Cherry v. State Compensation Com'r

• Citation: 174 S.E. 889,115 W.Va. 180
• Decision Date: 05 June 1934
• Docket Number: 7950.
• Parties: CHERRY v. STATE COMPENSATION COMMISSIONER.
• Court: West Virginia Supreme Court

174 S.E. 889

115 W.Va. 180

CHERRY v. STATE COMPENSATION COMMISSIONER.

No. 7950.

Supreme Court of Appeals of West Virginia.

June 5, 1934

Submitted May 16, 1934.

Syllabus by the Court.

"The limitation in section 40, chapter 71, Acts 1929, to the effect that no further award may be made in cases of non-fatal injuries, except within one year after the commissioner shall have made the last payment in any permanent disability case is not retroactive in its operation and does not affect the continuing jurisdiction of the commissioner in cases which had their origin prior to its enactment." Carbon Fuel Company v. State Compensation Commissioner, 111 W.Va. 639, 163 S.E. 62.

Appeal from State Compensation Commissioner.

Proceeding by James Cherry under the Workmen's Compensation Act to recover compensation for injuries sustained while an employee of the Hutchinson Coal Company. From an order of the State Compensation Commissioner refusing an application for compensation, the claimant appeals.

Order reversed, and cause remanded.

Deem & Moist, of Clarksburg, for appellant.

Homer A. Holt, Atty. Gen., and Kenneth E. Hines, Asst. Atty. Gen for State Compensation Commissioner.

Blue Dayton & Campbell, Arthur S. Dayton, Wm. F. Blue, and Charles M. Love, all of Charleston, for Hutchinson Coal Co.

LITZ Judge.

This is an appeal from an order of the state compensation commissioner, refusing an application for compensation.

The claimant, James Cherry, sustained a fracture of the second lumbar vertebra and other injuries June 22, 1927, while employed in the mine of Hutchinson Coal Company at Hepzibah Harrison county, and, after receiving medical treatment and compensation for approximately ten weeks, returned to work September 12, 1927. He continued thereafter in the service of the coal company, except for an interim of ten months (while engaged with the Seminole Gas Company) until January 15, 1931, when he was compelled to stop work, because of weakened condition of his back, and has not since performed any sort of labor. Dr. C. S. Bates, the company physician, visited Cherry shortly thereafter, and, finding him in bed, "complaining with his back," sent him to a hospital at Clarksburg, where he was treated for several days by Dr. H. H. Haynes. Returning home, claimant was again treated by Dr. Bates for several days. Apparently he is permanently and totally disabled.

By letter of February 5, 1931, Charles W. Moore, of Clarksburg, as attorney for claimant, informed the commissioner that he seemed to have a broken vertebra and was not able to work; and, referring to the serial number of the original claim, solicited advice concerning its status. Upon receiving from the commissioner the desired information, Mr. Moore requested permission of the commissioner to offer evidence showing that claimant had become permanently disabled. In the latter part of March, 1931, an inspector of the compensation department, investigating the claim, secured the affidavit of Cherry, substantially attributing his disability to the injury of June 22, 1927; the affidavit of J. A. Haislip, superintendent of the mine, stating that he did not know Cherry had ceased work until advised by Dr. Bates that he had been called to see him; the affidavit of Dr. Bates that at the time he attended claimant in January, 1931, his back was "very tender and swollen," but there was no evidence of a recent injury, and that Cherry at the time merely said his back had "gone bad on him." After examining claimant on April 25, 1931, Dr. Haynes advised the commissioner that the teeth and tonsils of claimant were diseased and should be removed. This was done, without apparent improvement to his health. Dr. Charles T. Francis, R ntgenologist of Cook Hospital at Fairmont, after making an X-ray examination of claimant in the lumbar region, reported to the commissioner in writing, June 12, 1931: "A radiogram taken through the lateral aspect reveals marked pathology. There is a kyphosis present with the anterior border of the body of the second lumbar being much shallower in depth than that of the posterior. There is quite marked lipping of the anterior margin of the superior articular surface of the second lumbar but the intravertebral space between the first and second lumbar has been preserved. The kyphosis has resulted in a markedly increased distance between the spinous processes of the first and second lumbar. The radiogram reveals some evidence of bony change of the superior and inferior articular facets connecting the first and second lumbar."

By letter dated September 14, 1931, Ronald F. Moist, of Clarksburg, as attorney for claimant, advised the commissioner that his condition had not improved, and inclosed statements of Dr. Russel S. Coffindaffer of Shinnston and Dr. Haynes in which they attributed the disability to the...