Smith v. Workers' Compensation Commissioner

373 S.E.2d 495, 179 W. Va. 782, 1988 W. Va. LEXIS 120
CourtWest Virginia Supreme Court
DecidedSeptember 16, 1988
DocketNos. 18328, 18292
StatusPublished
Cited by5 cases

This text of 373 S.E.2d 495 (Smith 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
Smith v. Workers' Compensation Commissioner, 373 S.E.2d 495, 179 W. Va. 782, 1988 W. Va. LEXIS 120 (W. Va. 1988).

Opinion

MILLER, Justice:

We have consolidated two workers’ compensation appeals for the resolution of a common legal issue involving whether the second injury fund statute, W.Va.Code, 23-3-1,1 can be invoked by a claimant to obtain a permanent total disability award where no additional disability has been proven in the current claim.

This issue arose in the following general procedural context. In both these cases, the claimants had previously filed occupational pneumoconiosis claims and were given permanent partial disability awards. They continued working after filing these claims and filed new occupational pneumo-coniosis claims based upon their additional exposure, but were unable to establish any additional pulmonary impairment above that which had been awarded in the prior claims. During the proceedings before the Commissioner, the claimants moved for a life award under the second injury fund statute based upon the combined effects of several prior injuries and their occupational pneumoconiosis.

The Commissioner and Appeal Board interpreted the second injury fund statute as requiring a claimant to prove some degree of additional permanent partial disability in his current claim in order to qualify for a life award and, therefore, denied the motions in both claims. Concluding that this interpretation is legally erroneous, we reverse and remand with directions.

I.

PROCEDURAL HISTORY

Charlie Smith, Sr.

The claimant, Charlie Smith, Sr., began working in the coal mining industry in 1947 and worked in that type of employment until September, 1980. During this period, he suffered numerous occupational injuries. He filed claims for these injuries, but generally neither sought nor was granted any permanent disability awards, though he did receive a 12 percent permanent partial disability award in Kentucky for an injury to his right foot in 1974. He also filed an occupational pneumoconiosis application in 1972 and was granted a 30 percent permanent partial disability award. The last payment on this award was mailed to the claimant in December, 1976.

In September, 1980, the claimant filed a new occupational pneumoconiosis claim. The claim was held compensable, a finding of additional exposure to the hazards of occupational pneumoconiosis was made, and the claimant was examined by the Occupational Pneumoconiosis Board in January, 1982, which found no additional pulmonary impairment. The claimant protested this determination. At a subsequent pro[784]*784test hearing, the claimant testified concerning his age, education, experience, and pri- or injuries. Counsel for the claimant also introduced medical and vocational reports indicating that the claimant was permanently and totally disabled from the combined effects of his previous injuries and occupational pneumoconiosis.

At the last protest hearing in October, 1985, the claimant, by counsel, moved that he be granted a permanent total disability award under the second injury fund statute with no additional charges to the employer’s account. In the alternative, counsel made a motion that the claimant’s 1980 occupational pneumoconiosis claim be treated as a petition to reopen his 1972 occupational pneumoconiosis claim in which he had been granted a 30 percent permanent partial disability award.

In March, 1986, the Commissioner affirmed the prior ruling which held that the claimant had not established any additional disability. The Commissioner also denied the claimant’s motion for a permanent total disability award under the second injury fund statute. The claimant appealed, and the Appeal Board affirmed the Commissioner’s ruling by order of November 4, 1987.

The Appeal Board concluded that a claimant cannot be permanently and totally disabled within the meaning of the second injury fund statute, W.Va.Code, 23-3-1, if “there has been no ... second injury to combine with a previous injury or injuries.” It reasoned that since the claimant had not established any additional disability in his current occupational pneumoconiosis claim, a permanent total disability award under the second injury fund statute could not be made.

The Appeal Board found that the claimant had chosen to file a new claim for occupational pneumoconiosis pursuant to Ford v. State Workmen’s Compensation Comm’r, 160 W.Va. 629, 236 S.E.2d 234 (1977),2 rather than to petition to reopen his 1972 occupational pneumoconiosis claim. The Appeal Board, therefore, concluded that the claimant by way of his 1985 motion at a protest hearing could not now have his 1980 occupational pneumoconiosis application treated as a petition to reopen his 1972 occupational pneumoconiosis claim. The Appeal Board also found that the time limitations governing the reopening of claims contained in W.Va.Code, 23-4-16, now prohibited further consideration of the 1972 occupational pneumoconiosis claim or any prior injuries.3

Paul D. Lightfoot

Paul D. Lightfoot was employed by Eastern Associated Coal Corporation from July, 1965, until May, 1983. In 1960, while working for another employer, he suffered a compression fracture and was placed in a body cast for six months. In 1965, he suffered a severe injury to his right leg in a slate fall which culminated in the amputation of his leg about six inches below the knee. After recovering from this injury, he was fitted with a prosthesis and returned to work. His employer created a job for him as a bit sharpener, which he performed at a bench utilizing a power grinder. The claimant was ultimately granted a 48 percent permanent partial disability award for this leg injury.

[785]*785During the course of his work as a bit sharpener, the claimant was exposed to silicone dust from the grinding wheel. Pri- or to his layoff in 1983 due to a reduction in force, the claimant filed at least three occupational pneumoconiosis claims based upon this exposure and in connection with a 1974 claim was awarded a statutory 5 percent permanent partial disability award for occupational pneumoconiosis without pulmonary impairment which was paid in a lump sum in April, 1980.

The claimant filed a new application for occupational pneumoconiosis benefits in November, 1984. The Commissioner in May, 1985 found this claim had been timely filed and that the claimant had met the exposure requirements, and referred the claimant to the Occupational Pneumoconio-sis Board. The Board examined the claimant and concluded that he had no additional impairment over the 5 percent previously awarded in the 1974 claim.

The claimant protested the Board’s findings, and at a hearing in October, 1986, the claimant by counsel submitted medical and vocational reports indicating that he was permanently and totally disabled. Records relating to the claimant’s prior orthopedic injuries and his occupational pneumoconio-sis claims were also introduced into evidence. The claimant then moved for a permanent total disability award under the second injury fund statute based upon the combined effects of his prior injuries and his occupational pneumoconiosis.

The Commissioner denied the motion for a second injury life award, and the Appeal Board affirmed.

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Bluebook (online)
373 S.E.2d 495, 179 W. Va. 782, 1988 W. Va. LEXIS 120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-workers-compensation-commissioner-wva-1988.