Clark v. State Workmen's Compensation Com'r
Citation | 187 S.E.2d 213,155 W.Va. 726 |
Decision Date | 14 March 1972 |
Docket Number | No. 13166,13166 |
Parties | Mary Lou CLARK, widow, etc. v. STATE WORKMEN'S COMPENSATION COMMISSIONER, and Union Carbide Corporation, a Corporation. |
Court | Supreme Court of West Virginia |
Syllabus by the Court
1. Point 1, Syllabus, Bounds v. State Workmen's Compensation Commissioner, 153 W.Va. 670 (172 S.E.2d 379).
2. 'A claimant in a workmen's compensation proceeding has the burden of proving his claim.' Point 1, Syllabus, Staubs v. State Workmen's Compensation Commissioner, 153 W.Va. 337 (168 S.E.2d 730).
3. 'Though the general rule in workmen's compensation cases is that the evidence will be construed liberally in favor of the claimant, the rule does not relieve the claimant of the burden of proving his claim and such rule can not take the place of proper and satisfactory proof.' Point 3, Syllabus, Staubs v. State Workmen's Compensation Commissioner, 153 W.Va. 337 (168 S.E.2d 730).
4. Where proof offered by a claimant to establish his claim is based wholly on speculation, such proof is unsatisfactory and is inadequate to sustain the claim.
5. An order of the Workmen's Compensation Appeal Board will be reversed by this Court on appeal where it is not supported by the evidence or where the legal conclusions of the board are erroneous.
Benjamin D. Tissue, South Charleston, for appellant.
Kay, Casto & Chaney, George Sharp, Charleston, for appellee.
This is an appeal by the employer, Union Carbide Corporation, from an order of the Workmen's Compensation Appeal Board, dated September 29, 1971, which affirmed an order of the Workmen's Compensation Commissioner awarding benefits to the widow of a deceased employee of the aforesaid employer. The claimant is Mary Lou Clark, widow of the deceased employee, Frank E. Clark.
For approximately thirteen years prior to the date of his death on October 28, 1963, Frank E. Clark was employed as a pipefitter at the Institute plant of Union Carbide Corporation. In such employment his work consisted principally of the installation of new pipe and the repair of existing facilities. Essentially his work was confined to two areas of the plant, namely, the gas area and the fine chemical area. Mr. Clark was in no manner associated with the actual production of chemicals. According to the testimony of Mr. Richard Yelton, production manager of the area in which Mr. Clark worked, the facilities and pipes upon which the latter worked were cleaned and purged of chemicals prior to the performance of any maintenance work.
It appears from the record that Mr. Clark was treated in the plant dispensary for exposure to chemicals on the following occasions: On July 11, 1954 for exposure to hydrogen cyanide; on December 23, 1954 for exposure to ethylene cyanophdrin; and on October 24, 1953 for exposure to ethylene oxide. Two of Mr. Clark's fellow employees testified that they did not recall that Mr. Clark had at any time been seriously exposed to chemicals. There is no showing in the record that such exposures resulted in any extended hospitalization or treatment.
On December 20, 1962 Mr. Clark reported to the medical department of the plant for treatment of a laceration to his right index finger. This injury occurred during his employment when a knife with which he was removing a gasket from a flange slipped and cut his finger. He was given emergency treatment and then sent to Thomas Memorial Hospital where the laceration was sutured. He was seen again at the plant dispensary on December 27, at which time Dr. Sexton, the medical director, reported that his right index finger was 'edematous, tenderness, with hemogenic blebs with crepitus.' Although this injury to his finger did not heal properly, Mr. Clark was released to return to work on February 11, 1963.
Dr. James H. Getzen, who became Mr. Clark's treating physician, testified that he first saw Mr. Clark on April 7, 1963. The reason for his visit was 'a persistent sore in the finger, and because of his change in blood count with anemia and temperature elevation.' Dr. Getzen diagnosed his illness as myeloblastic leukemia. The following questions and answers were adduced at the hearing:
'Q.--What is the cause of acute myeloblastic leukemia?
A.--This right now is in a state of flux. It is definitely unknown. It is an unknown caused disease.
Q--The etiology of acute myeloblastic leukemia is unknown?
A.--Right.
Q.--This is generally accepted as the view of the medical profession at large?
A.--Right.
Q.--And you share that opinion and view?
A--Right.'
Dr. Getzen referred Mr. Clark to Dr. Charles A. Doan, internationally recognized authority on hemotology and Emeritus Director of Hemotology at Ohio State University. It was Dr. Doan's report upon which the commissioner and the board principally relied to grant the widow's claim.
The appeal board affirming the order of the commissioner awarding such benefits said, .' It is from this order that the employer prosecutes this appeal.
The question presented for decision on this appeal is whether Frank E. Clark died from an occupational disease which occurred in the course of and as a result of his employment.
The right to workmen's compensation benefits is wholly statutory and any such benefits may be paid to a claimant only as authorized by law. Bounds v. State Workmen's Compensation Commissioner, 153 W.Va. 670, 172 S.E.2d 379; Taylor v. State Workmen's Compensation Commissioner, 152 W.Va. 609, 165 S.E.2d 613; Bailes v. State Workmen's Compensation Commissioner, 152 W.Va. 210, 161 S.E.2d 261. Pertinent to the decision of this case are the provisions of Code, 1931, 23--4--1, as amended, which read in part as follows:
(Italics supplied)
This Court consistently has held that the burden of establishing a claim rests upon the person who asserts it. Barnett v. State Workmen's Compensation Commissioner, 153 W.Va. 796, 172 S.E.2d 698; Eady v. State Compensation Commissioner, 148 W.Va. 5, 132 S.E.2d 642; Machala v. State Compensation Commissioner, 109 W.Va. 413, 155 S.E. 169. Therefore, in the instant case, it is incumbent upon the claimant to establish by evidence that the deceased employee died from an occupational disease which occurred in the course of and as a result of his employment.
As noted above, Dr. Getzen testified that the cause of acute myeloblastic leukemia is 'definitely unknown'. That this is the generally accepted view of the medical profession at large is undisputed in this proceeding. All of the doctors who testified on this matter, including Dr. Doan, are in agreement that the etiology of leukemia is unknown. That leukemia is an...
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