Butch v. State Comp. Comm'r.

• Decision Date: 13 September 1932
• Docket Number: (No. 7406)
• Citation: 112 W.Va. 493
• Court: West Virginia Supreme Court
• Parties: John Butch v. State Compensation Commissioner et al.

112 W.Va. 493

John Butch

v.State Compensation Commissioner et al.

(No. 7406)

Supreme Court of Appeals of West Virginia.

Submitted September 7, . 1932.

Decided September 13, 1932.

(Rehearing denied October 17, 1932)

Master and Servant Mandamus

Where the state compensation commissioner has made an award which goes to the basis of the claim for compensation, there must be objection to his award within ten days from the receipt of the notice of his award, else his award becomes final under Official Code, 23-5-1; and mandamus will not lie to compel the setting aside of such award made final by the statute.

Original proceeding in mandamus by John Butch against the State Compensation Commisioner.

Ellison & Ellison, for relator.

Howard B. Lee, Attorney General, and B. Dennis Steed, Assistant Attorney General, for respondents.

Lively, Judge:

The relator, John Butch, prays for manadamus against the state compensation commissioner to compel him to set aside his final order of April 18, 1932, and to hear his evidence on application for increased compensation.

Relator was working in the coal mine of the Guyan Eagle Coal Company and was injured by a slate fall on April 14,

1930. He was sent to a hospital in the city of Logan and was examined by Dr. Brewer of that hospital who made a diagnosis of his injuries and reported them to be a fracture of the right ramis and ischium; and fractures of the great toe and other toes of the right foot. His great, second and third toes of his right foot were amputated and treatment given to the injury to back and pelvis. On August 11, 1930, claimant made application for compensation. In March,

1931, Dr. Brewer reported the result of his treatment of claimant which he described, and reported satisfactory results, stating that Butch complained of pains in his back, that he walked with an odd limp, and complained of pains in his foot; and suggested that he be called before the department for a determination of disability to the claimant's back. Dr. Lambert was directed to x-ray claimant's pelvis and made a report of his examination on October 16, 1931, stating that there was a transverse fracture of right ischium and that the bones had healed in slight abnormal position and that the x-ray showed no evidence of disease of the osseous tissue. Dr. Lawson also examined the claimant and made a report to the commissioner on October 9, 1931, in which he described the injury and the treatment, saying the treatment had proven satisfactory and that the claimant's condition then was good and that he was able to return to work. He again made a report to the commissioner on October 15, 1931, again describing the injuries and treatment, stating that the present condition of the claimant was good; that he was able to return to work and that further hospitalization and surgery would not improve his condition, nor lessen his disability. These reports of Dr. Lawson were received before the x-ray examination was ordered to be made by Dr. Lambert who reported as stated above. However, on March 7, 1931, the claimant's petition for compensation was passed upon and he was awarded compensation for 72 weeks at $12.60 per week, which the commissioner found awardable under an eighteen per cent, disability. This compensation was paid, the last payment being September 6, 1931, when the case was closed. On December 24, 1931, Butch was again examined by the compensation department physician, who reported the injury to the right foot, showing upon the re-examination that he had a fracture of the pelvis in the area of the right ischium which had healed and was then causing no difficulty and in fair position and that the pelvis was causing no difficulty; that the amputation of his toes was successful, the stumps had healed and in good condition, and that the main portion of the foot was not enlarged. After this examination, Butch was advised that he had been fully compensated for the disability and that his claim would stand closed as of September 6, 1931, the date of the last payment of his award. On February 8, 1932, Butch filed a formal petition detailing his injuries and what had been done, stating that he was unable to do any work because of these injuries; and that he was unable to perform labor because of injuries to his pelvis and back; and that he had suffered a permanent total disability. This application was accompanied by a statement from two physicians of Charleston, namely, Dr. Hamrick and Dr. Spaulding. Dr. Hamrick reported pain on pressure and motion of lumbar region; and proliferation of bone in region of lumbar vertabrae more marked over left side, and that x-ray of lumbar spine and ischium showed definite pathology, and gave it as his opinion that the man was unable to do manual labor. Dr. Spaulding's report was practically the same as that of Dr. Hamrick, except that he found no definite evidence of injury involving the bones of the pelvis. His conelusion was that the man had a "chronic arthritis of the spine". On February 8, 1932, Butch was advised by the commissioner that his petition (called affidavit) and report...