Eady v. State Compensation Commissioner

• Decision Date: 08 October 1963
• Docket Number: No. 12268,12268
• Citation: 132 S.E.2d 642,148 W.Va. 5
• Court: West Virginia Supreme Court
• Parties: Wayman EADY v. STATE COMPENSATION COMMISSIONER and Merrill Coal Company.

Page 642

132 S.E.2d 642

148 W.Va. 5

Wayman EADY v. STATE COMPENSATION COMMISSIONER and Merrill Coal Company.

No. 12268.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 10, 1963.

Decided Oct. 8, 1963.

Syllabus by the Court

'In order to reverse a finding of fact by the Workmen's Compensation Appeal Board it must appear from the proof upon which the board acted that the finding in question was plainly wrong.' Point 1, Syllabus, Vento v. State Compensation Commissioner, 130 W.Va. 577 .

Robert D. Phillips, Hager & Phillips, Logan, for appellant.

Jack W. Beddow, Logan, for appellee.

HAYMOND, Judge.

The claimant, Wayman Eady, of Logan, West Virginia, while an employee of the defendant, Merrill Coal Company, at its coal mine at Taplin, Logan County, West Virginia, was caught in a fall of slate and sustained injuries to his back, pelvis and bladder on June 19, 1953. He was treated at the Logan General Hospital for a fractured pelvis and injury to his lower back and bladder. He remained in the hospital for a period of four months, after which he was treated as an out-patient for his bladder condition for approximately one year. He has not returned to work since the accident and has worn a back brace since the date of his injury. He was granted a 40% permanent partial disability award on August 7, 1954. This award was not protested and was paid. Subsequently his claim was reopened at the instance of the claimant. He was examined by a doctor selected by the commissioner and after hearings, protests and an appeal to the Workmen's Compensation Appeal Board the original award was increased to 50% on August 27, 1958. After payment of this increased award the claim was again reopened at the instance of the claimant and after additional hearings the State Compensation Commissioner, on April 20, 1961, granted the claimant a total permanent disability award. Upon appeal to the Workmen's Compensation Appeal Board by the employer that award was reduced to 60% permanent partial disability on September 6, 1961. The application of the claimant for an appeal from that order was refused by this Court on November 13, 1961. After this award was paid the claim was again reopened at the instance of the claimant on July 3, 1962. At the direction of the commissioner the claimant was examined by a doctor selected by the commissioner and the commissioner refused to grant the claimant any additional compensation. The claimant protested the action of the commissioner in denying him additional compensation and after the introduction of additional evidence by both the claimant and the employer the commissioner affirmed his order denying additional compensation on April 10, 1963. Upon appeal by the claimant to the Workmen's Compensation Appeal Board the order of the commissioner refusing additional compensation was affirmed by order entered July 12, 1963. From that order of the appeal board this Court granted this appeal on July 31, 1963, upon the application of the claimant.

After the third and present reopening of the claim by the commissioner on July 3, 1962, the claimant at the direction of the commissioner was examined by a doctor selected by the commissioner. By order entered September 20, 1962, the commissioner denied the claimant any further compensation. The claimant protested this ruling of the commissioner and after the claim was heard by the commissioner upon additional evidence introduced by both the claimant and the employer the commissioner by order entered April 10, 1963 affirmed his order of September 20, 1962 and refused to grant the claimant any additional compensation.

Upon the hearing of the claim the claimant testified that his condition had become worse since the previous award, and the reports of several doctors, who had previously examined the claimant in connection with the earlier awards, and the report of one doctor, who examined him for the first time on November 24, 1962, were introduced in evidence. Two of the doctors who had previously examined the claimant in connection with the prior awards and who had stated that the claimant was then totally and permanently disabled adhered to that opinion but reported no new facts that had not been previously considered in connection with the prior awards, and the doctor who examined the claimant at the direction of the commissioner reported that, after examining the patient and reading the various medical reports in the record, the claimant had been overpaid for the results of the injury sustained by him on June 19, 1953. The doctor who examined the claimant on November 24, 1962 but who had not previously examined him, expressed the opinion that the claimant should be awarded total disability. Some of the doctors who had at least twice previously examined the claimant and had recommended less than the 60% permanent disability awarded him reported that there had been no change in the condition of the claimant since their last examination of the claimant a short time before the 60% award and that the claimant had been fully compensated and had in fact been overpaid for the results of his injury of June 19, 1953.

The claimant incorrectly contends that the condition of his bladder, which causes urinary difficulties and lack of normal control, had not been previously considered by the commissioner in connection with any prior award. On the contrary some reports of the doctors show the existence of that condition and the opinion of the appeal board indicates that because of that condition the previous award of 50% was increased to the final award of 60% when the appeal board reduced the total permanent disability award to an award of 60% permanent partial disability by its order of September 6, 1961.

It is clear that in the present reopening of the claim the claimant has utterly failed to show that there has been any aggravation or progression of his condition or any new fact since his award of 60% permanent partial disability which would entitle the claimant to any additional award.

The principle is well settled by the decisions of this Court that when the commissioner makes a finding of permanent partial disability and makes an award of compensation based upon such disability which becomes final, the case can not be reopened and no further award of compensation can be made unless there is a showing of a progression or an aggravation in claimant's condition, or some other fact or facts which were not previously considered by the commissioner in his former findings which would entitle the claimant to a greater benefit than he has already received. Blevins v. State Compensation Commissioner, 127 W.Va. 481, 33 S.E.2d 408; Meeks v. State Compensation Commissioner, 143 W.Va. 732, 104 S.E.2d 865; Igo v. State Compensation Commissioner, 128 W.Va. 402, 36 S.E.2d 690; Felty v. Compensation Commissioner, 124 W.Va. 75, 19 S.E.2d 90; Reed v. Compensation Commissioner, 124 W.Va. 37, 18 S.E.2d 793; Mason v. Workmen's Compensation Appeal Board, 121 W.Va. 444, 4 S.E.2d 791.

It may be, as this Court said in the Blevins case, that the claimant was not given the award to which he was entitled by the appeal board in its order of September 6, 1961, as there is much in the record to indicate...