Bowling v. State Comp. Comm'r

• Citation: 166 S.E. 9
• Decision Date: 04 October 1932
• Docket Number: No. 7386.,7386.
• Court: Supreme Court of West Virginia
• Parties: BOWLING. v. STATE COMPENSATION COMMISSIONER.

166 S.E. 9

BOWLING.
v.
STATE COMPENSATION COMMISSIONER.

No. 7386.

Supreme Court of Appeals of West Virginia.

Oct. 4, 1932.

Syllabus by the Court.

"Where the facts concerning a claim for compensation, arising under the Workmen's Compensation Act, are not sufficiently developed by evidence to enable the commissioner or the court to arrive at the real merits of the claim, an order may be entered here recommitting the case to the commissioner for further development." Holland v. Commissioner (W. Va.) 165 S. E. 675.

Proceedings under the Workmen's Compensation Act by C. L. Bowling, claimant. From a decision of the State Compensation Commissioner refusing a further award on petition to reopen claim, the claimant appeals.

Ruling reversed, and cause remanded.

W. L. Taylor, of Logan, for appellant.

Howard B. Lee, Atty. Gen., and R. Dennis Steed, Asst. Atty. Gen., for respondent.

MAXWELL, J.

Claimant received a severe injury at the base of his skull while working for the West Virginia Coal & Coke Company in Logan County January 31, 1928. Hospitalization followed. Claim for compensation was promptly filed and allowed, he being awarded compensation as under an "open claim" for some time. September 11, 1929, the commissioner made a finding of twenty-five per centum partial permanent disability. February 14, 1930, upon further consideration of the matter, the commissioner increased the rating to fifty per centum under which rating claimant's compensation would have expired December 7, 1931, but in the meantime upon petition of claimant he was paid a lump sum in full settlement of the fifty per centum award.

January 13, 1932, claimant petitioned the commissioner to re-open his claim on the ground that his disability was in fact greater than fifty per centum, and submitted affidavits of physicians in support of his petition. In pursuance of this request a hearing was held by a representative of the commissioner February 23, 1932. Following this hearing the commissioner declined to make further award, because it did not appear "that there is any injury for which he (claimant) has not been compensated and that said injury has not, become aggravated." Claimant protested against this finding without avail. Award of this appeal to the petitioner followed.

At the said hearing the testimony of three physicians and two lay witnesses was introduced on behalf of the. petitioner. There were no other witnesses. Petitioner insists that he should have a further heating. He says that he did...