160 W. Va. 549 | W. Va. | 1977
In his appeal from the final decision of the Workmen’s Compensation Appeal Board, affirming an order of the Workmen’s Compensation Commissioner denying him a compensation disability award, the claimant, Clyde B. Linville, contends that the Commissioner and Board erred in refusing to sustain his claim for a total perma
Claimant, age 53 years, married, with an adopted son and foster daughter at home, resides at Powellton, West Virginia. He relates in his testimony that he did not complete the fifth grade in school, that he began working in the mines in 1939, that he served in the United States Navy three and one-half years during World War II, and that he returned to the mines following his military discharge in January of 1946. His first reported mine injury was in 1956 — an injury to his left knee for which he received a 7 percent permanent partial disability award. In 1967 a second mine injury, to his right knee requiring surgery, resulted in another 7 percent permanent partial disability award. Another 1967 mine injury, a laceration above the left eye, was found to be compensable, but claimant lost no work time on account thereof and no percentage disability award was entered thereon. He was granted a 2 percent permanent partial disability award for an injury to his face and nose in 1971. In 1972 he was granted a 15 percent disability award for occupational pneumoconiosis. These compensation awards total 31 percent permanent partial disability.
While employed as a roof bolter by Hawks Nest Mining Company at its Doris Mine on March 27, 1972, claimant was injured in a rock fall resulting in a fracture of his back and right leg among other less significant injuries. He claims his left wrist was broken in this injury, but
On May 9, 1974, claimant was examined by Dr. Harold H. Kuhn who, after review of the injuries and lung condition, expressed the opinion in a written report that claimant was totally and permanently disabled. Among other impressions, Dr. Kuhn noted a left wrist deformity “likely due to an old fracture.” On written petition, the claim was reopened on June 21, 1974, and further examination of claimant and consideration of his claim were ordered. Dr. Jack Pushkin’s report of October 4, 1974, found no basis for increasing the 23 percent award for the recognized injuries in the March 27, 1972, accident, but would allow an additional 7 percent permanent partial disability award for the left wrist injury, identified by claimant with the March 27, 1972, accident, but not x-rayed or treated. By letter order of October 18, 1974, the Commissioner found claimant to have been fully compensated by the award of May 24, 1973, and refused any further award. By letter of October 24, 1974, counsel for claimant protested the Commissioner’s order of October 18, 1974, and a series of hearings on the reopened claim followed. At a hearing in Charleston, West Virginia, on April 22, 1975, claimant gave testimony as to his mine employment record and injuries, including the left wrist injury, and was cross-examined thereon. His testimony disclosed that in April of 1975, a few days before the hearing, he had been reemployed by Hawks Nest Mining Company in an outside communications job because of his seniority in mine work and despite his physical disabilities. A hearing at Pineville, West Virginia, on July 28, 1975, was continued because the witness, Dr. George
The Commissioner, by order of February 26, 1976, affirmed his prior ruling of October 18, 1974, “holding the claimant fully compensated.” While the order is brief, it is understood to mean that the prior award of 23 percent permanent partial disability on May 24, 1973 “fully compensated” claimant and that claims for additional disability for the left wrist injury and for total permanent disability were denied. Counsel for claimant timely filed his notice of appeal to the Appeal Board and the Board, by order of November 29, 1976, affirmed the Commissioner’s order of February 26, 1976. The Board’s opinion affirms its careful consideration of the record and the briefs of counsel and finds the Commissioner’s order was not in error. Claimant’s appeal to the Court was granted February 28, 2977, has been briefed by counsel for claimant and the employer, and has been submitted for decision.
Counsel for the parties are in substantial agreement on the issues which may be stated as follows:
“1. Whether the evidence establishes that the residuals of the left wrist fracture resulted from the claimant’s injury of March 27, 1972; and,
“2. Whether the evidence establishes claimant’s eligibility for total permanent disability benefits as contemplated by the provisions of W.Va. Code, 23-3-1; and, if so, what portion of the award is to be charged to the second injury reserve fund and what portion is to be charged to the employer.”
