Buckalew v. State Compensation Director, No. 12394

CourtSupreme Court of West Virginia
Writing for the CourtHAYMOND
Citation149 W.Va. 239,140 S.E.2d 453
PartiesIra E. BUCKALEW v. STATE COMPENSATION DIRECTOR and The Dingle Clark Company.
Decision Date23 February 1965
Docket NumberNo. 12394

Page 453

140 S.E.2d 453
149 W.Va. 239
Ira E. BUCKALEW
v.
STATE COMPENSATION DIRECTOR and The Dingle Clark Company.
No. 12394.
Supreme Court of Appeals of West Virginia.
Submitted Jan. 19, 1965.
Decided Feb. 23, 1965.

Syllabus by the Court

1. An order of the Workmen's Compensation Appeal Board, affirming an order of the State Compensation Director, which is not supported by the evidence and, for that reason, is plainly wrong, will be reversed and set aside by this Court.

[149 W.Va. 240] 2. When a claimant in a workmen's compensation case makes timely application in writing under the provisions of Sections 1(a) and 1(b), Article 5, Chapter 23, Code, 1931, as amended, for further adjustment

Page 454

of his claim, and upon such application claimant establishes a progression or aggravation in his condition, or a fact or facts not theretofore considered by the director in his former findings, and which would entitle claimant to greater benefits than he has already received, this Court will reverse an order of the appeal board affirming the order of the director which denies a reopening of the claim.

Franklin W. Kern, Charleston, for appellant.

No appearance for appellee.

HAYMOND, Judge.

In this compensation claim the employee, Ira E. Buckalew, who was awarded a 70% permanent partial disability on May 23, 1961, for a serious injury sustained by him on July 25, 1958, while employed by The Dingle Clark Company, of Cleveland, Ohio, filed his petition on July 2, 1964, within the time limit for that purpose, to reopen his claim on the ground of progression or aggravation of his condition since his final award which would entitle him to further compensation. The petition was accompanied by the report of his physician which stated that upon physical examination of the claimant the physician found, among other conditions, that the muscle body and strength of the claimant in both lower legs and the flexion and extension of his ankle joints have decreased. By order of July 8, 1964, the Director denied the petition of the claimant to reopen the claim and the ruling of the Director was affirmed by the Workmen's Compensation Appeal Board on November 6, 1964. From that order this Court granted this appeal upon the application of the claimant. Neither the Director nor [149 W.Va. 241] the employer has appeared in this appeal in this Court and the proceeding was submitted for decision upon the original record and the written brief of the attorney for the claimant.

The claimant contends that the order of the Appeal Board is erroneous in not reversing the order of the Director which refused to permit the claim to be reopened.

The claimant was injured on July 25, 1958, when struck by a motor control center during his employment by The Dingle Clark Company. In the accident he sustained a supracondylar fracture of the left femur a compound comminuted fracture of the left and the right os calcis, a comminuted fracture of the right tibia, a right midfoot dislocation, and a francture of the second, third and fourth right metatarsals. He was treated on three or four occasions by a Dr. McCowen at Thomas Memorial Hospital and was required to submit to two surgical operations and to have a plaster cast on his right lower extremity for a period of approximately eleven months and afterwards to wear a brace until the spring of 1960. He was examined on August 5, 1960 by the Medical Examining Board composed of Doctors Russell Kessell, C. N. Caudill and H. A. Swart who reported a 65% disability. On September 27, 1960, the commissioner made an award of 65% permanent partial disability. The claimant protested that award and filed the reports of Doctors Harold H. Kuhn and Joseph P. Seltzer, who recommended a 70% disability. On May 23, 1961, the award of 65% permanent partial disability was set aside and vacated and the claimant was granted an award of 70% permanent partial disability which was paid in due course. During his disability the claimant has been under the care of his regular physician, Dr. Joseph A. Smith, whose report accompanies the petition to reopen the claim.

In his report Dr. Smith makes, among others, these statements:

'Mr. Buckalew was in to see me June 22, 1964 concerning the...

