Emmel v. State Compensation Director

• Decision Date: 16 November 1965
• Docket Number: No. 12479,12479
• Citation: 150 W.Va. 277,145 S.E.2d 29
• Court: West Virginia Supreme Court
• Parties: Harry D. EMMEL v. STATE COMPENSATION DIRECTOR, and Fesenmeier Brewing Co.

Page 29

145 S.E.2d 29

150 W.Va. 277

Harry D. EMMEL v. STATE COMPENSATION DIRECTOR, and Fesenmeier Brewing Co.

No. 12479.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 29, 1965.

Decided Nov. 16, 1965.

Syllabus by the Court

1. "An award of a claim cannot be made in a workmen's compensation case unless it is supported by satisfactory proof that the workman sustained a personal injury in the course of and resulting from his employment.' Point 3, Syllabus, Hayes v. State Compensation Director, et al., 149 W.Va. 220 .' Point 2, Syllabus, Deverick v. State Compensation Director, W.Va. .

2. Whether an injury occurs in the course of and resulting from the employment so as to be compensable under the workmen's compensation act depends upon the particular facts in each case.

3. In determining whether an injury resulted from claimant's employment, a causal connection between the injury and employment must be shown to have existed.

4. An order of the workmen's compensation appeal board, approving an order of the state compensation commissioner, will be reversed by this Court on appeal, where the legal conclusions of the appeal board are erroneous.

George A. Fesenmeier, Huntington, for appellant.

Barrett & Chafin, James F. Barrett, Huntington, for appellee.

CAPLAN, Judge:

The claimant, Harry D. Emmel, an employee of Fesenmeier Brewing Company, while on the latter's premises, sustained an injury which resulted in his hospitalization. This injury occurred on November 15, 1962 and on May 29, 1963 the claimant filed an application for workmen's compensation. On July 9, 1963 the then director ruled that the claim was noncompensable, whereupon the claimant protested and hearings were conducted. Thereafter, on December 8, 1964, the director entered an order setting aside his previous ruling and declared this claim to be compensable. The latter ruling of the director was affirmed by the workmen's compensation appeal board and the employer prosecutes this appeal.

An examination of the record of this proceeding reveals that the claimant, on November 15, 1962, was employed by the Fesenmeier Brewing Company is its bottling house where he assisted in the bottle washing operation. He completed that day's work at 2:30 P.M. and officially checked out on the time clock. At that time, instead of leaving his employer's premises, he chose to go into the taproom, where he engaged with other employees in drinking beer.

The taproom is located on the premises of the employer and is maintained by it for its customers, employees and guests. Employees are permitted to use the taproom during their lunch period and after working hours, during which times they are served beer free of charge. Also they are allowed a 'beer break' each hour, when free beer is available if it is desired. Mr. John Kearney, a vice president of the employer company, testified that the taproom is like a clubroom maintained for the benefit of employees and visistors and that free beer is extra compensation for the employees; that it has been maintained as such since 1934; and that the operation of the taproom is company policy. Several employees testified that it was customary for most of the men who worked at the brewery to go to the taproom at the end of their shifts and drink berr. Although it was a company rule that they were to remain there for no more than half an hour, most of them ordinarily stayed until the taproom closed at 5:00 P.M.

After the claimant had been in the taproom for approximately two hours he expressed a desire to retire to the restroom and left the table for that purpose. As soon as he left the room his friends heard a dull thud in the hallway and hurried out to see what had happened. There they found the claimant on the floor in an unconscious condition. It was apparent that he had fallen and had struck his head on the concrete floor. There were no obstacles in that area which could have caused such a fall and no one could testify as to the reason therefor.

The claimant's companions attempted to render assistance, after which an ambulance was summoned and he was taken to the Cabell-Huntington Hospital. Before he received any treatment he insisted that his wife take him home, which she finally consented to do. However, later that night the claimant began to suffer extreme pain in his head and he was taken to the St. Mary's Hospital, where his wife was advised that he should be taken to a brain specialist in Charleston. He was later examined at Charleston Memorial Hospital and then returned to St. Mary's Hospital in Huntington where he remained for a week. The claimant was then admitted to the Veterans Administration Hospital where it was discovered that he had a fractured skull. He stayed at this hospital from December 7, 1962 until May 5, 1963, after which he was taken to the Morris Memorial Nursing Home in Milton, West Virginia. He was still at this home during the proceedings before the director. The claimant is mentally incompetent and his wife has been appointed his committee by the County Court of Cabell County.

The claimant's wife testified that prior to this occurrence the claimant had not been subject to fainting spells nor had he had any mental problem. She did say that he drank quite a bit and that she was told by the doctors in Charleston that 'his liver was damaged from drinking so much beer'. Since sustaining this injury the claimant has been totally disabled.

On this appeal it is the position of the employer that the appeal board erred in finding that the injuries complained of were sustained by the claimant in the course of and as a result of his employment.

In determining the rights of the parties herein, it is evident that the claimant has the burden of establishing by positive evidence, or by evidence from which the inference can fairly and reasonably be drawn, that he sustained an injury in the course of and resulting from his employment. Such proof is required under the provisions of Code, 1931, 23-4-1, as amended, which clearly state that before injured workmen are entitled to payment from the compensation fund it must be determined that their injuries have occurred 'in the course of and resulting from their employment'. This Court has repeatedly so held. Deverick v. State Compensation Director, W.Va., 144 S.E.2d 498; Hayes v. State Compensation Director, 149 W.Va. 220, 140 S.E.2d 443; Shapaka v. State Compensation Commissioner, 146 W.Va. 319, 119 S.E.2d 821; Claytor v. State Compensation Commissioner, 144 W.Va. 103, 106 S.E.2d 920; Miller v. State Compensation Commissioner, 126 W.Va. 78, 27 S.E.2d 586; Damron v. State Compensation Commissioner, 109 W.Va. 343, 155 S.E. 119; Machala v. Ott, Compensation Commissioner, 108 W.Va. 391, 151 S.E. 313. See also 21A M.J., Workmen's Compensation, § 31.

The two phrases, 'in the course of' and 'resulting from' are not synonymous and both elements must concur in order to make a claim compensable. The statute is in the conjunctive and not the disjunctive. Damron v. State Compensation Commissioner, 109 W.Va. 343, 155 S.E. 119; 21A M.J., Workmen's Compensation, § 31; 58 Am.Jur., Workmen's Compensation, § 210. Therefore, in the instant case it must be shown that the injury complained of occurred not only in the course of employment but also as a result of such employment.

The circumstances surrounding the subject injury must be considered fully in making a determination of compensability. The claimant had officially terminated his day's employment and of his own choice went to the taproom to drink beer. According to company rules he was permitted to remain in the taproom for half an hour. Yet, this injury occurred at least two hours after his day's employment had ended. This Court has held that where an...