Bannister v. State Workmen's Compensation Com'r

• Citation: 174 S.E.2d 605,154 W.Va. 172
• Decision Date: 02 June 1970
• Docket Number: No. 12943,12943
• Parties: Alex BANNISTER v. STATE WORKMEN'S COMPENSATION COMMISSIONER, and Island Creek Coal Company.
• Court: Supreme Court of West Virginia

Page 605

174 S.E.2d 605

154 W.Va. 172

Alex BANNISTER v. STATE WORKMEN'S COMPENSATION COMMISSIONER, and Island Creek Coal Company.

No. 12943.

Supreme Court of Appeals of West Virginia.

Submitted April 28, 1970.

Decided June 2, 1970.

Syllabus by the Court

1. Under the law governing this case, except for silicosis, occupational disease means a disease incurred in the course of and resulting from employment, and no ordinary disease of life to which the general public is exposed outside of the employment shall be compensable unless it is proved that it was proximately caused by the employment.

2. In order to obtain workmen's compensation benefits for total disability resulting from a second injury coupled with a non-compensable definitely ascertainable physical impairment, such physical impairment must have been caused from an injury and not a disease unless such physical impairment was an occupational disease proved to have been proximately caused by employment.

3. 'Where an employee files his application for workmen's compensation benefits, based on the occurrence of an occupational disease other than silicosis, to entitle him to an award, he must establish that the disease was contracted in the course of and resulted from the employment: it is not sufficient to establish that the employment resulted in an aggravation of a disease existing at the beginning of such employment.' Syllabus, Ratcliff v. State Compensation Commissioner, 146 W.Va. 920, 123 S.E.2d 829.

Edward I. Eiland, Logan, for appellant.

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

BERRY, Judge.

This is an appeal by the Island Creek Coal Company, hereinafter referred to as employer, from an order of the Workmen's Compensation Appeal Board of January 23, 1970 which affirmed an order of the State Workmen's Compensation Commissioner of August 21, 1969 which found that the claimant, Alex Bannister, was totally and permanently disabled from the combined effect of silicosis and preexisting diseases of asthma and emphysema, and accordingly granted him an award of total and permanent disability. The Commissioner's order which was affirmed found that 40% Of the claimant's disability was due to silicosis and directed that the employer's account be charged with the 40% For silicosis and that the balance of the award be charged to the second injury fund, under the provisions of Code, 23--3--1, as amended, for pre-existing diseases diagnosed as asthma and emphysema. The Silicosis Medical Board had previously found insufficient evidence to diagnose silicosis but this finding was reversed by the Commissioner. An appeal was granted to the employer and it was submitted for decision on arguments and briefs at the April Special 1970 Docket.

The claimant who is approximately 57 years of age worked as an inside electrician in the coal mines for thirty years. He worked almost continuously from April 2, 1929 until October 12, 1960 at which time be became ill and was considered to be totally disabled. In 1962 he filed a claim for silicosis which was denied on the ground that he did not have the disease. He returned to work on June 19, 1963 and worked until November 22, 1963 at which time he ceased working because of illness. Another claim for silicosis was filed on November 17, 1965 which was referred by the Commissioner to the Silicosis Medical Board.

At the initial hearing before the Silicosis Medical Board Dr. W. Paul Elkin and Dr. William C. Stewart stated that there was insufficient evidence from the x-rays for a diagnosis of silicosis. However, Dr. James H. Walker, another Member of the Silicosis Medical Board, found sufficient evidence from the x-ray for a diagnosis of silicosis and he was of the opinion the claimant was totally and permanently disabled as the result thereof. At a continued hearing the evidence of Dr. Dante Castrodale was taken on July 17, 1967. Dr. Castrodale of the Stevens Clinic Hospital in Welch testified that he had treated the claimant from 1960 until 1967 for chronic asthma, emphysema and heart diseases and that he, as early as 1960, considered the claimant totally disabled but allowed him to return to work in 1963 on a trial basis which was unsuccessful.

After Dr. Castrodale's evidence was introduced into the record, and additional evidence of the Members of the Silicosis Medical Board was taken, Doctors Elkin and Stewart were still of the opinion that silicosis could not be diagnosed but Dr. Walker was of the opinion, considering Dr. Castrodale's testimony, that the claimant had 40% Disability from silicosis and that he was totally disabled with a silicosis disability coupled with his other diseases of asthma and emphysema. The other Members of the Silicosis Medical Board agreed that the claimant was totally disabled, but thought that such disability was not from silicosis.

The Commissioner apparently agreed with the testimony of Dr....