Dunlap v. State Workmen's Compensation Commissioner

• Decision Date: 08 October 1968
• Docket Number: No. 12750,12750
• Citation: 163 S.E.2d 605,152 W.Va. 359
• Court: West Virginia Supreme Court
• Parties: Junie P. DUNLAP v. STATE WORKMEN'S COMPENSATION COMMISSIONER, and Humphreys' Dairy Bar.

Page 605

163 S.E.2d 605

152 W.Va. 359

Junie P. DUNLAP v. STATE WORKMEN'S COMPENSATION COMMISSIONER, and Humphreys' Dairy Bar.

No. 12750.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 10, 1968.

Decided Oct. 8, 1968.

Syllabus by the Court

This Court will not reverse a finding of fact made by the Workmen's Compensation Appeal Board unless it appears from the proof upon which the appeal board acted that the finding is plainly wrong.' Syllabus, Hosey v. Workmen's Compensation Comm'r., 151 W.Va. 172, 151 S.E.2d 729.

Jeter, Jeter & Jeter, Charleston, for appellants.

Stone, Bowles, Kauffelt & McDavid, Charleston, for appellee.

CALHOUN, Judge:

This workmen's compensation case is before the Court on appeal by the employer, Humphreys' Dairy Bar, for review of an order entered by the Workmen's Compensation Appeal Board on May 7, 1968, which affirmed an order of the West Virginia Workmen's Compensation Commissioner entered January 9, 1968, by which, in reversing his prior order of July 11, 1967, he held that the claim was compensable. The principal question presented for decision on this appeal is whether the record sustains the finding of the appeal board that the claimant sustained an injury during the course of and as a result of her employment and that therefore her claim is compensable.

Humphreys' Dairy Bar, a corporation owned by H. P. Humphreys, his wife and their daughter, Mrs. Zoe H. Sarrett, operates a restaurant in Charleston, West Virginia. The claimant, Junie P. Dunlap, age 51, worked for about two weeks as a cook in the kitchen of the restaurant until May 18, 1967, when she claims to have sustained an injury to the lower area of her back. Her claim for compensation benefits states that the injury resulted from 'carrying a tray of chicken.' At the hearing, however, she stated that she was injured while getting a 'big pan out from under the shelves'. In her testimony, she stated that she bent over to pick up an empty 'pan', the chickens then not having been placed on it; and that 'when I raised up it hit me'. The undisputed testimony discloses that the 'pan' was an aluminum tray similar to trays used in cafeterias and that it weighed from one to two pounds.

On the day of the alleged injury, the claimant and Alma Hunt worked as cooks in the restaurant kitchen on the afternoon and evening shift from two o'clock until ten-thirty p.m. According to the claimant's testimony, she continued performing her work until quitting time despite the fact that she suffered pain in her back from the time of the alleged injury until she quit work. She walked home that night after work, but she testified that she went to bed as soon as she got home and that on the next day she called one of the girls employed at the restaurant to report that 'something was wrong' with her back and that she would be unable to report for work. May 18, 1967, was Thursday. The claimant testified that on the 'next Friday' she was taken in an ambulance to Staats Hospital in Charleston, where she remained four weeks and one day. While in the hospital she was attended by Dr. Dwight Staats and Dr. Charles Staats, who subsequently referred her to Dr. E. H. Heilman, an orthopedist. On October 21, 1967, the claimant commenced working as a cook at Staats Hospital. She was continuing in that employment when she testified on November 9, 1967, but in her testimony she stated that at that time she was 'still going to see' Dr. Heilman. She testified further that she had never had back trouble, never had 'serious back trouble,' and had never 'been treated for back trouble' prior to May 18, 1967.

Mrs. Janet Blanset, daughter of the claimant, testified that she lives in Memphis, Tennessee, and that she was visiting in the home of her mother on May 18, 1967; that she walked with her mother to the restaurant in the afternoon of that day; that at and before that time her mother did not complain of and apparently did not have any 'pain or back trouble'; that she ate the evening meal with her mother in a booth at the restaurant about six-thirty that evening; that she and her brother had to help their mother out of the booth after she finished eating the evening meal; that she and her brother assisted their mother in walking home after she quit work at ten-thirty p.m.; and that next morning the claimant 'couldn't sit down and she couldn't walk and she was in miserable pain.' The claimant and her daughter were the only witnesses who testified in support of the claim.

The record does not contain testimony of any medical doctor. However, the record contains a claim for medical bills incurred by Dr. E. D. Staats in the treatment of the claimant which was signed by him and stamped as received by the commissioner on June 15, 1967; and a similar claim for medical services rendered by Dr. Elwood H. Heilman, signed by him and stamped as received by the commissioner on July 17, 1967. In a blank space on the printed forms following the words 'Diagnosis of injury', Dr. Staats' statement contains the words 'Lower back strain' and Dr. Heilman's statement contains the words 'Lower Back Sprain'. The file contains a letter dated June 7, 1967, from Dr. E. D. Staats to the commissioner requesting permission to transfer the claimant as a partient to Dr. E. H. Heilman, an orthopedist. That letter also states that the patient was injured when she suffered a 'back strain' while carrying a heavy tray. The commissioner referred the claimant to Dr. Heilman with a request that he submit a report of his findings and recommendations. The file also contains a letter dated July 11, 1967, directed to the medical division of the workmen's compensation 'department' by Dr. E. H. Heilman, in which he stated that the claimant had suffered a 'great flare-up of her symptoms from her lumbosacral sprain.' In the letter the doctor further stated that 'Her symptoms were those of lumboscral sprain and her recovery was quite slow. * * * I prescribed a lumboscral corset * * *.' On August 11, 1967, Dr. Heilman wrote a similar letter in which he reported, among other facts and findings, that the claimant was advised to continue wearing her corset, to rest at home as possible, to use the board under her mattress, to use heat on her back and to return to the doctor in two weeks.

Mrs. H. P. Humphreys testified that when the claimant applied for employment at Humphreys' Dairy Bar she stated that she occasionally had backache. Mrs. Humphreys was unable to recall whether she was at the restaurant at the time the claimant is alleged to have sustained an injury to her back, but she testified that several days thereafter the claimant called the witness by telephone and reported that she was 'ill'. H. P. Humphreys testified that he is at the restaurant every day, seven days each week, and that the claimant did not report to him that she had sustained an injury to her back. Alma Hunt testified that she was employed as an evening cook for Humphreys' Dairy Bar and in that capacity she worked with the claimant in the kitchen; that she did not recall the claimant's having complained of pain in her back at any time; and that she 'didn't know she had hurt her back in there, if she had.' Alma Hunt further testified that while she and the claimant were working as cooks in the kitchen, the salad girl and waitresses came to the kitchen from time to time and that the dishwasher worked there after seven-thirty in the evening. There is no evidence that the claimant reported her alleged injury or complained of...