Caldwell v. Workmen's Comp. Comm'r

• Decision Date: 11 September 1928
• Docket Number: (No. 6298)
• Citation: 106 W.Va. 14
• Court: West Virginia Supreme Court
• Parties: G. A. Caldwell v. Workmen's Compensation Commissioner

106 W.Va. 14

G. A. Caldwell

v.Workmen's Compensation Commissioner

(No. 6298)

Supreme Court of Appeals of West Virginia.

Submitted September 5, 1928.

Decided September 11, 1928.

1. Master and Servant Where Facts Relative to Injury Are

Clear and Undisputed Compensation Claimant is Entitled to Benefit of all Reasonable Inferences Therefrom.

Where, in a claim for compensation for injury to a workman because of an injury to him arising out of and received in the course of employment, the facts relative to the injury are clear and undisputed, the claimant is entitled to the benefit of all reasonable inferences (as upon a demurrer to evidence) to be drawn therefrom in support of his claim, (p. 17.)

(Workmen's Compensation Acts. C, J. § 114.)

2. Master and Servant Undisputed Facts Held to Warrant

Inference That Injury in Course of Employment Aggravated Previous Gunshot Wounds in Leg, and Was Therefore Compensable (Workmen's Compensation Act).

A case where the undisputed facts warrant the conclusion that loss of time was occasioned to the workman by an accidental injury received by him in the course of and arising out of his employment. (p. 15.)

(Workmen's Compensation Acts. C, J. § 114.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of Syllabi.)

Proceeding under the Workmen's Compensation Act (Acts 1915, c. 9, as amended by Acts Ex. Sess. 1915, c. 1) by G. A. Caldwell, employee, for personal injuries, opposed by the Island Creek Coal Company, employer. From a determination of the State Compensation Commissioner, the employee appeals.

Reversed, with directions.

Robert E. White, for appellant.

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

Hatcher, Judge:

Caldwell was an employee of Island Creek Coal Company, and seeks compensation for disability which he claims was the result of an injury received while so employed. The compensation commissioner found that the evidence was insufficient to establish that the injury caused the disability.

The injury upon which Caldwell bases his claim was described by him on June 23, 1927, to F. T. Burnham, an inspector of the Compensation Department, as follows: "We were unloading a Jeffrey drill off the truck, had raised it up about two feet, when the other boy slipped on some loose coal throwing all the weight on my left leg right above my knee, if my overalls had not been greasy it would have broken my leg. It bruised my leg and pained me a good deal, but I worked on and finished the night shift; and have not worked none since. * * * 1 believe that I waited until the 9th or 10th of April before calling Dr. Van Hoose in. * * * I thought that I was going to be able to go back to work and not be bothered by a doctor. * * * All the pain was in my knee, there was no swelling there, and that was why I thought I would be able to work in a few days." On February 27, 1928, Caldwell attempted to strengthen his claim by his own affidavit in which lie states that the drill fell on his leg, and by the affidavit of a fellow workman, D. L. White, to the effect that both White and the drill fell on Caldwell's leg, and that the combined weight of White and the drill was seven hundred pounds. The affidavits are entitled to little consideration, however, as it is hardly reasonable that so great a weight should have dropped two feet on Caldwell's leg and made only a superficial bruise. Dr. Van Hoose states that he found nothing at the time he examined Caldwell to account for the pain complained of, and advised him to go to a hospital. Caldwell entered the Holden Hospital on April 30th, where he was found to have an abscess above his left knee at the site of an old gun shot wound. An X-ray showed a number of shot still embedded in the soft parts of his leg and against the femur. An operation was performed May 11th, and Caldwell was discharged from the hospital on June 8th, though his knee was still draining. Dr. Lyons writing for the hos- pital states that the abscess was the result of the old gun shot wound, and that it is "merely possible" that the injury at the mine "set up the abscess." Dr. Van Hoose gives as his opinion: '' The present trouble may have been aggravated by the blow from the drill, but the trouble primarily is an old one." Caldwell states that he received the gun shot wound twelve years ago, and that since his recovery from the wound it had occasioned him no loss of time from his work. Dr. Van Hoose, however, in referring to the wounding of Caldwell, states that he "has had intermittent trouble since that time."

In The Practice of Surgery, a standard treatise by Dr. Russell Howard, an abscess is defined as a local collection of pus in the body, which is caused by one of the pyogenic organisms. The organism may become embedded in the tissues in several ways, one of which is by means of a wound (page 71). In this case the evidence points to the entry of the organism into the tissue at the time of the gunshot wound. Dr. Howard says: "Foreign bodies may remain for years in the tissues without causing the least inconvenience, but at any time infection by micro-organisms may ensue and an abscess form." (Page 63). If infection in such case may ensue at any time, then the formation of a subcutaneous abscess certainly does not depend on and has no necessary connection with a superficial bruise. In connection with Dr. Howard's book I have also examined Johnson's Surgical Diagnosis and Gould and Pile's Cyclopedia...