Javins v. Workers' Compensation Commissioner , 173 W. Va. 747 ( 1984 )

NEELY, Justice,

dissenting:

I dissent to the majority opinion in these consolidated cases on the grounds that the majority opinion in Syllabus Point 3 has made a travesty of the fact-finding function of the Workers’ Compensation Commissioner and the Appeal Board. By. requiring either the Commissioner or the Appeal Board to find specifically that testimony introduced by a claimant is “unreliable, incorrect, or clearly attributable to some other identifiable disease or illness,” this Court has now said that it will dispense with even the appearance of even-handed justice.

The majority opinion takes the final step in the extension of the liberality rule. It is no longer sufficient for employers to prove their case by a preponderance of the evidence in the face of the added weight that the liberality order gives to the claimant’s case. It is now necessary for the employer, after proving his own case, to disprove the claimant’s case! I have never been very enthusiastic about the statutory scheme for adjudicating workers’ compensation claims and I expressed those reservations in Persiani v. S.W.C.C., 162 W.Va. 230, 248 S.E.2d 844 (1978). Nonetheless, until the Legislature changes our procedures I would prefer not to make a joke out of the process. I stand, therefore, upon the liberal, but not entirely absurd rules concerning proof of occupational pneumo-coniosis claims set forth in Persiani, supra, and for that reason dissent.