152 W. Va. 602 | W. Va. | 1969
Claimant, George F. Perry, was injured June 13, 1960, when a jack slipped from under a shuttle car on which he was working, striking him on the left leg and throwing him to the ground, causing injury to both legs and back. Sometime later, as a result of the injury, a ruptured interverte-bral disc was removed. On November 27, 1963, claimant was awarded a 35% permanent partial disability. Subsequently, on December 23, 1964, upon a reopening of the claim, an additional 5% was granted, making a total of 40%. On August 8, 1965, the claimant again applied for a reopening of the claim. The claim was reopened by the commissioner who, after securing medical evidence, entered an order on January 19, 1966, denying any further award. This holding was protested by the claimant and hearings were held, at which further medical evidence was introduced and the testimony of the claimant taken. Thereafter, on June 10, 1968, the commissioner reversed his order of January 19, 1966, and granted claimant an award of total permanent disability. Upon appeal from this order by the employer, the Workmen’s Compensation Appeal Board reversed the commissioner and held that claimant had been fully compensated for his injury, to which order this Court granted an appeal on November 25, 1968.
At the time of claimant’s injury in 1960, he was fifty years of age, with an eighth grade education and had been em
The medical evidence is substantially as follows: Upon attaining his maximum degree of improvement following the 1960 injury, claimant was referred to Dr. R. L. Anderson for examination. Dr. Anderson, on February 14, 1963, found certain limitation of motion of the spine and recommended a 25% award. Dr. Anderson also noted in a previous report that “The length of the lower extremities is equal.” The commissioner made an award of 25% which was protested by claimant. At the hearings pursuant to claimant’s protest, claimant introduced the reports of Dr. C. W. Stallard and Dr. F. R. Jamison. The employer introduced the reports of Drs. Russel Kessel and H. A. Swart. All of these physicians noted the limitation of motion, with some deformity, in claimant’s back. Dr. Stallard found claimant to be totally and permanently disabled from doing any type of heavy manual labor. Dr. Jamison found “This claimant is unable to continue his mining work, and I believe that he is totally and permanently disabled.” Dr. Kessel, as stated above, noting the limitations of motion and deformity, also observed that the “legs are equal in length,” and recommended 25%. Dr. Swart observed the same objective findings, also finding 1/4 inch atrophy of the left leg, and recommended 35%. The commissioner awarded claimant 35%, which the claimant accepted and was paid. All of the foregoing examinations were in 1963.
In September, 1964, claimant petitioned the commissioner for a reopening of his claim, submitting in support thereof the report of Dr. F. M. Viscuse dated September 11, 1964. Dr. Viscuse found the limitation of motion and deformity, 1/2 inch atrophy of the left leg and a 1/2 inch shortening of the left leg and recommended a total permanent disability award. The commissioner reopened the claim and referred claimant to Dr. G. R. Callender. Dr. Callender noted an increased limitation of motion, although finding claimant improved in some respects, and recommended an additional
On August 30, 1965, claimant again petitioned for a reopening, submitting a report of Dr. Viscuse, dated August 12, 1965, in which Dr. Viscuse stated: “This man’s condition is worse than when he was paid his last award. I have compared my objective findings of today with the previous findings in this case and I now find that there has been a definite progression and aggravation of his condition. He now has . . . more residual pain and deformity . . . and more limitation of movement ... In addition he now has pain and limitation of movement of the cervical spine and a 1 inch shortening of the left leg, a fact not previously considered in this case. I think that this man is unable to perform any type of work as a result of his injuries and definitely is totally disabled at this time.” The claim was reopened and claimant was again referred to Dr. Callender who found some increase in the “lumbar lordosis”, a 1/8 inch increase in the atrophy of claimant’s left calf but otherwise found claimant’s condition to be about the same as on his previous examination and did not recommend an increase over the 40% previously awarded claimant. The commissioner entered an order denying further benefits which claimant protested. At the hearings pursuant to the protest, claimant testified that since the 40% award he had secured employment as a plant guard in Ohio and had worked 8 six-hour shifts but was unable to continue because of his physical condition and pain. Also, several additional medical reports were introduced. For the claimant, Dr. F. R. Jamison, in a report dated May 12, 1966, stated: “. . . this claimant’s general condition has become progressively more disabling. Claimant now has marked changes in locomotion, stability arid increased loss in normal function of the spine. I believe this claimant is totally and permanently disabled.” Dr. Stallard, in a report of March 8, 1966, found: “Unless this man can be rehabilitated where a good deal of walk, etc., is not required, he is totally and permanently disabled. He is certainly totally and permanently disabled from do
