treatment pursuant to the physical rehabilitation provisions of W.Va.Code, 23-4-9. The order further provided that the claimant was to be paid temporary disability benefits but conditioned payment upon relator's continued total disability and the receipt of reports describing the nature of the psychiatric treatment and the prognosis. Although the relator received psychiatric treatment on at least two occasions and such fact was communicated to the Commissioner by the treating psychiatrist, the relator received no temporary total disability benefits after January 8, 1980, when the Commissioner referred the relator for psychiatric treatment and prognosis. In May, June, and July of 1980, relator's counsel by letter requests moved the Commissioner to grant him a permanent disability award or temporary total disability benefits, but the Commissioner failed to respond in any manner.

The respondent Commissioner quite properly agrees that the delay in responding to relator's motions has been unreasonable and has assured this Court of a prompt ruling upon a decision by this Court. Consequently, the Commissioner does not resist the issuance of a writ of mandamus directing it to rule on relator's motion. The Commissioner does insist, however, that the relator is not entitled to any specific ruling on his motions, and that she has the power on her own motion to make a referral for rehabilitation under W.Va.Code, 23-4-9. Although we agree that the Commissioner has the power to make a referral on her own motion under W.Va.Code, 23-4-9, and thereby defer a ruling on the extent of the permanent disability, we are of the opinion that the Commissioner did not have the power to make the psychiatric referral in the circumstances of this case.

W.Va.Code, 23-4-9 provides in pertinent part:

In cases where an employee has sustained a permanent disability, or has sustained injuries likely to result in permanent disability, and such fact has been determined by the Commissioner, and the employee can be physically and vocationally rehabilitated and returned to remunerative employment by vocational training, by the use of crutches, artificial limbs, or other approved mechanical appliances, or by...