Forsyth v. State Compensation Com'r
| Decision Date | 24 November 1942 |
| Docket Number | 9366. |
| Citation | 23 S.E.2d 66,125 W.Va. 78 |
| Parties | FORSYTH v. STATE COMPENSATION COMMISSIONER et al. |
| Court | West Virginia Supreme Court |
James G. Jeter, Jr., of Charleston, for appellant.
File Scherer & File, of Beckley, for appellees.
This is an appeal from a ruling of the Workmen's Compensation Appeal Board, reversing an award made by the Compensation Commissioner to claimant, Denver Clyde Forsyth, on the ground that at the time of his injury claimant was violating a safety rule of his employer.
Forsyth was employed by the Koppers Coal Company as a coal loader in its No. 6 mine, at Stanaford, West Virginia, where he had worked only a short time, but he asserts that he had thirteen years' experience as a coal miner. He was injured on July 18, 1941, when he was caught beneath a slate fall.
About three hours prior to the accident, Forsyth's foreman was in the place where the accident occurred, at which time he instructed W. P Allen, also a coal loader working with Forsyth, to set posts three feet apart on ac count of the dangerous condition of the roof. The foreman and Allen say that Forsyth was in the immediate vicinity when the instructions were given, but Forsyth says he was some distance away and did not hear the specific instructions given, and that the foreman only gave him a general instruction or admonition to "make yourself safe". The foreman testified that the working place "was timbered to standard" at the time of his visit. A number of witnesses say that on examination of the place where the accident occurred a short time after the slate fall, it appeared to have been insufficiently timbered at the time of the accident.
A copy of the safety rules issued by the employer was given Forsyth but the rules had not been approved by the state compensation commissioner. The particular rule in question here is rule No. 4, reading as follows:
As stated, the Appeal Board found that Forsyth, at the time of his injury, was wilfully violating the safety rules of his employer, and reversed the Commissioner's award for that reason. The contention is now made that Forsyth wilfully disobeyed the rule herein quoted, and that such disobedience amounted to wilful misconduct, barring compensation under Code, 23-4-2, as amended by Acts 1937, c. 104. Under that statute wilful disobedience to safety rules and wilful misconduct are distinct and separate reasons for denial of compensation, and when wilful disobedience to rules or regulations is relied on to defeat a claim for compensation, approval of the rules or regulations by the commissioner must appear. Prince v. State Compensation Commissioner, 123 W.Va. 67, 13 S.E.2d 396.
Admitting that such rules were not approved by the commissioner at the time of the injury to Forsyth, the...
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