dissenting:
The majority’s opinion purports to clarify our previous decision in Mitchell v. State Workmen’s Compensation Commission*315er, 163 W.Va. 107, 256 S.E.2d 1 (1979). If this is a clarification, “Obscurity is what I have need of now.” 1 The rule of law that we establish today is blatantly inequitable. If a claimant’s temporary disability benefits are cut off improperly, that claimant has a right to receive back payments once his claim is vindicated. If, on the other hand, an employer is forced to pay temporary benefits that are ultimately found to be improper, that employer has no right to collect overpayments he has already made. Orwell was right. Although all animals are equal, it would appear that some are more equal than others.
The majority opinion goes to some length to explain the origins of our present statutory scheme. At one time, if an employer protested temporary benefits those benefits were not awarded until the dispute was settled. Because this approach placed a real burden on disabled workers the legislature enacted a scheme under which the employer would have to pay benefits during the time of a dispute with the understanding that he would receive back any money that was ultimately found to be an overpayment. That legislative enactment was both humane and reasonable. Employers as a group are in a far better position to bear the temporary burden of making payments while a dispute concerning the cause or extent of injury is adjudicated. It is a perversion of that scheme, however, to deprive employers of over-payments permanently simply because they are in a better position to bear temporary strains on cash flow.
The majority opinion contorts the statutory language to reach a result that defies common sense. They claim that an employer who does not protest an initial award of temporary total disability is es-topped from lodging an effective protest of subsequent extensions of that award. Although this is done in the name of administrative efficiency, its real effect will be to require employers to file an initial protest in all cases in order to reserve their rights when improper extensions are granted. If a claimant who is injured on his job receives a temporary total disability award for a period of thirty days, his employer may have no quarrel with that award. However, if the claimant continually seeks and obtains extensions of payment under that award, serious questions may arise in the mind of the employer concerning whether the worker actually remains injured and whether the source of that continued injury is work-related.
The majority would respond that such an employer can only proceed by means of a petition to modify under W. Va. Code 23-5-1(c) [1939]. Therefore, the employer is not entitled to any evidentiary hearing and if he should receive a favorable ruling from the Commissioner, the claimant would still have an opportunity to request an evidentiary hearing before that ruling would take effect. The majority goes still further in saying that the Commissioner was without authority to require the claimant to pay back benefits he had received after failing to comply with the letter requiring him to appear at a hearing.
The absurdity of this scheme is hard to overstate. An employer who correctly believes that a claimant no longer has a valid claim has no right to get a hearing on this matter despite the fact that he never agreed that payments should be for the extended period in the first place. If the Commissioner rules in the employer’s favor without benefit of a hearing, the employer has no right to terminate payments that were adjudged improper until the claimant is heard on the matter. If the claimant chooses not to attend scheduled hearings, the employer remains without remedy. In other words, claimants have a positive incentive to delay the process because their dilatory actions will put money in their pockets.
Apparently, the majority hinges all of these bizarre results on the distinction drawn in Mitchell, supra between employer’s objections that are “jurisdictional” and those which are “medical.” If those talis-manic legal terms are meant to be explanatory, I confess to continued confusion. The majority states that most initial juris*316dictional claims question whether the injury is work-related. It should be noted that some initial protests also go to the very existence of an injury. The Commissioner does not have jurisdiction to give awards in cases where the injury was not work-related; but she also, strangely enough, lacks jurisdiction where there was no injury. Thus, the distinction drawn in Mitchell, supra, 163 W.Va. at 124-126, 256 S.E.2d at 12-13 between “jurisdictional” and “medical” issues is specious. It is quite possible that an employer who agrees with the temporary award of thirty days total disability believes that the Commissioner is not properly empowered to grant an additional sixty days of total disability, either because there is no longer any injury or because the injury currently complained of is not work-related.
Furthermore, the majority opinion ignores the plain meaning of the statutory language. W.Va.Code 23-4-l(c) [1973] states in relevant part:
In the event that an employer files a timely objection to any finding or order of the Commissioner, as provided in section 1 [§ 23-5-1], article five of this chapter, with respect to the payment or continued payment of temporary total disability benefits, ..., the Commissioner shall continue to pay to the claimant such benefits and expenses during the period of such disability unless it is subsequently found by the Commissioner that the claimant was not entitled to receive the temporary total disability benefits ... in which event the Commissioner shall, for the Employer as a subscriber to the Fund credit same Employer’s account with the amount of the overpayment; and, where the employer has elected to carry his own risk, the Commissioner shall refund to such Employer the amount of the overpayment_[emphasis added].
The legislature has recognized that employers who have no objection to an original award may have a just complaint about the continuation of payments beyond the original temporary disability award. Although the majority opinion creates the illusion that there is a great deal of complexity in the statutory scheme, there is in fact a very simple principle at the heart of it. If there is a dispute regarding the validity of a claim, the claimant should receive benefits until that dispute is resolved. If it is ultimately determined that his award was excessive, the employer should recover the amount of the overpayment. Whether the overpayment is the result of an initially excessive award or of improper extensions of temporary disability benefits is not, and should not be, of any legal significance. The legislature has spoken clearly and intelligently. This court should not interfere with their judgment.
It is not entirely beside the point to remark that this scheme hardly provides employers a cornucopia since most workers have a hard time finding the money when pay-back time comes. This is occasionally known in the more arcane legal literature as the “blood and stone” principle.
I agree with the majority that every effort should be made to streamline the workers’ compensation system’s procedures so that claimants can receive the funds they need. I do not believe we advance that goal, however, by requiring employers to make spurious claims in order to reserve their rights to make proper ones later. Claimants who use delays in the system to collect overpayments that are not refundable to employers place a strain on the system that is not contemplated in the statutory scheme.
It makes economic and human sense to require employers to make workers’ compensation payments while the propriety of the claim is being established. It does not make sense and is not fair to require them to forego money that was paid out in excess of the proper claim because the system required them to make those payments. When a government imposes unreasonable burdens on commercial entities it runs the risk of driving away employment opportunities for its citizens. I must respectfully dissent.
. Robert Bolt, A Man for all Seasons Act 2, Scene 1, p. 53 (1960).