Evans v. State Compensation Director, No. 12478

• Court: Supreme Court of West Virginia
• Writing for the Court: BERRY; CALHOUN
• Citation: 144 S.E.2d 663,150 W.Va. 161
• Parties: Virgie M. EVANS, Widow of Jess B. Evans, v. STATE COMPENSATION DIRECTOR, and Minden Sewell Coal Company.
• Decision Date: 19 October 1965
• Docket Number: No. 12478

Page 663

144 S.E.2d 663 150 W.Va. 161 Virgie M. EVANS, Widow of Jess B. Evans,
v.
STATE COMPENSATION DIRECTOR, and Minden Sewell Coal Company. No. 12478. Supreme Court of Appeals of West Virginia. Submitted Sept. 7, 1965.
Decided Oct. 19, 1965.

Page 664

Syllabus by the Court

1. Ordinarily, an objection to any incompetent, improper, or hearsay evidence should have been made at a trial or hearing before the admission of any such evidence can be later urged as an error on appeal.

2. Although an award of compensation cannot be had upon hearsay evidence alone, it is proper, under provisions of Code, 23-1-15, to be considered in connection with competent and corroborating testimony.

3. Where there is a causal connection between an injury received by an employee in the course of and resulting from his employment and his death, a claim for compensation by the widow of the deceased employee is compensable.

4. Where a personal injury suffered by an employee in the course of and resulting from his employment causes death within a period of six years and such disability is continuous from the date [150 W.Va. 162] of such injury until the date of death, a claim for compensation by the widow of the employee is compensable under the provisions of Code, 23-4-10, as amended, even though the employee worked for a period of time after receiving the injury while suffering from the disability caused by the injury, since the West Virginia statute does not require the disability to be total.

Thornhill, Thornhill & Kennedy, David T. Kennedy, Beckley, for appellant.

Mahan, Higgins, Thrift & Graney, Patrick C. Graney, Jr., Fayetteville, for appellee.

BERRY, Judge:

This is an appeal by the claimant Virgie M. Evans, the widow of Jess B. Evans, from an order of the Workmen's Compensation Appeal Board dated May 10, 1965, affirming the ruling of the Workmen's Compensation Director which denied compensation benefits to the claimant on the ground that her husband's death was not due to an injury received in the course of and as a result of his employment. The claimant's decedent, Jess B. Evans, died January 2, 1963. Application for benefits under the Workmen's Compensation Law was filed by the claimant on August 21, 1963, alleging that the decedent's death was due to an injury sustained by him on May 7, 1962, while he was working for the employer, Minden Sewell Coal Company. On September 12, 1963, the Workmen's Compensation Director rejected the claim on the

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ground that her husband's death was not due to an injury received in the course of and as a result of his employment, to which ruling a protest was filed and full hearings held, after which the Director on December 7, 1964, affirmed the former ruling which resulted in this appeal.

[150 W.Va. 163] The evidence taken at the hearings held in connection with this claim is to the effect that the claimant's decedent was apparently working alone as a tipple mechanic at the mine of the employer on May 7, 1962, and after returning to his home from work on that day he told his wife that he had fallen while at work and injured the left side of his back just above the waist. His wife testified that after he told her about falling and injuring himself he showed her a red bruise mark on his back in the area indicated above. She testified that he appeared to be nervous and in pain, that he took some aspirin and bufferin and went to bed; that at the request of her husband she called his foreman, Mr. Clifford Davis, and after getting Mr. Davis on the telephone she heard her husband tell him that he had been injured that day and probably would not be able to work the next day. (Mr. Davis did not testify at the hearings.) The claimant's decedent remained at home on May 8, 1962, but returned to work on May 9, 1962. William Harmon, a fellow-employee, testified that when he, Harmon, returned to work around May 14, 1962, after being confined to a hospital, claimant's decedent told him that he had fallen and injured his back while working and that he complained of his back hurting him at that time. Mrs. Evans stated that about a week or ten days after the injury her deceased husband was still having pain in his back which was causing him so much trouble that he went to see Dr. J. B. Thompson, the family doctor. Dr. Thompson testified that when the claimant's decedent came to see him for treatment he gave him a history that he had fallen on an angle iron while working for the employer on May 7, 1962. He stated that he observed no bruises on the body of claimant's decedent at the time he examined him, although he complained of soreness on the left side of his back and that he treated him for prostate trouble. This was done because he had treated him before for the same trouble and by virtue of his complaints he continued the same treatment. The claimant's decedent visited this doctor several times during May and June, 1962, and the treatment remained the same. On June 7, 1962, Dr. Thompson found blood in the urine. The claimant's decedent was referred to Dr. Ray M. Bobbitt, Huntington, West [150 W.Va. 164] Virginia, whom he visited on June 8, 1962. Dr. Bobbitt, after examining Mr. Evans, reported to Dr. Thompson that he felt he might have a low grade nephritis, but that it remained to be proved. Dr. Bobbitt recommended that he be hospitalized although this was not done because claimant's decedent was anxious to accumulate sufficient time in order to qualify for his pension, which was accomplished the latter part of June, 1962.

