Barnett v. State Workmen's Compensation Com'r

• Decision Date: 03 March 1970
• Docket Number: No. 12906,12906
• Citation: 172 S.E.2d 698,153 W.Va. 796
• Parties: Betty J. BARNETT, Widow, etc. v. STATE WORKMEN'S COMPENSATION COMMISSIONER, and Gauley Coal & Coke Company.
• Court: West Virginia Supreme Court

Page 698

172 S.E.2d 698

153 W.Va. 796

Betty J. BARNETT, Widow, etc. v. STATE WORKMEN'S COMPENSATION COMMISSIONER, and Gauley Coal &amp Coke Company.

No. 12906.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 10, 1970.

Decided March 3, 1970.

Syllabus by the Court

1. In order for a claim to be held compensable under the Workmen's Compensation Act, three elements must coexist: (1) a personal injury (2) received in the course of employment And (3) resulting from that employment.

2. 'A hypothetical question which assumes facts unsupported by the evidence should not be submitted to an expert witness.' Syllabus, point 1, Blair v. Clark Coal & Coke Co., 107 W.Va. 507 (148 S.E. 849).

3. 'A disability incurred by an employee in the course of his employment, not directly attributable to definite, isolated, fortuitous occurrence, is not compensable under the State Compensation Act.' Syllabus, point 1, Adams v. G. C. Murphy Co., 115 W.Va. 122 (174 S.E. 794).

Dan O. Callaghan, Richwood, for appellant.

James A. Barber, Richwood, for appellees.

BROWNING, President.

Garcie Barnett was employed by the Gauley Coal and Coke Company as foreman of a three-man 'moving crew' and as a result of circumstances that will be related in detail hereinafter, occurring about three hours after his 'shift' began, he was admitted to the Sacred Heart Hospital during the early morning hours of April 10, 1968. His attending physician saw him after his admission to the hospital and diagnosed his condition as 'a coronary occlusion.' The patient died on April 12 of what his physician diagnosed as a recurrence of the heart attack which he had suffered two days previously. The widow and minor dependent children of the deceased filed application for workmen's compensation benefits upon the theory that the deceased's death was due to an injury received in the course of and resulting from his employment. These parties will hereinafter be referred to as appellees and the coal company as the appellant. All Code references in this opinion are to the articles, sections and subsections of Chapter 23 of the Code of West Virginia as amended prior to the death of Barnett. The commissioner originally denied benefits to appellees upon the ground that 'deceased husband's death was not due to the injury received in the course of and as a result of his employment'. There was a protest and after three hearings the commissioner set aside his former ruling, held the claim compensable, and made an award to each of the appellees. On Movember 21, 1969, the Workmen's Compensation Appeal Board affirmed the commissioner's ruling by a two to one vote. The view of the majority is expressed in an opinion accompanying and explaining the reasons for their order in this language:

(T)he claimant, at the time of his death, was engaged in a strenuous undertaking to unfoul a heavy belt. This Board further takes cognizance of the evidence that the employee had been performing extra work as requested by his employer. Further, that the claimant, at the time of sustaining his heart attack, was helping in the unfouling of the belt all of which could have caused an extra strain on his heart.

Under the circumstances, this Board is of the opinion that this was a fortuitous event; that it did result from his employment; that the coronary occlusion was suffered under unusual strains and exertions and it was as a result of the claimant's employment.

This Court granted an appeal from that decision and the case was submitted upon extensive briefing by counsel for the parties but without oral argument.

Code, 23--4--1, as amended, provides for the payment of compensation to employees or the dependents of deceased employees who 'shall have received personal injuries in the course of and resulting from their employment' providing, of course, in the case of death benefits, that such injury caused the death of the employee. It can be seen from this section that three elements must coexist in compensation cases: (1) a personal injury (2) received in the course of employment And (3) resulting from that employment. The conjunctive 'and' shows that the last two elements are not synonymous. That is the vital provision of the workmen's compensation law that is determinative of the issues arising in this case. The only exception is the following language in 23--4--1: 'For the purposes of this chapter the terms 'injury' and 'personal injury' shall be extended to include silicosis and any other occupational disease as hereinafter defined * * *.' As to these and other related matters, see De La Mater, 'A Brief Survey of the West Virginia Law of Compensability,' 62 W.Va.L.Rev. 303 (1960).

