Wilson v. Workers' Compensation Com'r

• Decision Date: 29 March 1984
• Docket Number: 16005 and 15993,Nos. 15990,s. 15990
• Citation: Wilson v. Workers' Compensation Com'r, 328 S.E.2d 485, 174 W.Va. 611 (W. Va. 1984)
• Court: West Virginia Supreme Court
• Parties: Richard L. WILSON v. WORKERS' COMPENSATION COMMISSIONER and Bethlehem Mines Corp. Karen L. COOK v. WORKERS' COMPENSATION COMMISSIONER and Bethlehem Mines Corp. Grant JEFFREY v. WORKERS' COMPENSATION COMMISSIONER and Buffalo Mining Co.

Page 485

328 S.E.2d 485

174 W.Va. 611

Richard L. WILSON v. WORKERS' COMPENSATION COMMISSIONER and Bethlehem Mines Corp.

Karen L. COOK v. WORKERS' COMPENSATION COMMISSIONER and Bethlehem Mines Corp.

Grant JEFFREY v. WORKERS' COMPENSATION COMMISSIONER and Buffalo Mining Co.

Nos. 15990, 16005 and 15993.

Supreme Court of Appeals of West Virginia.

March 29, 1984.

[174 W.Va. 612] Syllabus by the Court

1. "For purposes of obtaining a reopening of a Workmen's Compensation claim under the provisions of W.Va.Code, 23-5-1a and-1b, the claimant must show a prima facie cause, which means nothing more than any evidence which would tend to justify, but not to compel the inference that there has been a progression or aggravation of the former injury." Syllabus, Harper v. State Workmen's Compensation Commissioner, 160 W.Va. 364, 234 S.E.2d 779 (1977).

2. Where a claimant's temporary total disability payments have been terminated and he desires to have them reinstated under W.Va.Code, 23-5-1a and-1b, such reinstatement must be based upon new facts showing an aggravation or progression of the injury or other facts not theretofore considered.

3. An employer's initial decision not to contest the original jurisdictional basis of an award of temporary total disability does not preclude the employer from contesting a subsequent application to reopen for temporary total disability benefits under W.Va.Code, 23-5-1a, on the ground that the aggravation or progression is not related to the original injury.

4. If a worker's compensation claimant shows that he received an initial injury which arose out of and in the course of his employment, then every normal consequence that flows from the injury likewise arises out of the employment. If, however, a subsequent aggravation of the initial injury arises from an independent intervening cause not attributable to the claimant's customary activity in light of his condition, then such aggravation is not compensable.

Timothy G. Leach, Charleston, for appellants in Nos. 15990, 16005 and 15993.

John L. McClaugherty and Thomas J. Hurney, Jr., Jackson, Kelly, Holt and O'Farrell, Charleston, for appellees in Nos. 15990 and 16005.

George L. Partain, Valentine, Wilson & Partain, Logan, for appellee in No. 15993.

MILLER, Justice:

We have consolidated these three workers' compensation appeals as they contain a similar legal issue. Each of these appeals involves questions surrounding the termination of additional temporary total disability benefits. Each claimant filed an application for modification to obtain additional temporary total disability benefits. The Commissioner awarded the additional temporary total disability benefits. The employers objected to the awards and, after hearings, the temporary total disability benefits were deemed to have been improperly awarded and repayment of the benefits was ordered under W.Va.Code, 23-4-1c.

The claimants contend that the Commissioner is barred from collecting overpayments of temporary total disability benefits by virtue of Mitchell v. State Workmen's Compensation Commissioner, 163 W.Va. 107, 256 S.E.2d 1 (1979), because the employer did not protest the initial compensability of the claim within thirty days of its original filing. We disagree and conclude that a reopening should be treated as a new step in the proceeding where resumption of temporary total disability benefits is sought.

It is clear that under W.Va.Code, 23-5-1a (1939), an injured claimant is entitled to petition the Commissioner to make further adjustments of his claim. ¹ The evidentiary standard for obtaining a reopening is set out in W.Va.Code, 23-5-1b, which we summarized in the single Syllabus of Harper v. State Workmen's Compensation Commissioner, 160 W.Va. 364, 234 S.E.2d 779 (1977):

"For purposes of obtaining a reopening of a Workmen's Compensation claim under the provisions of W.Va.Code, 23-5-1a and -1b, the claimant must show a prima facie cause, which means nothing more than any evidence which would tend to justify, but not to compel the inference that there has been a progression or aggravation of the former injury."

The issue of whether there is a progression or aggravation of a claimant's original injury turns upon facts which arise after the initial compensable injury. The inquiry is whether these new facts give rise to a condition that can be connected to the original injury.

