Blevins v. State Comp. Comm'r.

Decision Date27 February 1945
Docket Number(No. 9687)
Citation127 W.Va. 481
CourtWest Virginia Supreme Court
PartiesLindsey Blevins v. State Compensation Commissioneret al.

1. Workmen's Compensation

The continuing jurisdiction of the State Compensation Commissioner to make modifications or changes with respect to former findings or orders, as provided in Section 16, Article 4, Chapter 137, Acts of the Legislature, 1939, is limited and restricted by Sections l-(a) and l-(b) of Article 5 of the same chapter.

2. Workmen's Compensation

In a compensation case, where the compensation commissioner makes a finding of permanent partial disability, and an award of compensation based thereon, which award becomes final by failure to protest against or appeal therefrom, the case cannot be reopened, or any further award of compensation made therein unless there is a showing of "a progression or aggravation in claimant's condition, or some other fact or facts which were not theretofore considered by the commissioner in his former findings, and which would entitle such claimant to a greater benefit than he has already received * * *." Acts of the Legislature, 1939, Chapter 137, Article 5, Sections l-(a) and l-(b).

Appeal from Workmen's Compensation Appeal Board.

Proceeding under the Workmen's Compensation Act by Lindsey Blevins, claimant, opposed by Carbon Fuel Company, employer. From an order of the Workmen's Compensation Appeal Board affirming an order of the State Compensation Commissioner, by which claimant was awarded compensation for life upon the basis of a permanent total disability, the employer appeals.

Reversed and remanded.

W. T. O'Farrell and Brown, Jackson & Knight, for appellant.

Ira P. Hager, for appellee.

Fox, Judge:

The employer, Carbon Fuel Company, appeals from an order of the Workmen's Compensation Appeal Board entered on the 7th of October, 1944, affirming an order of the State Compensation Commissioner, made on the 17th day of August, 1944, by which claimant was awarded compensation for life upon the basis of a permanent total disability.

Claimant was injured by a slate fall on July 27, 1938. He went to a hospital five days later, and was there examined by Dr. J. Ross Hunter, whose report on his examination contains the following:

"His chief complaint was pain in his left loin. There was no evidence of injury to the cord, and no evidence of internal injury. There was tenderness over the 4th lumbar vertebra without deformity. X-ray picture made August 2, showed a fracture of the left transverse process of the third lumbar vertebra with little or no displacement of the fragments."

Claimant filed his application for compensation on September 15, 1938, and he was paid compensation on a temporary basis for a total of 70 2/10 weeks, ending on November 30, 1939. He was referred to Dr. R. L. Anderson for examination, and was examined on May 9, and report thereof later made, in which it appears that:

"Re-examination of the lumbar spine in two positions shows the fragments of the fracture referred to in the left transverse process of the third lumbar vertebra has healed firmly with no displacement of the fragments. The alignment of the spine is good in both planes."

Dr. Anderson gave as his opinion that the man was somewhat disabled, but that he believed most of his disability was due to arthritic changes in the spine, and suggested that he have his teeth attended to, tonsils removed, and that some manipulation of his back would help his condition. Dr. Anderson made a further report, based on this same examination, on June 1, 1939, in which he says:

"This man sustained a comparatively mild fracture of the spine, that is, a fracture of the transverse process. He also sustained, simultaneously, a rather severe back strain. At the present time the X-ray also shows hypertrophical lipping. He is not able to work at the present time, but I believe that much of his disability is temporary."

He then advised that his teeth and tonsils have attention, and that manipulation of the spine would help his condition. He also stated: "The partial permanent disability in this case is 15%"

On August 9, 1939, claimant was again examined by Dr. Anderson, and in his report thereof, he says:

"It is believed that this man has improved some since the last examination. It is still believed, however, that he would be benefited by the removal of crowned teeth and by the manipulation of his back, since he still has stiffness of the lower erector spinae muscle group."

He further stated that he did not believe he had reached his maximum degree of improvement, and that his disability rating should be deferred.

