Acree v. State Compensation Com'r

• Decision Date: 31 October 1961
• Docket Number: No. 12118,12118
• Citation: 146 W.Va. 654,122 S.E.2d 291
• Court: West Virginia Supreme Court
• Parties: Ruby ACREE v. STATE COMPENSATION COMMISSIONER and Youghiogheny & Ohio Coal Company.

Page 291

122 S.E.2d 291

146 W.Va. 654

Ruby ACREE v. STATE COMPENSATION COMMISSIONER and Youghiogheny & Ohio Coal Company.

No. 12118.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 7, 1961.

Decided Oct. 31, 1961.

Syllabus by the Court

1. A dependent widow of an employee who has contracted silicosis in the course of his employment, to be entitled to workmen's compensation benefits, must establish that death of the employee resulted from silicosis in the third stage. It is not sufficient to establish that silicosis of the first or second stage may have contributed to, or hastened, the death of the employee.

2. To entitle a dependent of an employee who dies from silicosis to workmen's compensation benefits, it must be established that there was a finding by the State Compensation Commissioner of third stage silicosis at the time of the original award made to the employee. Point 2 of the syllabus of Peak v. State Compensation Commissioner, 141 W.Va. 453, , explained and limited.

Shaffer & Shaffer, H. Gus Shaffer, Jr., Madison, for appellant.

R. L. Theibert, Charleston, for appellee.

GIVEN, Judge.

Claimant in the instant proceeding, Ruby Acree, widow of Pete Acree, a former employee of Youghiogheny & Ohio Coal Company, was by the Workmen's Compensation Appeal Board granted dependent benefits on a finding of the board that the employee's death resulted from silicosis. The order awarding such benefits reversed an order of the State Compensation Commissioner which held, in effect, that the death of the employee resulted from a cause other than silicosis.

The employee, in 1957, filed a claim for silicosis benefits, and was granted an award for first stage silicosis. The award was based on a report of the silicosis medical board, which noted clinical evidence of a cardio-vascular disease, and more particularly, on the evidence of the member of that board who interpreted the pertinent x-rays, which revealed: 'Stereoscopic studies of the chest revealed a thickening in the hilar regions with much fibrosis in the right lung base and slight fibrosis in the left medial lung base. There was pleuro-diaphragmatic adhesions bilaterally more marked on the right. There was no conclusive evidence of any nodulation in the lungs and therefore, no definite x-ray evidence of silicosis. However, I am informed that the biopsy specimen of the hilar lymph nodes showed anthracosilicosis.' No objection was made to the first stage silicosis award.

The employee, in December, 1958, suffered a coronary occlusion, from which he partially recovered. He suffered a second coronary occlusion February 24, 1959, and died very suddenly.

The employee was examined in 1955 by Doctor James H. Walker, a thoracic surgeon, and found to be suffering from 'shortness of breach and chest pain. He had definite signs of coronary arteriosclerosis and angina pectoris.' Later, surgery was performed whereby 'an internal mammary artery transplant' was made 'to improve the circulation to his heart'. He thereafter received medical care for the heart condition until the time of his death. A report of an autopsy showed that 'Although the man's primary cause of death appeared to be arteriosclerotic heart disease, it is also my opinion that the extensive pulmonary silicosis, together with cor pulmonale, added a considerable additional burden to this man's heart, which was already taxed to a considerable degree by the arteriosclerotic heart disease. I feel that the silicosis, therefore, probably did play a significant factor in contributing to this man's death.' Doctor Walker, who, in addition to his examinations and treatment of the employee, studied the autopsy report, testified: 'In my opinion his silicosis, plus fibrosis and emphysema, would be a very definite contributing factor to his development of cor pulmonale, which I believe can be reasonably considered as a contributing factor to his acute coronary occlusion.'

Another pathologist who examined the pertinent slides and materials, gave this opinion: 'I have no doubt that the essential lung lesion is a typical silicosis. In going over the slides once more after our recent conversation about the case, I feel fairly strongly that the peribronchial giant cellular granuloma is most compatible with a diagnosis of tuberculosis in spite of the fact that no acid fast organisms were demonstrated in the section * * * In the overall picture I would diagnose the lung lesion, therefore, as a silico-tuberculosis.' The three members of the silicosis medical board were asked: 'There is no doubt but what this man's primary cause of death was the coronary occlusion that he had, is that the opinion of all of you?'; to which this answer was given: 'Yes, we are unanimous on that.' Doctor George F. Grisinger, a member of the board, testified: '* * * there is really no evidence, x-ray evidence, of silicosis in the upper half of either lung, and it just seems incredible to me that an individual showing no more evidence of silicosis than this individual does on an x-ray film, having looked at thousands of those films, that he could have had the heart disease that produced his death as a result of silicosis * * *'.

Doctor Paul W. Elkin, a roentgenologist and a member of the silicosis medical board, testified: '* * * I said I couldn't conceive of a case in which a skilled interpreter * * * cannot see nodules in this lung and all we see is thickening in the hilar regions from nodes and fibrosis and apparent inflammatory changes in the lung bases, and to have that turn up to be a third stage silicosis I cannot conceive of it.'

Doctor William C. Stewart, a member of the silicosis medical board, was asked what, in his opinion, the extensive cor pulmonale and lung pathology did to bring on the heart attack sooner than it would have otherwise occurred, to which he answered: 'That no one knows. I doubt it, myself. I take the position that it did not cause his heart attack, but there might be room for difference of opinion on that point, but I don't think it did.'

Doctor Ralph J. Jones testified: 'I am not satisfied at all that the case cor pulmonale is very good, and I would say there is sufficient evidence for diagnosis of acute right heart strain, but to me the little bit of evidence which is present this man had what we would ordinarily consider a very early silicosis, one of those too early to be diagnosed by x-ray ordinarily, and to say that contributed to this man's death when he had severe heart disease which would have caused his death without any question seems to me to be going to extremes.'

The finding of the silicosis medical board, made August 25, 1959, insofar as pertinent, was: 'It is our opinion that this claimant's death was not caused by silicosis and silicosis did not contribute to his death. Therefore, we do not believe this claimant's death was due to silicosis in the third stage.' Protest hearings were held, and the final conclusion of the silicosis medical board, made March 25, 1960, was: 'We have again reviewed all of the available evidence in the above styled claim including previous findings made by this...