Clark v. State Workmen's Compensation Com'r, No. 13166

CourtSupreme Court of West Virginia
Writing for the CourtCAPLAN
Citation187 S.E.2d 213,155 W.Va. 726
Decision Date14 March 1972
Docket NumberNo. 13166
PartiesMary Lou CLARK, widow, etc. v. STATE WORKMEN'S COMPENSATION COMMISSIONER, and Union Carbide Corporation, a Corporation.

Page 213

187 S.E.2d 213
155 W.Va. 726
Mary Lou CLARK, widow, etc.
v.
STATE WORKMEN'S COMPENSATION COMMISSIONER, and Union Carbide
Corporation, a Corporation.
No. 13166.
Supreme Court of Appeals of West Virginia.
Submitted Jan. 18, 1972.
Decided March 14, 1972.

Page 214

Syllabus by the Court

1. 'The right to workmen's compensation benefits is created wholly by statute. Under the workmen's compensation statutes of this state, a claimant has a right to receive benefits and the workmen's compensation commissioner may pay benefits to a claimant only as authorized by statute.' 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).

[155 W.Va. 727] 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.

CAPLAN, Judge:

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 [155 W.Va. 728] 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

Page 215

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.

[155 W.Va. 729] 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, 'sufficient medical evidence in this case to warrant the conclusions that the causes of the acute myeloblastic leukemia cannot with some degree of certainty be attributed to anything outside of the employment of claimant's husband and that it is just as likely that the employment environment caused the fatal disease as other outside factors. Under these circumstances, we believe that preumptions should be resolved in favor of the claimant rather than against her and the claim held to be compensable. Vankirk v. (State Compensation) Commissioner, 144 W.Va. 447 (108 S.E.2d 567); Pripich v. (State Compensation) Commissioner, 112 W.Va. 540 (166 S.E. 4); Pannell v. (State Compensation) Commissioner, 126 W.Va. 725 (30 S.E.2d 129).' 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....

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15 practice notes
  • Pasquale v. Ohio Power Co., No. 20264
    • United States
    • Supreme Court of West Virginia
    • 15 Mayo 1992
    ...(workers' compensation controlled by statute and not by common law); Syllabus Point 1, Clark v. State Workmen's Compensation Comm'r, 155 W.Va. 726, 187 S.E.2d 213 (1972) (the right to workers' compensation benefits is created wholly by 11 The full text of Section 4123.74 (1991) of the Ohio ......
  • Repass v. WORKERS'COMPENSATION DIV., No. 27730
    • United States
    • West Virginia Supreme Court
    • 28 Junio 2002
    ...State Workmen's Comp. Comm'r, 153 W.Va. 288, 297, 168 S.E.2d 723, 729 (1969). Accord Syl. pt. 3, Clark v. State Workmen's Comp. Comm'r, 155 W.Va. 726, 187 S.E.2d 213 (1972); Smith v. State Workmen's Comp. Comm'r, 155 W.Va. 883, 888, 189 S.E.2d 838, 841 (1972) (per curiam); Syl. pt. 3, Staub......
  • Rhodes v. WORKERS'COMPENSATION DIV., No. 27831.
    • United States
    • Supreme Court of West Virginia
    • 11 Diciembre 2000
    ...v. State Workmen's Compensation Commissioner, 153 W.Va. 337[, 168 S.E.2d 730 (1969)]. Syl. pt. 3, Clark v. State Workmen's Comp. Comm'r, 155 W.Va. 726, 187 S.E.2d 213 19. W. Va.Code § 23-4-8c(d) (1998) states: If either party objects to the whole or any part of such findings and conclusions......
  • Jordan v. State Workmen's Compensation Commissioner, No. 13172
    • United States
    • Supreme Court of West Virginia
    • 9 Octubre 1972
    ...v. State Workmen's Compensation Commissioner, W.Va., 189 S.E.2d 838 (1972); Clark v. State Workmen's Compensation Commissioner, W.Va., 187 S.E.2d 213 On the other hand, the board could just as easily on these facts found the claim to be compensable as it did in the Dunlap case. We do not ho......
  • Request a trial to view additional results
15 cases
  • Pasquale v. Ohio Power Co., No. 20264
    • United States
    • Supreme Court of West Virginia
    • 15 Mayo 1992
    ...(workers' compensation controlled by statute and not by common law); Syllabus Point 1, Clark v. State Workmen's Compensation Comm'r, 155 W.Va. 726, 187 S.E.2d 213 (1972) (the right to workers' compensation benefits is created wholly by 11 The full text of Section 4123.74 (1991) of the Ohio ......
  • Repass v. WORKERS'COMPENSATION DIV., No. 27730
    • United States
    • West Virginia Supreme Court
    • 28 Junio 2002
    ...State Workmen's Comp. Comm'r, 153 W.Va. 288, 297, 168 S.E.2d 723, 729 (1969). Accord Syl. pt. 3, Clark v. State Workmen's Comp. Comm'r, 155 W.Va. 726, 187 S.E.2d 213 (1972); Smith v. State Workmen's Comp. Comm'r, 155 W.Va. 883, 888, 189 S.E.2d 838, 841 (1972) (per curiam); Syl. pt. 3, Staub......
  • Rhodes v. WORKERS'COMPENSATION DIV., No. 27831.
    • United States
    • Supreme Court of West Virginia
    • 11 Diciembre 2000
    ...v. State Workmen's Compensation Commissioner, 153 W.Va. 337[, 168 S.E.2d 730 (1969)]. Syl. pt. 3, Clark v. State Workmen's Comp. Comm'r, 155 W.Va. 726, 187 S.E.2d 213 19. W. Va.Code § 23-4-8c(d) (1998) states: If either party objects to the whole or any part of such findings and conclusions......
  • Jordan v. State Workmen's Compensation Commissioner, No. 13172
    • United States
    • Supreme Court of West Virginia
    • 9 Octubre 1972
    ...v. State Workmen's Compensation Commissioner, W.Va., 189 S.E.2d 838 (1972); Clark v. State Workmen's Compensation Commissioner, W.Va., 187 S.E.2d 213 On the other hand, the board could just as easily on these facts found the claim to be compensable as it did in the Dunlap case. We do not ho......
  • Request a trial to view additional results

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