In Harper, the question was whether a subsequent psychiatric disability was related to the claimant's original compensable injury. There is a plethora of cases dealing with the question of what subsequent conditions can be treated as progressions or aggravations of the original injury. See A. Larson, 1 Larson's Workmen's Compensation Law § 13.10, et seq. (1982).

We stated in Mitchell that the repayment of temporary total disability benefits provisions of W.Va.Code, 23-4-1c, were not applicable unless there has been an initial protest to the original award of temporary total disability benefits. The reason for this rule is that W.Va.Code, 23-4-1c, provides for repayment only if the claimant is found to be not lawfully entitled to the benefits. We pointed out in Syllabus Point 4 of Mitchell ² that a claimant is not lawfully entitled to temporary total disability benefits when his claim does not jurisdictionally qualify--such as when the injury did not arise out of and in the course of employment. ³

The important point is that Mitchell's requirement for a timely protest to the original temporary total disability award in order to obtain the benefits of W.Va.Code, 23-4-1c, is predicated on the fact that the employer will ordinarily know if the initial claim is jurisdictionally defective. On an initial injury the chief inquiry is whether the injury happened in the course of and arising out of the employment. Since the facts surrounding the injury are fairly concise and involve the employer's workplace, he is assumed to have knowledge of them or at least a readily available means of acquiring such knowledge.

For this reason, we held in Mitchell that if the employer wished to defeat the jurisdictional basis, he had to file a timely protest under W.Va.Code, 23-5-1. If he did not desire to defeat the claim jurisdictionally but only contest continued payment of temporary total disability benefits, he could then file a petition to modify under W.Va.Code, 23-5-1c.

However, where a claimant's temporary total disability payments have been terminated and he desires to have them reinstated, such reinstatement must be based upon new facts showing an aggravation or progression of the injury or other facts not theretofore considered. W.Va.Code, 23-5-1a and-1b; Syllabus Point 2, Buckalew v. State Compensation Director, 149 W.Va. 239, 140 S.E.2d 453 (1965). Obviously, such new facts are not something that the employer could have anticipated when the original claim was filed. It is this inability to anticipate the circumstances upon which a claimant may base his application to reopen that forecloses the application of Mitchell to reopening petitions under W.Va.Code, 23-5-1a.

Consequently, we conclude that an employer's initial decision not to contest the original jurisdictional basis of an award of temporary total disability does not preclude the employer from contesting a subsequent application to reopen for temporary total disability benefits under W.Va.Code, 23-5-1a, on the ground that the aggravation or progression is not related to the original injury. ⁴

With these principles in mind, we turn to the individual cases.

I. THE CLAIM OF RICHARD L. WILSON

On January 24, 1977, the claimant sustained a low back injury while shoveling coal in the course of and as a result of his employment with Bethlehem Mines Corporation. The claimant filed a claim for workers' compensation benefits, and the claim was ruled compensable on February 23, 1977. The employer did not protest the compensability ruling, and the benefits were paid. The claimant subsequently returned to work on March 9, 1977, and worked approximately twenty-one months.

On January 2, 1979, Dr. C.Y. Amores wrote the Commissioner and stated that the claimant had been in his office on December 29, 1978, complaining of low back pain. Dr. Amores said the claimant had stated that he had suffered pain off and on since his January 24, 1977 injury and that on December 25, 1978, after playing with his child on the floor, he could hardly get up because of low back pain.

On January 15, 1979, Dr. Amores again wrote the Commissioner and stated that the claimant had objective signs of a back injury and recommended that the claimant be admitted to the hospital for a myelogram and for treatment. After receiving Dr. Amores' letter, the Commissioner authorized Dr. Amores to undertake conservative treatment of the claimant and reinstated the payment of temporary total disability benefits.

The employer protested the payment of all temporary total disability benefits and medical benefits after December 22, 1978. The claimant, however, continued to receive temporary total disability benefits until he returned to work on March 19, 1979.

Protest hearings were held, and the claimant testified that after he returned to work from his injury of January 24, 1977, he worked continuously until December 22, 1978. He stated that on the last day he worked, December 22, 1978, he reinjured his back while he was working on a machine in the course of his employment. He stated that he did not report the injury to anyone at that time. He also testified that three days later, December 25, 1978, after playing with his child, he was unable to get up from the floor of his home. He subsequently went to Dr. Amores and as a result of his visit, temporary total disability benefits were reinstated.

Dr. Amores testified that when he first examined the claimant on December 29, 1978, the claimant told him he had originally injured his back while shoveling coal at work on January 24, 1977,...