Dowdy v. State Compensation Com'r

• Decision Date: 07 June 1932
• Docket Number: 7321.
• Citation: 164 S.E. 495,112 W.Va. 428
• Parties: DOWDY v. STATE COMPENSATION COMMISSIONER et al.
• Court: West Virginia Supreme Court

164 S.E. 495

112 W.Va. 428

DOWDY v. STATE COMPENSATION COMMISSIONER et al.

No. 7321.

Supreme Court of Appeals of West Virginia.

June 7, 1932

Submitted May 25, 1932.

Syllabus by the Court.

Finding of fact by compensation commissioner should be treated as finding of judge or verdict of jury.

Generally finding of fact by compensation commissioner will not be set aside, if supported by substantial evidence.

Compensation commissioner's finding, to effect that neurofibromatosis from which claimant was suffering was not caused by slate fall in course of employment, held supported by substantial evidence.

A finding of fact made by the state compensation commissioner should be treated as a finding of a judge, or the verdict of a jury, and will not, as a general rule, be set aside, if there is substantial evidence to support it. Heaton v Commissioner, 106 W.Va. 563, 146 S.E. 368; Martin v Commissioner, 107 W.Va. 583, 149 S.E. 824.

Proceeding under the Workmen's Compensation Act by Will Dowdy claimant, against the Harvey Coal & Coke Company, employer. From an adverse decision by the State Compensation Commissioner, the claimant appeals.

Affirmed.

Hubard & Bacon and A. L. Russell, all of Fayetteville, for appellant.

Howard B. Lee, Atty. Gen., R. Dennis Steed, Asst. Atty. Gen., for State Compensation Commissioner.

Dillon, Mahan & Holt, of Fayetteville, for Harvey Coal & Coke Co.

WOODS, J.

Will Dowdy was injured May 4, 1918, by a slate fall; the employer's office copy of its report of the accident (the original having been destroyed in the Capitol fire of 1921) showing a dislocation of the left hip and an extensive contusion of the left knee. Compensation was paid for 8 2/7 weeks and the claim closed; claimant being reported able to resume labor. The case was reopened in 1931, and, after a hearing, the commissioner found claimant's present paralytic condition to be the result of an invasion of the central nervous system by Von Recklinghausen's disease also spoken of as neurofibromatosis, with which claimant has had outward manifestations in the form of multiple tumors on the body since childhood. It is the contention of claimant, however, that his condition, which is accompanied by abnormal reflexes, points to a spinal cord injury caused by the 1918 slate fall. The evidence of such an injury rests upon the testimony of Dr. Hogg, the company physician at the time of the accident, to the effect that there was no visible sign of injury to the back other than contusion, which shows it to be in the lumbar region about the third or fourth vertebra; and a statement by Dr. Coleman that he has some recollection of having made an examination of claimant's back prior to 1921, the date he (Coleman) severed relations with the Beckley Hospital, and that, if his memory serves him right (his records having been destroyed), there was some injury shown to the lumbar spine. Present X-rays failed to reveal any evidence of injury to the bony framework, although testimony was introduced to the effect that there could be an injury to the spinal cord without visible injury to the bony framework encasing it.

The position taken by counsel for claimant before the commissioner, and reasserted on this appeal, is based on the assumption that it is an established fact that claimant's present condition appeared immediately after the accident. This is, as we read the record, a disputed fact. Dr. Hogg, who, on July 8, 1918, reported claimant as able to return to work, testified that he made the tests that are usual and saw no evidence of spinal cord lesion; that, if he had, he would not have sent claimant back to work; and that claimant at that time had the usual limp which would be expected from the hip and knee injury. At the time of the injury, and for a great many months thereafter there was no evidence, so far as Dr. Hogg was able to find, of any pressure on the spinal cord. However, he did find pressure on the cord in 1920, which he states was due to neurofibromatosis. The records show that claimant returned to work with his former employer, Harvey Coal & Coke Company, on July 23, 1918, where he worked until October 16, 1918,...