160 W. Va. 664 | W. Va. | 1977
This appeal came on to be heard on the final decision and order of the Workmen’s Compensation Appeal Board entered September 29, 1976, affirming the order of the State Workmen’s Compensation Commissioner entered September 19, 1975, denying an award of workmen’s compensation to claimant, John E. Charlton, and upon the entire record as presented to the Court on the appeal.
Claimant’s initial application, filed September 17, 1971, was based on a complaint that he had “worked in coal treatment water for considerable lengths of time, shoes and feet were soaking wet, skin peeled off and became ulcerated (ulcers)”. The Commissioner’s ruling of December 15, 1971, denied the claim, holding that the disability was not due to an occupational disease received in the course of and resulting from employment. Claimant described his disability as “ulcerated feet”, developing primarily from standing and working in mine water “treated with magnetite and sulphuric acid, and also contained grease, oil, kerosene and stuff.” His work continued for five or six months during which time his feet “got all infected and messed up” — wrinkled and peeled and became infected. He underwent medical treatment for eleven months and returned to the same work for about one month when he quit, June 26, 1970, because he could not stand on his feet or wear shoes. On protest
Many years ago the Court reversed a compensation ruling with directions that the Commissioner fix a percentage of disability in a Buerger’s Disease case. Hall v. Compensation Commissioner, 110 W. Va. 551, 159 S.E. 516 (1931). In the Hall case, the Court stated in the single syllabus point:
“The fact that an employee, injured in performing services arising out of and incidental to his employment, was already afflicted with a progressive disease that might some day have produced physical disability, is no reason why the employee should not be allowed compensation, under Workmen’s Compensation Act, for the injury, which, added to the disease, superinduced physical disability.”
Eleven years later, in another Buerger’s Disease case, Manning v. State Compensation Commissioner, 124 W. Va. 620, 22 S.E.2d 299 (1942), the Court again held in syllabus point three:
“A diseased workman who in the course of and resulting from his employment receives an injury, which aggravates or accelerates the disease, to the extent of causing a disability sooner than would otherwise have occurred, is entitled to compensation from Workmen’s Compensation Fund.”
Upon careful consideration of the record as presented, the decision of the Appeal Board, dated September 29, 1976, affirming the Commissioner’s order of September 19, 1975, denying an award of compensation to claimant, John E. Charlton, is reversed and this cause is remanded to the State Workmen’s Compensation Commissioner with directions for further development, through medical and administrative expertise, as a basis for such workmen’s compensation award found to be appropriate. It is further ordered that the Court’s ruling be certified to the Appeal Board and to the Compensation Commissioner pursuant to provisions of W. Va. Code, 23-5-4.
Reversed and remanded with directions.
Dr. Kuhn’s deposition was taken at her home in Florida on April 28, 1975. In her deposition she states her specialty is dermatology and that, on August 31, 1973, she had seen claimant, John E. Charlton, at her office in Charleston, West Virginia, at the instance of the Workmen’s Compensation Commissioner. The written report of her examination, dated September 6, 1973, is a part of the record. In her report she recommended that claimant “should be evaluated by a competent vascular specialist.” In her deposition she affirms that claimant had Buerger’s Disease, not an occupational disease, that he had “massive damage to his skin and subcutaneous tissue probably precipitated by the conditions under which he worked at Semet-Solvay.”