Ball v. Workmen's Compensation Com'r

• Citation: 194 S.E.2d 229,156 W.Va. 419
• Decision Date: 13 February 1973
• Docket Number: No. 13273,13273
• Court: West Virginia Supreme Court
• Parties: Willie BALL v. WORKMEN'S COMPENSATION COMMISSIONER and Westmoreland Coal Company.

Page 229

194 S.E.2d 229

156 W.Va. 419

Willie BALL v. WORKMEN'S COMPENSATION COMMISSIONER and Westmoreland Coal Company.

No. 13273.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 10, 1973.

Decided Feb. 13, 1973.

Syllabus by the Court

1. Chapter 23, Article 4, Section 9b, of the Code of West Virginia, 1931, as amended, in effect on October 2, 1967, did not permit a Workmen's Compensation award for permanent partial disability to be reduced to adjust for a pre-existing condition when that condition originated from a previous compensable injury.

2. The Supreme Court of Appeals will reverse the Workmen's Compensation Appeal Board when it appears that the Board's ruling is clearly wrong.

George G. Burnette, Jr., Charleston, for appellant.

Shaffer, Shaffer & Hall, H. Gus Shaffer, Madison, for appellee.

NEELY, Judge:

This case is an appeal from a final order of the Workmen's Compensation Appeal Board dated September 28, 1972, in which the Board reversed the Workmen's Compensation Commissioner's ruling of February 22, 1972, which awarded the claimant a 40% Permanent partial disability. In place of the Commissioner's 40% Award, the Board awarded a 25% Permanent partial disability.

The record discloses that on October 2, 1967, at the age of sixty-two, the claimant, Willie Ball, sustained an injury to his back while shoveling coal for his employer, Westmoreland Coal Company. He was taken to a hospital where he was treated conservatively by traction, heat, and physical therapy for approximately twenty-five days. He returned home, and continued under a doctor's care for approximately one year, but was unable to return to work. Ulimately, as a result of his 1967 injury, claimant underwent an operation for a reptured intervertebral disc. All evidence indicates that since his 1967 injury the claimant has not returned to work. During this period of unemployment the claimant was compensated by 112 6/7 weeks of temporary total disability.

The Commissioner selected Dr. A. A. Abplanalp to evaluate the disability resulting from the October 2, 1967 injury, and Dr. Abplanalp reported that the claimant had suffered a 25% Permanent partial disability.

On January 5, 1970, the Commissioner awarded a 25% Permanent partial disability; however, because of the temporary total disability payments the Commissioner ruled that no further payment was due.

The claimant protested the initial award, and was examined by four other doctors. Dr. Russel Kessel requested the medical evidence pertaining to a previous back injury sustained by the claimant in 1956, and after reviewing those records, Dr. Kessel recommended an award of 30%. Dr. C. W. Stallard, relying exclusively upon the claimant's condition after 1967, testified that the 1967 injury resulted in a 40% Permanent disability. Dr. Harold H. Kuhn said in his report:

'Dr. Kessel has recommended a 30%, Dr. Stallard a 40%. I am in agreement with Dr. Kessel and Dr. Stallard.'

Upon review of the record, the Commissioner entered an order dated February 22, 1972, granting claimant a 40% Disability for the 1967 injury. The employer appealed, and the Appeal Board reversed, and ordered a 25% Permanent partial disability award.

This Court is of the opinion that the Appeal Board's order of September 28, 1972 is clearly wrong, both with respect to the inferences drawn from the facts and the Board's interpretation of the applicable law.

It appears from the record that the claimant sustained a prior injury to his back on September 18, 1956, which was the subject of Workmen's Compensation claim No. 57--25703. At that time the claimant was incapacitated for seventy-two weeks, for which he was paid total temporary disability benefits. In the 1956 case the claimant was not awarded a permanent partial disability, and he returned to work until his injury on October 2, 1967. The Appeal Board assigned the prior injury as one of the reasons for reducing the award from 40% To 25% And said:

'In evaluating this record, the board is of the opinion that the medical evidence supports the conclusion that the claimant suffered a 25% Permanent partial disability as the result of injuries which he sustained on October 13, 1967. We believe that a fair appraisal of the evidence would reflect that any disability suffered by the claimant in excess of this figure would be traceable to his prior injury of 1956. It is therefore our opinion that the Commissioner, in awarding the claimant a 40% Permanent partial disability in his order of February 22, 1972, was in error.'

The only statutory authority for the reduction of an award because of pre-existing physical impairments is Chapter 23, Article 4, Section 9b of the Code of West Virginia, 1931, as amended, which was in effect at the time of the...