At the conclusion of the hearings, the commissioner reversed his former order and granted claimant a total permanent disability which, as heretofore stated, was reversed by the Appeal Board, the Appeal Board stating in their opinion, “The present ruling [of the commissioner] is evidently based on the findings of Dr. C. W. Stallard and Dr. G. F. Fordham, both of whom find claimant totally disabled. Dr. Stallard’s latest examination report is dated March 8, 1966, and is quite similar to his report of examination on January 16, 1963, when he also found claimant totally disabled. Dr. F. R. Jamison had found claimant totally disabled in 1963. . . . Undoubtedly claimant is totally disabled for work in the mines at this time; it is possible that he was so disabled in 1963 when no appeal was taken to the 40% award. . . . We are of the opinion that this claim should not have been reopened . . .”
It is clear from the provisions of Code 23-5-la and lb, as amended, that after a claimant has accepted an award of permanent partial disability that it is not sufficient for him to show in an attempt to get his claim reopened that he has a disability greater than that for which he has been compensated. On the contrary, lb provides that such a claim may be reopened only upon a showing of progression, aggravation or some new fact not theretofore considered by the commissioner which would entitle the claimant to greater benefits than he has already received. This man was paid on total temporary disability for a period of time and after examination was awarded a 25% permanent partial disability, which was protested by the claimant and he was, as heretofore noted, awarded a 35% permanent partial disability. Approximately a year later, upon a petition for reopening of the claim, an additional 5% permanent partial disability was awarded. There was no objection to this award by either the claimant or the employer. Less than a year thereafter claimant again applied for reopening of his claim. There is no question about the applicability of the statute to such a situation or to the decisions of this Court interpreting the act. In Taylor v. Workmen’s Compensation Commissioner, et al., 151 W. Va. 409, 151 S. E. 2d 283, this Court again approved the rule laid down in
In this case the employer has many cases on its side wherein it is held that this Court will not reverse an order of the appeal board upon an issue of fact unless the latter is clearly wrong. We have carefully looked then, not to the conclusions of the medical witnesses who testified or submitted reports but to their physical findings at the time of their examinations. It is the contention of the employer, and apparently that premise was accepted by the board, that inasmuch as some of the medical examiners found the claimant to be totally and permanently disabled prior to the granting of the 40% award that he was foreclosed from subsequently producing evidence of a progression or aggravation of his condition. However, to repeat, as was stated in McGeary v. State Compensation Director, 148 W. Va. 436, 135 S. E. 2d 345, it is not the conclusions of medical witnesses to which the commissioner and board must look but to the physical findings in their testimony or reports. Reference is made to the opinions in the Taylor and Mc-Geary cases for comprehensive discussion of this question. It is evident from the report of Dr. Viscuse, heretofore quoted in part, that the claimant’s condition had changed between the time that he was granted the 40% award and the examination by this physician. Among other things he states claimant has “a one inch shortening of the left leg, a fact not previously considered in this case.” Dr. Callen-der found an increase in the “lumbar lordosis” and a one-eighth inch increase in atrophy of the claimant’s left leg below the knee. Dr. Jamison found that the claimant’s condition has become “more disabling”. He stated that there
It is the view of this Court upon a careful consideration of the medical evidence and other parts of this record that the Workmen’s Compensation Appeal Board was clearly wrong in reversing the permanent total disability award made to this claimant and the Board’s action therein is reversed.
This decision will be certified to the Workmen’s Compensation Appeal Board and the Workmen’s Compensation Commissioner.
Reversed.