Haines v. Workmen's Compensation Commissioner, 12593

• Decision Date: 01 November 1966
• Docket Number: No. 12593,12593
• Citation: 151 W.Va. 152,150 S.E.2d 883
• Court: West Virginia Supreme Court
• Parties: C. W. HAINES v. WORKMEN'S COMPENSATION COMMISSIONER and Union Carbide Corporation.

Page 883

150 S.E.2d 883

151 W.Va. 152

C. W. HAINES v. WORKMEN'S COMPENSATION COMMISSIONER and Union Carbide Corporation.

No. 12593.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 13, 1966.

Decided Nov. 1, 1966.

Syllabus by the Court

1. 'The right to workmen's compensation benefits is wholly statutory. Under the workmen's compensation statutes of this state, a claimant has a right to receive benefits and the director of workmen's compensation is authorized to pay benefits to a claimant in no greater amount than is expressly authorized by statute.' Point 2, Syllabus, Dunlap v. State Compensation Director et al., 149 W.Va. 266 (140 S.E.2d 448).

2. It is the prerogative of the workmen's compensation commissioner, not that of the examining physician, to determine the amount of the award, if any, to which the claimant is entitled.

3. An order of the workmen's compensation appeal board which is not supported by the evidence and which for that reason is plainly wrong will be reversed by this Court on appeal.

Benjamin D. Tissue, South Charleston, for appellant.

No appearance for appellees.

CAPLAN, President:

This is an appeal by the employer, Union Carbide Corporation, a corporation, from an order of the Workmen's Compensation Appeal Board entered May 5, 1966, which affirmed the order of the State Workmen's Compensation Commissioner, dated December 10, 1965, granting the claimant, C. W. Haines, an award of 33% Permanent partial disability for the partial loss of vision of his right eye.

This proceeding was submitted for decision on September 13, 1966, upon the petition of the employer, the record of this proceeding before the commissioner and the appeal board, and the brief filed on behalf of the employer. There has been no appearance in this Court on behalf of the claimant.

The claimant was employed as an operator by Union Carbide Corporation at its plant in Institute, West Virginia. During the course of his employment the claimant, on February 7, 1963, suffered a chemical burn to his eyes as a result of an explosion which dispersed sodium. He received medical treatment at the Shepherd Hospital and recovered sufficiently to return to his employment on May 1, 1963. Total temporary payments were made to this claimant for 11 5/7 weeks.

By letter of March 9, 1965, the commissioner referred the claimant to Doctor George Hamrick, of Charleston, for examination and evaluation of his disability. Doctor Hamrick submitted his report on May 26, 1965, wherein he stated that the injury had reduced the visual acuity of the right eye to 20/200. He further reported that the claimant, having reached the maximum degree of improvement, was in need of no further medical treatment. In Doctor Hamrick's opinion the claimant was entitled to an award of permanent partial disability in the amount of 20%.

Shortly thereafter the commissioner, in a letter to Doctor Hamrick, said '* * * in view of the uncorrected vision of the right eye being 20/200 which we consider as being industrial blindness, the claimant would be entitled to a 33% Award rather than the 20% As recommended in your report.' This was followed on June 23, 1965, by an order of the Commissioner granting the claimant a 33% Permanent partial disability award. The employer filed a protest and the matter was set for hearing.

The hearing consisted only of the testimony of Doctor Hamrick, wherein he reaffirmed his opinion that the claimant was entitled to a 20% Permanent partial disability award. He further expressed his disagreement with a 'Snellen chart', which was introduced as an exhibit by the employer and upon which the employer alleges the commissioner's award was based.

On December 13, 1965 the commissioner entered an order affirming his order of June 23, 1965, wherein the claimant was granted a 33% Permanent partial disability award. The order contained the following language: '* * * it being the opinion and long standing policy of the Department that uncorrected visual loss of 20/200 is and should be considered industrial blindness and any claimant suffering such loss should be compensation for the entire loss of the eye; * * *.' Upon timely appeal by the employer, the Workmen's Compensation Appeal Board affirmed the order of the commissioner. It is from this action of the appeal board that this appeal is prosecuted.

On this appeal the employer contends that the order of the appeal board is arbitrary, capricious and is not supported by either the law or the evidence; that the appeal board has totally ignored the only evidence indicating the medical basis for the determination of an award; and that the final order of the appeal board is erroneous in that it attempts to govern the disposition of this claim by a policy of the department which has never been reduced to writing under the commissioner's rule making authority, as prescribed by law, rather than by the law and evidence.

Clearly, under the evidence, this claimant has sustained an injury which has resulted in some degree of permanent partial disability. The commissioner has ruled that the claimant is entitled to a 33% Award....