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18 practice notes
  • Staubs v. State Workmen's Compensation Commissioner, No. 12819
    • United States
    • Supreme Court of West Virginia
    • July 15, 1969
    ...set aside by this Court. Kennedy v. State Compensation Director, 150 W.Va. 132, 144 S.E.2d 509; Buckalew v. State Compensation Director, 149 W.Va. 239, 140 S.E.2d 453; McGeary v. State Compensation Director, 148 W.Va. 436, 135 S.E.2d 345; Kamensky v. State Compensation Commissioner, 148 W.V......
  • Pennington v. State Workmen's Compensation Com'r, No. 12934
    • United States
    • Supreme Court of West Virginia
    • July 7, 1970
    ...evidence in such cases. Dombrosky v. State Compensation Director, 149 W.Va. 343, 141 S.E.2d 85; Buckalew v. State Compensation Director, 149 W.Va. 239, 140 S.E.2d 453; McGeary v. State Compensation Director, 148 W.Va. 436, 135 S.E.2d 345; Eady v. State Compensation Commissioner, 148 W.Va. P......
  • Dombrosky v. State Compensation Director, No. 12393
    • United States
    • Supreme Court of West Virginia
    • March 23, 1965
    ...and applied the liberality rule in the interpretation of evidence in such cases. Buckalew v. State Compensation Director, W.Va., 140 S.E.2d 453; McGeary v. State Compensation Director, W.Va., 135 S.E.2d 345; Eady v. State Compensation Commissioner, 148 W.Va. 5, 132 S.E.2d 642; Turner v. Sta......
  • State ex rel. Sams v. Ohio Val. General Hospital Ass'n, No. 12361
    • United States
    • Supreme Court of West Virginia
    • February 23, 1965
    ...private hospital, which may, in its discretion, exclude any physician from its staff without being required to give any reason therefor. [149 W.Va. 239] The right to relief by mandamus must be clearly established. 'To warrant the court in granting this writ such a state of facts must be pre......
  • Request a trial to view additional results
18 cases
  • Staubs v. State Workmen's Compensation Commissioner, No. 12819
    • United States
    • Supreme Court of West Virginia
    • July 15, 1969
    ...set aside by this Court. Kennedy v. State Compensation Director, 150 W.Va. 132, 144 S.E.2d 509; Buckalew v. State Compensation Director, 149 W.Va. 239, 140 S.E.2d 453; McGeary v. State Compensation Director, 148 W.Va. 436, 135 S.E.2d 345; Kamensky v. State Compensation Commissioner, 148 W.V......
  • Pennington v. State Workmen's Compensation Com'r, No. 12934
    • United States
    • Supreme Court of West Virginia
    • July 7, 1970
    ...evidence in such cases. Dombrosky v. State Compensation Director, 149 W.Va. 343, 141 S.E.2d 85; Buckalew v. State Compensation Director, 149 W.Va. 239, 140 S.E.2d 453; McGeary v. State Compensation Director, 148 W.Va. 436, 135 S.E.2d 345; Eady v. State Compensation Commissioner, 148 W.Va. P......
  • Dombrosky v. State Compensation Director, No. 12393
    • United States
    • Supreme Court of West Virginia
    • March 23, 1965
    ...and applied the liberality rule in the interpretation of evidence in such cases. Buckalew v. State Compensation Director, W.Va., 140 S.E.2d 453; McGeary v. State Compensation Director, W.Va., 135 S.E.2d 345; Eady v. State Compensation Commissioner, 148 W.Va. 5, 132 S.E.2d 642; Turner v. Sta......
  • State ex rel. Sams v. Ohio Val. General Hospital Ass'n, No. 12361
    • United States
    • Supreme Court of West Virginia
    • February 23, 1965
    ...private hospital, which may, in its discretion, exclude any physician from its staff without being required to give any reason therefor. [149 W.Va. 239] The right to relief by mandamus must be clearly established. 'To warrant the court in granting this writ such a state of facts must be pre......
  • Request a trial to view additional results

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