There is no contention in this case that whatever caused the decedent to leave his place of employment and go to a hospital did not occur in the course of his employment. The question in the instant case is whether the deceased suffered a personal injury resulting from his employment which caused his death. This is the first syllabus point of Adams v. G. C. Murphy Company, 115 W.Va. 122, 174 S.E. 794:

'A disability incurred by an employee in the course of his employment, not directly attributable to definite, isolated, fortuitous occurrence, is not compensable under the State Compensation Act.

In the opinion it is emphasized that the workmen's compensation fund was created and exists only for the payment of compensation for injuries and is not a health and accident fund. This is the third syllabus point from Jones v. Rinehart & Dennis Co., 113 W.Va. 414, 168 S.E. 482, which also emphasizes that point:

Disease contracted in the course of and resulting from employment is not compensable under the West Virginia Compensation Act, Code 1931, 23--4--1, unless directly attributable to a definite, isolated, fortuitous occurrence.

We now come to a discussion of evidence in such cases. This Court has held that the compensation law of this State, being remedial in nature, is to be construed liberally. The unique character of the compensation law, however, does not remove it from the province of this Court to apply, construe, or interpret All legislative acts. The liberality rule has been extended to the appraisal of evidence in a contested workmen's compensation case. As to the weight to be given findings of fact by the appeal board based on the evidence, this Court is directed by Code 23--5--4a to give 'like weight to that accorded to the findings of facts of a trial chancellor or judge in equity procedure.' See Whitt v. State Workmen's Compensation Commissioner, W.Va. 172 S.E.2d 375, decided at this term of Court, for a discussion of these matters and a history of the development of the liberality rule.

A necessary corollary to the abovequoted portion of Code 23--5--4a is exactly what weight this Court must give to 'the findings of facts of a trial chancellor or judge in equity procedure.' R.C.P. 52(a) provides:

In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. * * * Findings of fact shall not be set aside unless clearly erroneous * * *. (Emphasis added.)

The general rule is stated by Dr. Marlyn E. Lugar in his West Virginia Rules Decisions at page 58:

Findings of a trial court upon facts submitted to it in lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by an appellate court unless the evidence plainly and decidedly preponderates against such findings. * * *

Dr. Lugar then cites Bluefield Supply Co. v. Frankel's Appliances, Inc., 149 W.Va. 622, 142 S.E.2d 898; Work v. Rogerson, 149 W.Va. 493, 142 S.E.2d 188; Foglesong v. Foglesong Funeral Home, Inc., 149 W.Va. 454, 141 S.E.2d 390; DeLong v. Farmers Building & Loan Ass'n., 148 W.Va. 625, 137 S.E.2d 11; Dunning v. Barlow & Wisler, Inc., 148 W.Va. 206, 133 S.E.2d 784; and General Electric Credit Corp. v. Fields, 148 W.Va. 176, 133 S.E.2d 780. Thus, it can be seen by applying this well established principle to the language of Code 23--5--4a that this Court must give the same weight to findings of fact of the appeal board in compensation cases as it does to the findings of fact in a jury verdict, and such findings will not be set aside unless clearly erroneous, or, as Dr. Lugar states, 'the evidence plainly and decidedly preponderates against such findings.' Of course, all of this presupposes that there was evidence in a case upon which a particular fact could be found to exist.

The terms 'personal injuries', 'in the course of' and 'resulting from' employment as used in 23--4--1 have been liberally construed by this Court. In Canoy v. State Compensation Commissioner, 113 W.Va. 914, 170 S.E. 184, a widow was awarded benefits upon a holding that the injury which caused her husband's death was within 'the course of employment' although he was struck by an automobile on a public highway in walking from his home to his place of employment on the other side of the highway. There are many cases to the same effect, and if there has been an injury which was received in the 'zone of employment' this Court has generally held that to be sufficient.

In Turner v. State Compensation Commissioner, 147 W.Va. 106, 126 S.E.2d 40, it was held that an injury received by an employee in a fight with a fellow employee over the manner of the performance of their work 'resulted from' employment. This Court held in Gilbert v. State Compensation Commissioner, 121 W.Va. 10, 1 S.E.2d 167, that: 'An acute dilatation of a normal heart, superinduced by an unusual lift or strain occurring in the course of and resulting from employment is a compensable injury within the meaning of Code, 23--4--1,' even though at the time of the employee's heart attack he was performing duties which consisted principally' of that which was his usual employment. The claimant was 'unloading and...