Javins v. Workers' Compensation Commissioner

320 S.E.2d 119, 173 W. Va. 747
CourtWest Virginia Supreme Court
DecidedJuly 20, 1984
Docket16156 through 16178 and 16185
StatusPublished
Cited by27 cases

This text of 320 S.E.2d 119 (Javins v. Workers' 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
Javins v. Workers' Compensation Commissioner, 320 S.E.2d 119, 173 W. Va. 747 (W. Va. 1984).

Opinions

McGRAW, Justice:

This consolidated appeal involves twenty-four separate occupational pneumoconiosis claims originally submitted to the Workers’ Compensation Commissioner for disability awards. The claimants now appeal from orders of the Workers’ Compensation Appeal Board, presenting two issues for this Court. First, whether the Workers’ Compensation Appeal Board failed to properly evaluate the medical evidence under the correct legal standards in its disability determinations. Second, whether the Workers’ Compensation Appeal Board erred by splitting the difference between initial findings or awards and subsequent findings or awards. Finally, whether the claimants are liable for benefits received pending final disposition of protests when their initial awards were subsequently reduced. Because we are remanding each of these claims to the Commissioner, the issue of overpayment need not be addressed. In order to give some perspective to our discussion of the legal issues presented, we will first describe the status of each claimant.

I.

In all twenty-four of these cases, there exists a similar pattern of events. After the Commissioner’s initial nonmedical ruling in each claim that the claimant met the statutory exposure criteria, the Occupational Pneumoconiosis Board submitted findings and recommendations based upon its own examinations and consideration of other medical evidence to the Commissioner. The Commissioner then made an award in accordance with these findings and recommendations. A protest to this award was subsequently made, usually by the employer. Following these protests, additional test results were submitted for consideration. Faced with conflicting medical evidence in each case, usually in the form of either ventilatory studies or blood gas studies, the Occupational Pneumoconiosis Board favored evidence in each case which indicated the lowest degree of pulmonary impairment under the theory that due to the irreversible and progressive nature of the disease, such evidence is a more reliable indicator of the claimant’s maximum level of pulmonary function. Consequently, evidence indicating a higher degree of impairment was attributed by the Board to factors other than occupational pneumoco-niosis.

In accordance with the Board’s second set of recommendations, the Commissioner then entered a new order either modifying or affirming her initial award.1 Each claimant subsequently appealed. On December 13, 1983, the Workers’ Compensation Appeal Board issued separate but remarkably similar orders in each of these claims. In each case, the Appeal Board apparently calculated the claimant’s award by splitting the difference between the Commissioner’s initial award and subsequent reduced award, or between the Board’s interpretation of test results which [751]*751indicated a high degree of impairment and results indicating a low degree of impairment.

Benefits were paid to each claimant based upon the initial award in each case, and continued during the protest period. The Commissioner’s second order and the Appeal Board decisions have resulted in many of these claimants being deemed overpaid. The Commissioner is currently seeking reimbursement from these claimants under West Virginia Code § 23-4-ld (1981 Replacement Vol.).

Cue D. Javins filed an application for occupational pneumoconiosis compensation on April 8, 1980. The claimant had been continuously employed by Armco, Inc. at Montcoal, West Virginia for almost sixteen years. Prior to that he had been periodically employed by the same company at various locations in the state since 1950. Resting ear oxymetry tests were performed in September 1981. Based upon these tests, the Occupational Pneumoconiosis Board recommended and the Commissioner granted a 10% award. Following his employer’s protest, new tests were performed which indicated normal pulmonary function. The Occupational Pneumoconiosis Board then changed its opinion, stating that the claimant had pneumoconiosis with no measurable pulmonary impairment. Therefore, the Commissioner set aside the prior 10% award and granted the claimant a 5% permanent partial disability award.2 Whereupon, the claimant appealed and the Appeal Board reversed the Commissioner’s order and awarded 7%.

C. Harvey Hill had previously been granted a 5% award. In March 1980, he filed a new application. At the time the application was filed, the claimant had been employed by the Hampton Division of Westmoreland Coal Company for over twenty years. The Occupational Pneumo-coniosis Board found that ear oxymetry tests indicated a 10% disability. Therefore, in November 1981, the Commissioner ordered that the claimant be granted an additional 5% award above that already awarded. Following an employer protest, new ear oxymetry results were admitted into evidence which were within normal limits. In addition, two sets of blood gas studies were admitted, one offered by the claimant and one by the employer. Members of the Board testified that based upon these new test results, their recommendation was that no additional award beyond the original 5% disability in the previous claim be granted. Accordingly, the Commissioner set aside the November 1981 award and denied any award on this claim. Following the claimant’s appeal, the Appeal Board reversed and ordered that an additional 2% disability be entered.

Ronnie E. Britton worked in Bald Knob, West Virginia for Eastern Associated Coal Corporation from May 1969 through March 1981. Prior to that he had been periodically employed by the other colliery in the state since 1967. The claimant filed a pneumoconiosis disability claim on May 5, 1981. Based upon pulmonary function studies performed at the Charleston Area Medical Center, the Occupational Pneumo-coniosis Board found that the claimant had pneumoconiosis with a 25% impairment. Therefore, the Commissioner granted a 25% award. The employer protested, and the claimant was retested at the Charleston Area Medical Center. The Board found that the new results indicated only a 20% impairment. The Commissioner then set aside her previous order and granted a new award based upon 20% disability. On appeal, the Appeal Board reversed the Commissioner and awarded 22% permanent disability.

Carl E. Keeney was employed by Big Mountain Coals, Inc. from October 28, 1970, and was still working at the time his application for disability was filed on February 4, 1980. Prior to that date, he had worked for two other companies since 1960, one in West Virginia and the other in Texas. Based upon its own examination and tests, and blood gas studies performed at [752]*752the Appalachian Pulmonary Laboratory in Beckley offered by the claimant, the Occupational Pneumoconiosis Board made a finding that the claimant had pneumoconio-sis with a 15% impairment. At a protest hearing conducted on July 28, 1982, the employer offered results of blood gas studies obtained at the Charleston Area Medical Center. At this hearing, the claimant offered additional blood gas studies performed at the Appalachian Pulmonary Laboratory. The Board indicated that the studies offered by the employer showed that gas exchange was within normal limits and found that the claimant had pneumoco-niosis, but with no impairment. The Commissioner then set aside the prior 15% award, and granted a 5% award for pneu-moconiosis without impairment. On appeal, the Appeal Board reversed, and ordered a 9% award.

Charles T. Lewis has been retired since March 1977. In 1976, he was examined by the Occupational Pneumoconiosis Board and was found to have pneumoconiosis with a 20% impairment of pulmonary function.

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Bluebook (online)
320 S.E.2d 119, 173 W. Va. 747, Counsel Stack Legal Research, https://law.counselstack.com/opinion/javins-v-workers-compensation-commissioner-wva-1984.