The general rule in workmen’s compensation cases is that the evidence will be construed liberally in favor of
“If an injured employee provides some evidence to demonstrate that a particular injury did arise from the subject industrial accident, absent evidence which to some degree of certainty attributes the injury to a cause other than the subject accident, it will be presumed to have resulted from such accident.”
The Commissioner’s ruling of February 26, 1976, affirmed his prior ruling of October 18, 1974, that claimant was fully compensated. The ruling did not review or comment on the record and evidence incident to the pending claim for a total and permanent disability award to claimant. The Appeal Board’s ruling of November 29, 1976, reviews claimant’s injury record and compensation awards but, without comment on the further developed evidence record, affirmed the Commissioner’s ruling.
The workmen’s compensation law is meaningful and significant and each workmen’s compensation claim is singularly important to the claimant. The present case involves a claim for total permanent disability. Claimant’s testimony in support thereof reviews his record and disabilities. The examination report of Dr. Kuhn and the examination report and testimony of Dr. Ford-
“The claimant’s right to permanent total disability rating cannot be defeated merely because he fortuitously returned to work after he was injured and received the same wages ....”
The Court, in point three of the syllabus in Posey v. State Workmen’s Compensation Commissioner, _ W. Va. _, 201 S.E.2d 102 (1973), holds that
“A claimant is permanently and totally disabled under our workmen’s compensation statute when he is unable to perform any remunerative work in a field of work for which he is suited by experience or training. Each case will be considered on the peculiar facts for the reason that what may be totally disabling to one person would only be slightly disabling to another of a different background and experience.”
“In 1970, the Legislature amended W. Va. Code, 23-4-6, by adding paragraph (1) thereto, providing as follows:
“A disability which renders the injured employee unable to engage in substantial gainful activity requiring skills or abilities comparable to those of any gainful activity in which he has previously engaged with some regularity and over a substantial period of time shall be considered in determining the issue of total disability.”
In Gillispie v. State Workmen’s Compensation Commissioner, _ W. Va. _, 205 S.E.2d 164 (1974), in syllabus point nine, the Court holds that
*557 “Awards for permanent total disability are to be ascertained by utilizing and aggregating all definitely ascertainable prior impairments to determine if the claimant is, at the minimum, 85% disabled to perform work in a field of employment for which he is suited by experience or training.”
Counsel for claimant and for the employer, in their briefs, invite attention to the allocation of compensation charges between the employer and the second injury reserve fund, in the event claimant is granted a total permanent disability award. W. Va. Code, 23-3-1. The Court, in point ten of the syllabus in Gillispie v. State Compensation Commissioner, supra, has held
“Once the Workmen’s Compensation Commissioner has made a determination that an injured workman is entitled to an award of total permanent disability, the claimant’s employer shall be chargeable only for the compensation payable for the current disability rating attributable to the ‘second injury’ and the employee shall thereafter be paid the remainder of the compensation that would be due for permanent total disability out of a special reserve of the surplus fund known as the second injury reserve.”
Upon careful review and consideration of the record in this claim, pursuant to provisions of W. Va. Code, 23-5-4a, the Court finds and concludes that the order and opinion of the Workmen’s Compensation Appeal Board are clearly wrong and that claimant is entitled to a 7 percent permanent partial disability award for the left wrist injury attributable to the March 27, 1972, accident when he was employed as a roof bolter by Hawks Nest Mining Company, and that, for the composite of all his injuries arising from industrial employment, claimant is entitled to a total permanent disability award. Accordingly, the order of the Workmen’s Compensation Appeal Board, dated November 29, 1976, affirming the order of the Workmen’s Compensation Commissioner, dated February 26, 1976, is reversed and this claim is remanded to the Commissioner for an award of permanent disability
Reversed and remanded with directions