Deverick v. State Compensation Director, 12487
| Decision Date | 07 December 1965 |
| Docket Number | No. 12487,12487 |
| Citation | 150 W.Va. 145,144 S.E.2d 498 |
| Court | West Virginia Supreme Court |
| Parties | Alta A. DEVERICK v. STATE COMPENSATION DIRECTOR, and Limbach Company. |
Syllabus by the Court
1. 'While informality in the presentation of evidence is permitted in workmen's compensation cases and a rule of liberality in favor of the claimant will be observed in appraising the evidence presented, still the burden of establishing a workmen's compensation claim rests upon the one who asserts it and the well-established rule of liberality cannot be considered to take the place of proper and satisfactory proof.' Point 2, Syllabus, Hayes v. State Compensation Director et al., 149 W.Va. 220 .
2. 'An award of a claim cannot be made in a workmen's compensation case unless it is supported by satisfactory proof that workman sustained a personal injury in the course of and resulting from his employment.' Point 3, Syllabus, Hayes v. State Compensation Director et al., 149 W.Va. 220 .
3. In order to establish compensability an employee who suffers a disability in the course of his employment must show by competent evidence that there was a causal connection between such disability and his employment.
4. An order of the workmen's compensation appeal board, approving an order of the state compensation commissioner, which is not supported by the evidence and for that reason is plainly wrong, will be reversed by this Court on appeal.
Steptoe & Johnson, Kingsley R. Smith, Clarksburg, for appellant.
Dayton, Campbell & Love, George W. S. Grove, Jr., Charleston, for appellee.
This is an appeal by the Limbach Company, a corporation, former employer of claimant Alta A. Deverick, from a decision of the workmen's compensation appeal board of May 10, 1965, which affirmed an order of the state compensation director (now commissioner) dated December 14, 1964, holding that the claimant received a compensable injury on March 14, 1963. Upon petition by the employer an appeal was granted by this Court on July 7, 1965.
The claimant, Alta A. Deverick, was employed by the Limbach Company as a sheet metal worker on a certain construction job at the Westinghouse plant in Fairmont, West Virginia. He reported for work on March 11, 1963 and immediately engaged in the tasks assigned him. While there was much testimony as to the claimant's duties or type of work to be performed, it is generally agreed that for the first two days of this employment his work consisted principally of unloading trucks and carrying certain equipment from the basement of the building in which he was working to the first floor where certain ventilation duct work was being carried on. The claimant was sixty two years of age when he was employed, and was of slight build. He described the work he was doing as 'bull gang work'. While there was some difference of opinion expressed, it appears from the evidence that the loads which this claimant carried from the basement to the first floor weighed from thirty five to sixty pounds. It is undisputed that he worked steadily and performed any task assigned to him. It is established by the evidence that the work performed by Deverick was normal for that of the average sheet metal worker.
The claimant testified that on his fourth day of work, March 14, 1963, he reported at eight o'clock and, after assisting in the unloading of a truck, was engaged with one William Henderson in installing certain ventilation ducts. He stated that he and Henderson were called off of that job and were requested to assist the team of Smith and Bailey in erecting a large duct. On this job, according to his testimony, he and Henderson helped to lift a piece of metal, weighing about three hundred pounds, from the floor up to a scaffold approximately twelve feet high, and then assisted in holding the metal up to the ceiling while it was attached by Smith and Bailey. They were assisted in lifting this metal by the use of a rope and pulley.
Mr. Henderson testified that he worked with the claimant on the Westinghouse job; that they were engaged in average sheet metal work, the materials handled by them being neither light nor heavy; and that Deverick was not required to nor did he do any work that was particularly strenuous. He further testified that he recalled having worked with Smith and Bailey on a four man team in the installation of heavy ducts but could not remember who the fourth man was. Although he could not recall the date upon which that job was done, he believed it was after the claimant had left this employment.
The evidence reveals that at about 11:25 on the morning of March 14, 1963, while the claimant was lifting certain small angle irons to Henderson, who was on a scaffold, Henderson noticed that the claimant was pale and appeared to be ill. He immediately suggested that Deverick lie down on a workbench which was near their work area. The claimant did lie down and indicated that he felt a numbness in his left leg and realized that he could not move it in the usual manner. The plant nurse was called and within a short time an ambulance took the claimant to the Fairmont General Hospital.
Upon arrival at the hospital the claimant was treated by Doctor S. W. Parks. On form C.D. 7, Physician's Preliminary Report to the workmen's compensation commissioner, the diagnosis of injury was listed as 'cerebral thrombosis while on job'. In response to the question on that form 'Is claimant suffering with any acute or chronic disease which will, in your opinion, retard recovery from this injury?', Doctor Parks wrote, 'Arteriosclerosis'. There is no testimony in the record of this proceeding by Doctor Parks or by any other physician.
The claimant testified that so far as he knew he had been in good health prior to this occurrence and had worked regularly when work was available. He had not, however, worked for approximately eight months prior to this employment because no work was available.
On July 29, 1963 the claimant filed an application for benefits under the workmen's compensation act. The director, by an order dated August 22, 1963, held the injury compensable. Thereafter the employer filed its protest to such holding and hearings were held. At the conclusion of the hearings the director affirmed his original order and an appeal was taken to the appeal board. The appeal board...
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