Gay Coal & Coke Co. v. Workmen's Compensation Com'r

• Decision Date: 23 March 1939
• Docket Number: 8873.
• Citation: 2 S.E.2d 265,121 W.Va. 200
• Parties: GAY COAL & COKE CO. v. WORKMEN'S COMPENSATION COM'R.
• Court: West Virginia Supreme Court

2 S.E.2d 265

121 W.Va. 200

GAY COAL & COKE CO. v. WORKMEN'S COMPENSATION COM'R.

No. 8873.

Supreme Court of Appeals of West Virginia.

March 23, 1939

Charles L. Estep, of Logan, for appellant.

Clarence W. Meadows, Atty. Gen., Marlyn Lugar, Asst. Atty. Gen., and Ira P. Hager, of Logan, for appellee.

MAXWELL Judge.

From a finding by the Compensation Appeal Board of permanent total disability in favor of Howard Shepherd, claimant, Gay Coal & Coke Company, employer, prosecutes this appeal.

August 10, 1931, the claimant suffered an injury to his right leg necessitating amputation about two inches above the knee, for which he was awarded fifty per centum permanent disability. Before the expiration of the payment of that award osteomyelitis developed in the remaining portion of the right thigh and spread to the left forearm, requiring bone surgery of the radius and incisions of the elbow for purpose of drainage. The latter operations have resulted in permanent deformity of the left forearm and wrist, with almost complete fixation of the wrist joint, and limited strength and use of the hand.

Upon the development of osteomyelitis of the left arm and attendant results, the Compensation Commissioner on September 11, 1935, awarded additional compensation on the basis of eighty per centum permanent disability.

Early in January, 1938, claimant experienced a reactivation of the osteomyelitis of the left forearm. After treatment for about two weeks the condition subsided. On January 20, 1938 claimant filed with the Commissioner his petition, and medical reports in support thereof, alleging that he was permanently and totally disabled. The Commissioner granted the prayer of the petitioner and awarded compensation on that basis. On protest by the Company and subsequent hearing, the Commissioner vacated his last order and determined that with the eighty per centum award, claimant had been amply compensated. The Appeal Board reversed the final order of the Commissioner and reinstated his former finding of total permanent disability. It is to this action of the Appeal Board that the Company directs its complaint.

The evidence of the employer at the hearing was that the claimant returned to work in February, 1935, and has continued in its employment, with little or no interruption, from that date to the time of the hearing in April, 1938, in charge of the Company's lamp house; that he has earned on an average of $100.00 per month for that period; that claimant's duties required him to fill the lamps with liquid, electrically charge them, and check them to and from the other employees.

The medical evidence proves conclusively that the claimant has little use of his left arm; that a slight bruise or strain thereto would probably bring about a recurrence of the osteomyelitis; that the condition of the arm is such that a serious reappearance of this infection would necessitate surgical treatment, perhaps to the extent of amputation, and there would be a strong likelihood that osteomyelitis would spread to other parts of the body.

Claimant testified in addition that he works with difficulty owing to impairment of his arm; that he continually suffers some pain in his leg and arm; and occasionally found it necessary to secure someone to assist him.

That the claimant, from a physical standpoint, is permanently and totally disabled from performing manual labor as it is usually classified, and of the character which he had ordinarily performed prior to the injury, is well supported by the evidence.

We have held that the sum of statutory percentages of disability for loss of specific members of the body is not conclusive in determination of total permanent disability. Wheeling Metal & Manufacturing Co. v. Compensation Com'r, W.Va., 2 S.E.2d 252. But if it were necessary to adopt as controlling herein the statutory schedule of disability ratings, it would appear therefrom that the rating for loss of a thigh is fifty per centum, and for loss of a forearm fifty-five per centum. Code 1937, 23-4-6(d). Though claimant's arm has not been severed, his loss of physical efficiency on account of the impairment of the arm is not far different from what the situation would be if the arm had been severed. Further, the statute provides...