Dunlap v. State Workmen's Compensation Commissioner

232 S.E.2d 343, 160 W. Va. 58, 1977 W. Va. LEXIS 222
CourtWest Virginia Supreme Court
DecidedFebruary 15, 1977
DocketNo. 13782
StatusPublished
Cited by18 cases

This text of 232 S.E.2d 343 (Dunlap v. State Workmen's Compensation Commissioner) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunlap v. State Workmen's Compensation Commissioner, 232 S.E.2d 343, 160 W. Va. 58, 1977 W. Va. LEXIS 222 (W. Va. 1977).

Opinion

Miller, Justice:

In this Workmen’s Compensation case, we consider whether an attempt to return to work by a claimant receiving temporary total disability benefits should result in a termination of those benefits. The Commission[59]*59er and the Appeal Board hold that it does. We disagree and reverse.

On March 23, 1974, claimant was working for Trojan Steel Company and received an injury while pulling iron rods. He initially was seen by Dr. Shepherd with complaints of pain in his neck, shoulder and left arm. He was treated and when his condition did not improve he was referred to Dr. Caudill, an orthopedic surgeon, who diagnosed the problem in the neck as an intervertebral disk injury and consequently operated and removed the disk at C-6.

Claimant was awarded temporary total disability benefits. On August 21, 1974, he secured employment with the Alcohol Beverage Control Commission and advised his former employer, Trojan Steel, of this fact on August 23. His work with the Alcohol Beverage Control Commission basically involved operating a fork lift truck. Claimant testified that he ceased working on Sep-temer 6, 1974, because he was experiencing pain in his left arm, shoulder and also in the low back.

Trojan Steel filed a protest with the Commissioner on the basis that temporary total disability benefits should have been terminated on the date that the claimant began his employment with the Alcohol Beverage Control Commission. Several administrative hearings were held in connection with the employer’s protest and claimant was examined under oath and testified that at no time during his work with the Alcohol Beverage Control Commission did he have any accident or injury.

Testimony was also taken from Drs. Shepherd and Caudill, both of whom had had occasion to examine the claimant after he ceased employment with the Alcohol Beverage Control Commission. Each of these doctors indicated that the claimant still had residual disability arising from the cervical disk injury and also found that claimant did have a lumbosacral strain.

In the course of their examination of the claimant each of the doctors had obtained a brief history on the [60]*60claimant as to the circumstances surrounding what had occasioned the low back injury. The status of the record in this regard is at best unclear since neither doctor took a detailed history from the claimant. It does appear, however, that the claimant, in relating how his back complaints had initially occurred, made reference to the fact that it happened while at work pulling steel rods.

At the hearings, under questioning by the employer’s lawyers as to whether or not the lumbosacral strain could be related to the initial accident in March, 1974, both doctors expressed some doubt as to being able to medically relate the low back symptoms to the March accident.

It appears that the basis for their indecision rests on the fact that their records did not show that after the March accident the claimant had any complaints involving the low back area.

The Commissioner ruled that temporary total disability benefits subsequent to August 21, 1974, the date when the claimant had started to work for the Alcohol Beverage Control Commission, be stopped and the claim be closed on a temporary total disability basis. The Appeal Board affirmed the Commissioner’s ruling and in a written opinion stated that the Commissioner was correct in stopping temporary total disability benefits, and that while the record was not clear, it appeared that the claimant had received a second injury involving the low back while employed at the Alcohol Beverage Control Commission.

It is apparent from the record that the claimant ceased work with the Alcohol Beverage Control Commission because he felt physically unable to continue working. Medical reports of his condition- after he stopped working indicate that he still had considerable residual disability from the initial injury.

The threshold question, which neither the Commissioner nor the Appeal Board appears to have considered [61]*61in any detail, is whether an attempt to return to work bars further receipt of temporary total disability benefits. We can find no case in which this point appears to have been directly decided by this Court. In Perry v. State Workmen’s Compensation Commissioner, 152 W. Va. 602, 165 S.E.2d 609 (1969), this Court stated it was the purpose of the Workmen’s Compensation law to provide temporary total disability benefits to an injured workman for the period of time necessary for him to reach the maximum degree of improvement, at which point he should then be rated for a permanent disability award. See also, Dickerson v. State Workmen’s Compensation Commissioner, 154 W. Va. 7, 173 S.E.2d 388 (1970).

In reviewing the Workmen’s Compensation Act, we do not find any specific language that relates return to work as affecting total temporary disability benefits. Under the provisions of W. Va. Code, 23-4-6(b), once a finding of temporary total disability is made the injured employee “... shall receive during the continuance thereof weekly benefits as follows: ...” Under subdivision (c) of this same section, which sets out the maximum allowable award for temporary total disability, it is stated that “... [an] aggregate award for a single injury causing temporary disability shall be for a period not exceeding two hundred eight weeks.”

Certainly, the words “during the continuance thereof’ and “aggregate award” suggest the conclusion that temporary total disability need not be limited to a continuous period of disability. Indeed, a valid social policy can be served by encouraging an injured employee on temporary total disability to attempt to return to work.

If he is able to work his period of disability is diminished. He is restored to his former wage level and becomes once again a contributing member of the work force. His employer gains in diminished compensation exposure. It would run counter to such desirable ends if we were to rule that the employee must bear the risk of loss of his temporary total disability benefits if he at[62]*62tempts to return to work and then has to stop working because his medical condition has not improved to the point where he can handle his job. Such a negative rule would dictate that no injured employee would attempt to return to work, unless he were absolutely certain he could do the job.

There are several statutory safeguards built into the Workmen’s Compensation Act which would prevent the abuse of such suggested rule. First there is a maximum statutory limit on temporary total disability benefits arising out of a single injury, which is currently 208 weeks. W. Va. Code, 23-4-6(c). Secondly the Commissioner does have continuing jurisdiction over the cases and may make such modifications or changes to findings or orders as may be justified. W. Va. Code, 23-4-16. Finally, the Commissioner has the authority whenever in his opinion it shall be necessary to order a claimant to appear before a medical examiner. W. Va. Code, 23-4-8. These statutory provisions should enable the Commissioner to determine if the claimant’s cessation of work, after having returned to work while on temporary total disability status, is a result of the original industrial accident.

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Dunlap v. STATE WORKMEN'S COMPENSATION COM'R
232 S.E.2d 343 (West Virginia Supreme Court, 1977)

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Bluebook (online)
232 S.E.2d 343, 160 W. Va. 58, 1977 W. Va. LEXIS 222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunlap-v-state-workmens-compensation-commissioner-wva-1977.