An elaborate report of claimant's condition was made by the medical examiner for the Compensation Department, Dr. Laslie, under date of October 6, 1939. At that time claimant had been paid compensation for 59 3/7 weeks, and it was recommended that he be ordered to again report to Dr. Anderson. He did not so report, and on November 28, 1939, he was advised by the medical

examiner that until such time as he should "signify his willingness to cooperate with his attending physician, and have reported for this treatment no further payments of compensation can be made." On December 1, 1939, claimant returned to work, and performed light work until July, 1940, since which time he has not done any work.

Claimant was again referred to Dr. Anderson on May 8, 1940, and was again examined by him on the 27th of that month, and report made on June 5 following. At that time claimant had been paid compensation for 70 2/7 weeks. Dr. Anderson gave as his opinion that, "This man has been fully compensated. No treatment is recommended at the present time." Following this report, on June 10, 1940, claimant's disability was ascertained by the compensation commissioner to be 17 3/4 partial permanent disability entitling him to compensation for 71 weeks at $16.00 per week. Having been paid $1,124.57 under his temporary status, he was paid the balance due him of $11.43. In a letter of that date, claimant was advised of his right to file objections to the award within thirty days, and protest thereto was made on June 18, 1940, but the same does not appear to have been followed up.

On December 2, 1940, claimant filed a petition asking for a reopening of his claim. In it he recites the award of 71 weeks aforesaid, says his disability has increased since the last award, and that "he is now totally and permanently disabled and not able to do any manual labor at all in or about the mines." He attached to this petition a medical report made by Dr. H. D. Hatfield, which he asked to be considered. Dr. Hatfield's report is dated November 26, 1940, covers his then condition in considerable detail, and ends his report with this statement:

"My judgment at present is that this man is suffering from disability sustained on date given. A fusion-or better-spinal graft could very well reclaim him from permanent total disability."

Following the filing of the petition, and Dr. Hatfield's report, claimant was again, two weeks later, referred to Dr. Anderson, who was advised of the substance of the Hatfield report. Dr. Anderson's report on this examination was made on December 31. In it he says:

"This man is suffering from hypertropic arthritis of the spine. I do not believe that this injury is responsible for arthritic condition."

About this time claimant was referred to Dr. Archer A. Wilson for a neurological examination. Dr. Wilson's report is dated December 21, 1940, and under the heading "Impression", he says:

"This claimant has clinical and X-ray evidence of a herniation of an intervertebral disc between the 4th and 5th lumbar bodies. This is assumed to be traumatic in origin since there was bone damage done at the time of his trauma and this root type pain which he now has, has been present since the injury. For relief of his pain it is recommended that a laminectomy be done and the herniated disc removed."

The operation recommended by Dr. Wilson was performed on January 28, 1941, and claimant was discharged from the hospital on February 16 following.

On March 19, 1941, claimant filed another petition asking that his case be reopened. In this petition he represented that he had been paid for a period of 71 weeks, and had returned to light work and continued to perform such work until July 19, 1940, when his disability had progressed to such an extent that he had to quit, and that "since that time he has been totally disabled and has submitted to an operation, which operation was performed by Dr. A. A. Wilson, Charleston, West Virginia." He asked for accrued compensation due him from July 19, 1940. The prayer of his petition was denied on March 25, 1941, and he was notified of his right to protest within thirty days, and protest was made within that period and a hearing held, although we do not understand that a hearing on a petition to reopen is proper.

On May 14, 1941, claimant was examined by Dr. J. A. Stumbo. From his report it appears that the examination made by him showed the scar made by the operation, and reported that claimant has a spondylolisthesis, and that there were hypertrophic changes in the vertebral column. Dr. Stumbo says: "This claimant, in my opinion, is totally and permanently disabled, and in need of further treatment, such as a Taylor back brace." On April 24, 1941, Dr. Hatfield made a further examination and report. He says:

"Mr. Blevins, notwithstanding the operative procedure that has given him some comfort from pain, still has a 100 per cent permanent total disability for manual labor-that type of labor that he was capable of doing and performing at the time he sustained the injury."

On July 24, 1941, claimant filed what is termed an amended and supplemental petition to have his claim reopened, to which he attached the reports of Dr. Hatfield and Dr. Stumbo above noted. In this petition he says:

"Your petitioner alleges that he is...

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