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Bergmann v. L W Drywall

Supreme Court of Virginia
Jun 12, 1981
222 Va. 30 (Va. 1981)

Summary

In Bergmann v. L W Drywall, 222 Va. 30, 278 S.E.2d 801 (1981), the claimant strained his back at work, disabling him from performing his duties as a drywall hanger.

Summary of this case from Smith v. Fieldcrest Mill

Opinion

44126 Record No. 801267.

June 12, 1981

Present: All the Justices.

When two rules of law — one regarding the claimant's burden of proof, and one regarding a disability with two causes — are confused by the Commission, the parties should have the opportunity to present additional evidence and arguments.

Workman's Compensation — Burden of Proof — When Disability has Two Causes.

The Employee strained his back as he stepped down from a workbench. This disability prevented him from fully performing his work. Following his injury, employee was afflicted with a non-occupational neurological disorder. Medical evidence indicated that the neurological disability was caused by both his injury and the non-job-related illness. In the 14 July 1980 decision from which the employee appeals, the Commission dismissed the employee's claim for reinstatement of benefits stating that "where the claimant's disability is related to two causes, one of which is compensable and the other of which is not, the compensation may not be awarded".

Two rules of law, separately applicable, are here involved. (1) Claimant must prove his case by a preponderance of the evidence. If the evidence shows it is just as probable that the disability resulted from a cause which is not compensable, as it is that it resulted from one which is compensable, the claimant has not sustained his burden of proof. (2) Where a disability has two causes: one related to the employment and one unrelated, when it is proven that the employment is a contributing factor to the disability, full benefits will be allowed. It is unclear from the opinion of the Commission whether it held the claimant's continuing disability was not work-related or if it erroneously denied him benefits for a disability that had both a work-related and a personal cause. The parties should have the opportunity to present additional evidence and arguments.

Appeal from an award of the Industrial Commission of Virginia.

Reversed and remanded.

John H. Klein (Breit, Rutter Montagna, on briefs), for appellant.

Robert G. Winters (White, Reynolds, Smith Winters, on brief), for appellees.


Dave G. Bergmann (claimant) appeals from the July 14, 1980 decision of the Industrial Commission which dismissed his claim for compensation benefits under the Virginia Workmen's Compensation Act.

Bergmann was injured on October 21, 1978, while in the employ of L W Drywall (employer). As Bergmann stepped down from a workbench, he suffered a lumbosacral strain to his back. This disability prevented Bergmann from performing the heavy physical labor required of a dry wall hanger. Following this injury, Bergmann was afflicted with a non-occupational neurological disorder diagnosed as a probable mild atypical post infectious neuritis.

On March 12, 1979, the Commission entered an award approving a memorandum agreement between claimant, the employer, and its carrier, Selected Risks Insurance Company. This award provided for payment of compensation at the rate of $187.00 per week, beginning October 27, 1978, and continuing for the duration of claimant's incapacity.

On May 18, 1979, the employer applied for a hearing before the Commission, alleging that the claimant could not be located. This hearing was conducted in the absence of the claimant on July 25, 1979. One of the commissioners suspended compensation, effective April 15, 1979.

Subsequently, the claimant applied for reinstatement of the weekly compensation. A hearing was held before a deputy commissioner, and on January 30, 1980, he reinstated benefits effective November 6, 1979.

The carrier sought review of the January opinion, and the case was heard by the full Commission. In its opinion of April 15, 1980, the Commission vacated the award of January 30, 1980, and remanded the case to the hearing docket for additional medical evidence regarding the claimant's work capacity.

The additional medical evidence consisted of a report by claimant's neurologist dated June 18, 1980, and a report dated May 30, 1980, by an orthopedist selected by the carrier to examine the claimant. The neurologist reported that the claimant suffered from a neurological disability caused by both his injury and the non-job-related illness. The orthopedist concluded that the claimant did not have an orthopedic disability.

In an opinion dated July 14, 1980, the Commission dismissed Bergmann's claim and denied further benefits, stating that "where the claimant's disability is related to two causes, one of which is compensable and the other of which is not, the compensation may not be awarded." As support for this rule, the Commission cited Southall, Adm'r. v. Reams, Inc., 198 Va. 545, 95 S.E.2d 145 (1956), and Virginia Electric and Power Co. v. Quann, 197 Va. 9, 87 S.E.2d 624 (1955).

The Commission, in deciding this case, confused two rules of law, combining them into one erroneous statement. The cases cited by the Commission stand for the proposition that a claimant must prove his case by a preponderance of the evidence. Southall, 198 Va. at 548-49, 95 S.E.2d at 147-48; Quann, 197 Va. at 15-16, 87 S.E.2d at 627-28. "If the evidence shows that it is just as probable that the disability resulted from a cause which is not compensable, as it is that it resulted from one which is compensable, the claimant has not sustained the burden of proof." Southall, 198 Va. at 548-49, 95 S.E.2d at 147-48. See also Carter v. Hercules Powder Co., 182 Va. 282, 288, 28 S.E.2d 736, 738 (1944), and A. N. Campbell Co. v. Messenger, 171 Va. 374, 379, 199 S.E. 511, 514 (1938).

The second rule refers to the case where a disability has two causes: one related to the employment and one unrelated. When it is proven that the employment is a contributing factor to the disability, full benefits will be allowed. 1.A. Larson Workmen's Compensation, Sec. 7.40 (1978).

In the instant case, it is unclear whether the Commission held that Bergmann's continuing disability was not work-related, or if it erroneously denied him benefits for a disability that had both a work-related and a personal cause. Given the confusion, we are of opinion that the parties should have the opportunity to present additional evidence and arguments.

Therefore, the case will be reversed and remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.


Summaries of

Bergmann v. L W Drywall

Supreme Court of Virginia
Jun 12, 1981
222 Va. 30 (Va. 1981)

In Bergmann v. L W Drywall, 222 Va. 30, 278 S.E.2d 801 (1981), the claimant strained his back at work, disabling him from performing his duties as a drywall hanger.

Summary of this case from Smith v. Fieldcrest Mill
Case details for

Bergmann v. L W Drywall

Case Details

Full title:DAVE G. BERGMANN v. L W DRYWALL AND SELECTED RISKS INSURANCE COMPANY

Court:Supreme Court of Virginia

Date published: Jun 12, 1981

Citations

222 Va. 30 (Va. 1981)
278 S.E.2d 801

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