Claimant's decedent was admitted to the Beckley Memorial Hospital on August 3, 1962, where he was examined by Dr. W. A. Laqueur who diagnosed his trouble as nephrosis syndrome. He was released from this hospital on September 29, 1962, was readmitted on November 19, 1962 and remained until November 30, 1962, was readmitted December 11, 1962 and discharged on December 24, in order to spend Christmas at home. On January 2, 1963 he entered the hospital again and died a few hours after his admission. Dr. Laqueur performed an autopsy which revealed that prostatitis for which he had originally been treated had no connection with his illness and death. The examination of claimant's decedent while he was a patient in the Beckley Memorial Hospital was diagnosed as nephrotic syndrome and he was treated for nephrosis. The autopsy revealed that he had a renal thrombosis which resulted in nephrosis. It was Dr. Laqueur's opinion that trauma or injury to the back would cause the renal thrombosis resulting in nephrosis which could be clinically diagnosed.

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However, the thrombosis of the renal vein could not be diagnosed. The immediate cause of the death of claimant's decedent was 'bronchopneumonia, diffuse, bilateral, upper lobes, staphylococcic'. The treatment given to the claimant's decedent for nephrosis was very heavy doses of cortisone which did relieve his condition and prolonged his life. However, the heavy doses of cortisone made him immune to antibiotics and as a result thereof he developed a staph infection and pneumonia which was the immediate cause of his death. Dr. Laqueur's testimony clearly indicates that had not this treatment been administered the claimant's decedent would have died much sooner from nephrosis developed from the [150 W.Va. 165] renal thrombosis caused by an injury to his lower back. Dr. Laqueur's findings were supported by Dr. Peter Ladewig, a pathologist from Charleston, to whom the employer referred the medical record in this case. The last paragraph of Dr. Ladewig's report, which was filed in this case and made a part of the record, reads as follows:

'In summary, it is my opinion that Jess Evans' illness was triggered by the mine injury leading to a thrombosis of the renal vein which in turn caused a relentlessly progressing nephrotic syndrome treated, among others, by long-standing steroid administration; whereupon death ensued as a complication of both the original illness and its treatment.'

It is the contention of the claimant that the Workmen's Compensation Appeal Board erred in its finding that this claim was not compensable and thereby affirming the Workmen's Compensation Director's ruling.

It is the contention of the employer that the claimant has failed to prove by competent evidence: (1) That her deceased husband received an injury in the course of and as a result of his employment, and therefore the claim is not compensable; and (2) that the claimant has also failed to prove that the disability was continuous from the date of the alleged injury until the date of his death, and therefore the claim is not compensable under the provisions of Code, 23-4-10, as amended.

It is the employer's position that there is no evidence other than 'hearsay' in the record of this case to support the allegation that claimant's decedent suffered an injury while employed by the employer on May 7, 1962.

The recent case of Hoff v. State Compensation Commissioner, 148 W. Va. 33, 132 S.E.2d 772, is relied on to support this contention. In the Hoff case the only evidence supporting the claimant's contention that she was entitled to compensation as a result of injury was the statement of a deceased doctor contained in the file of the Commissioner. He did not testify at any hearing and was not subjected to cross examination. This ex parte statement, [150 W.Va. 166] even though it was made at the direction of the Commissioner under authority of Code, 23-4-8, as amended, was hearsay evidence, and this Court held that an award of compensation could not be made on hearsay evidence alone. However, there is much more evidence in the...