147 W. Va. 11 | W. Va. | 1962
Lead Opinion
The employer, Winding Gulf Coals, Inc., has appealed from the order of the Workmen’s Compensation Appeal Board, dated July 10, 1961, granting claimant, Anthony S. Garges, an award for silicosis in the first stage, and reversing the order of the Workmen’s Compensation Commissioner of February 24, 1961, whereby the commissioner had denied such award “on the grounds that the claimant’s exposure to the hazard of silicon dioxide while in the employ of Winding Gulf Coals, Inc., was not sufficient to perceptibly aggravate an existing silicosis.” This Court granted an appeal on October 2, 1961.
On August 18, 1959, claimant filed with the commissioner his claim for benefits for silicosis alleging that he had “been exposed to Silicon Dioxide Dust while doing work in the State of West Virginia approximately 27 years”, and that his most recent employer was the Winding Gulf Coals, Inc.
The record shows that claimant was employed by Winding Gulf Coals, Inc., as coal loader, brakeman and motorman in its mines from February 7, 1957, to September 19, 1958, or a period of approximately nineteen and a half months. Prior to that he had been employed by the New River Company intermittently for approximately twenty-eight years, as follows: April, 1955, to November, 1956, as a machine man, motorman, coal loader, trackman, wirer, rock driller and brakeman; August, 1947, to August, 1953, as a motorman, brakeman and coal loader; and from April, 1928, to May, 1947, as a motorman, brakeman and coal loader.
The commissioner on October 16, 1959, made a non-medical finding that claimant had been exposed to the hazard
The employer filed timely objections to those findings and various hearings were held, at which additional and earlier X-raji" films were introduced. One of those films was made on September 24, 1951, by the Raleigh County Tuberculosis Association. There was also an X-ray film made at the Cleveland Clinic on March 2,1951, and these two 1951 films, which were not available to the Silicosis Medical Board when it made its report on February 12, 1960, were compared at the hearings with the board’s film made on February 11, 1960, and the three doctors comprising the board saw: “No difference in the markings or nodules at all.” Dr. E. W. Squire, a witness for the employer, testified that he “saw no changes at all in the films”, and “I saw no progression or increase in the nodules.” It also appears from the testimony that the film made on September 24, 1951, by the Raleigh County Tuberculosis Association and the board’s film of 1960 were of “good quality.”
Based on the X-ray film evidence alone, the conclusion
There were other films of claimant’s chest taken in 1954, 1955, and at a preemployment examination on February 2, 1957, and also one in 1959, but they all showed the same condition of silicosis, “nodular markings”, but no discernible change since 1951.
Following these hearings the commissioner entered his order of February 24, 1961, finding that there had been no perceptible aggravation of an existing silicosis while claimant was in the employ of Winding Gulf Coals, Inc., and rejecting claimant’s application for silicosis benefits.
Claimant appealed to the appeal board, which, on July 10, 1961, reversed the commissioner and granted claimant an award for first stage silicosis.
From the evidence in the file we believe there can be no question that claimant was afflicted with silicosis in the first stage as early as 1951 and that, from the X-ray films before the commissioner, the only evidence adduced on the issue of aggravation, there had been no progression, aggravation or change shown in claimant’s silicotic condition between 1951 and 1960; and, therefore, claimant has failed to show perceptible aggravation within the statutory period.
We believe this case is governed by the principles of law enunciated in the case of Turner v. State Compensation Commissioner, et al., decided on January 30, 1962, at the present term of court, which presents a factual situation somewhat analogous to the instant case. In the Turner case this Court held that the applicable statutes require a claimant, suffering from a preexisting silicosis in the first stage, to show a perceptible aggravation of such condition within the statutory period to entitle him to the statutory benefits therefor. That decision does not rule out the possibility of evidence other than X-rays, but where X-rays are available,
Reversed and remanded.
Concurrence Opinion
concurring:
I concur in the results announced by the Court for the reasons stated in the concurring opinion filed in the case of Turner v. State Compensation Commissioner and New River and Pocahontas Consolidated Coal Company, decided this term, 147 W. Va. 1, 123 S. E. 2d 880.
I am authorized to say that Judge Berry joins in this memorandum.