Mullins v. State Workmen's Compensation Commissioner and Robinson-Phillips Coal Co.

271 S.E.2d 771, 165 W. Va. 194, 1980 W. Va. LEXIS 592

• Court: West Virginia Supreme Court
• Decided: March 25, 1980
• Docket: No. 14629
• Status: Published

Opinions

Neely Chief Justice:

This case involves only one question: whether a 40% pneumoconiosis disability when combined with calcification of the lungs caused by an unknown source, entitles a claimant to a permanent total award where the claimant is 100% disabled from the combined effects. The Appeal Board was correct in finding that the claimant was fully compensated by his 40% permanent partial disability award.

Claimant, Harvey H. Mullins, initially filed an application for benefits in 1973; pursuant to his examination by the Occupational Pneumoconiosis Board he was granted a 40% award. In 1977, the claimant requested a reopening of his claim which was granted. Again the Occupational Pneumoconiosis Board found his disability to be 40%, but noted that the claimant had “marked pleural calcification and thickening of the pleural throughout the lower half of the left lung field and diaphragm....”

Upon protest, hearings were held and the Workmen’s Compensation Appeal Board affirmed the Commissioner’s determination that the claimant was entitled to only a 40% award, being the part of his total disability attributable to his employment. The Board reasoned that claimant has the burden of proving aggravation or progression of his injury when a case is reopened and the claimant failed to meet his burden.

The question we must decide is whether claimant is entitled to a permanent total disability award based upon the combined effects of a compensable injury and a disease. Our recent case of Boggs v. State Workmen’s Compensation Commissioner and Ranger Fuel Corp., 163 W.Va. 413, 256 S.E.2d 890 (1979) is dispositive. There we held that a claimant may not recover under either W.Va. Code, 23-4-9b [1971] or W.Va. Code 23-3-1 [1947] when the debilitating condition which is being added to a compensable injury is the result of a disease and not “a previous injury.”

The case before us is similar to Boggs in that claimant has a “definitely ascertainable physical impairment” under Code, 23-4-9b [1971]. However, as stated in Boggs, supra at 892:

[T]hat provision must be read in pari materia with the provision that the impairment be “caused by a previous injury” under W.Va. Code, 23-3-1 [1947]. This Court has consistently held that “such physical impairment must have been caused from an injury and not a disease unless such physical impairment was an occupational disease proved to have been proximately caused by ... employment.” Bannister v. State Workmen’s Compensation Commissioner, 154 W.Va. 172, 176, 174 S.E.2d 605, 607-08 (1970). See Huff v. State Workmen’s Compensation Commissioner, 157 W.Va. 530, 202 S.E.2d 383 (1974).

In the case before us there are no allegations that claimant’s calcification of the lungs was anything other than a diseased condition and the testimony showed that the calcification was not the result of occupational pneumoconiosis. There was no evidence that the calcification was the result of an accident or was work related. Workmen’s Compensation covers only occupational diseases; a disability resulting from the normal diseases of life was not intended to be compensated under our statute.

Affirmed.