Hayes v. State Compensation Director

Citation149 W.Va. 220,140 S.E.2d 443
Decision Date23 February 1965
Docket NumberNo. 12391,12391
CourtSupreme Court of West Virginia
PartiesWilliam E. HAYES v. STATE COMPENSATION DIRECTOR et al.

Syllabus by the Court

1. When a case is before the workmen's compensation appeal board on appeal from an order of the workmen's compensation director, the appeal board becomes the sole fact-finding body to be considered thereafter. Its findings of fact supersede those previously made by the director. It is the action of the board which comes before this Court for review on appeal.

2. While informality in the presentation of evidence is permitted in workmen's compensation cases and a rule of liberality in favor of the claimant will be observed in appraising the evidence presented, still the burden of establishing a workmen's compensation claim rests upon the one who asserts it and the well-established rule of liberality cannot be considered to take the place of proper and satisfactory proof.

3. An award of a claim cannot be made in a workmen's compensation case unless it is supported by satisfactory proof that the workman sustained a personal injury in the course of and resulting from his employment.

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

Dayton, Campbell & Love, George W. S. Grove, Jr., Charleston, for appellant.

George W. Stokes, Charleston, for appellees.

CALHOUN, Judge.

This case is before the Court on appeal from an order entered by the workmen's compensation appeal board on September 10, 1964, which affirmed an order entered previously by the state compensation director holding that William E. Hayes, the claimant, received a compensable injury on December 9, 1961, while employed by Mount Vernon Farm Dairy Products, Inc., the appellant.

The basic question presented for decision is whether the proof is sufficient to justify the factual finding by the appeal board that the claimant sustained a personal injury in the course of and resulting from his employment.

The claimant filed an application for benefits on November 17, 1962, in which he alleged that he received a back injury on December 9, 1961. The employer disclaimed any prior knowledge of such an injury and requested an investigation. The request was granted and an investigation was made by Charles C. Morris, one of the director's investigators. By an order dated January 30, 1963, the director held that the claim was compensable. The employer protested and a formal hearing was held, at which various witnesses appeared and testified. The director, by order entered on April 10, 1964, affirmed his earlier order of January 30, 1963, thereby holding that the claim was compensable. On appeal by the employer, the appeal board entered an order on September 10, 1964, by which it affirmed the finding of the director.

Code, 1931, 25-5-4a, as amended, provides that, on appeal to this Court, 'the findings of fact of the board shall have like weight to that accorded to the findings of facts of a trial chancellor or judge in equity procedure.' Findings of fact made by a trial chancellor, based on conflicting evidence, will not be disturbed on appeal unless clearly wrong or against the preponderance of the evidence; but such findings will be reversed if contrary to the preponderance of the evidence or clearly wrong. Lieberman v. Lieberman, 142 W.Va. 716, pts. 5 and 6 syl., 98 S.E.2d 275; Cyrus v. Tharp, 147 W.Va. 110, pt. 7 syl., 126 S.E.2d 31. Similar principles have been applied to findings of fact made by the workmen's compensation appeal board. Such findings will not be reversed unless clearly or plainly wrong. Buckalew v. State Compensation Director et al., W.Va., 140 S.E.2d 453; Tate v. State Compensation Director et al., W.Va., 138 S.E.2d 636. Conversely, such findings of fact will be reversed if clearly or plainly wrong. Buckalew v. State Compensation Director et al., W.Va., 140 S.E.2d 453; McGeary v. State Compensation Director et al., W.Va., 135 S.E.2d 345.

Code, 1931, 23-1-15, provides that the commissioner 'shall not be bound by the usual common law or statutory rules of evidence, * * *.' It has been held that this statute applies also to proceedings before the appeal board. Vento v. State Compensation Commissioner et al., 130 W.Va. 577, 583, 44 S.E.2d 626, 630; Morris v. State Compensation Commissioner, 135 W.Va. 425, 430, 64 S.E.2d 496, 499. On appeal, the appeal board is not bound by the findings of the commissioner. The board considers and decides the case de novo. It is the action of the board which comes before this Court for review on appeal. 'The finding of the commissioner wholly disappears, with all presumptions which might have attached thereto. The appeal board displaces the commissioner, and becomes the sole fact-finding body to be thereafter considered in the case. The order of the appeal board is a wholly new finding, which superseded that of the commissioner for all purposes.' Manning v. State Compensation Commissioner, 124 W.Va. 620, 625, 22 S.E.2d 299, 301. To the same effect see Vento v. State Compensation Commissioner et al., 130 W.Va. 577, 44 S.E.2d 626; Dillon v. State Compensation Commissioner, 129 W.Va. 223, 39 S.E.2d 837; Szalay v. State Compensation Commissioner et al., 127 W.Va. 449, 33 S.E.2d 236; Moore v. State Compensation Commissioner et al., 118 W.Va. 575, pt. 1 syl., 191 S.E. 292; Rasmus v. Workmen's Compensation Appeal Board, 117 W.Va. 55, pt. 1 syl., 184 S.E. 250; Georges Creek Coal Co. v. Workmen's Compensation Appeal Board, 117 W.Va. 89, 183 S.E. 866.

While this Court approves and undertakes to adhere to the liberality rule, it has also consistently held that the liberality rule will not take the place of proof or relieve the claimant of the burden of establishing his claim. Hoff v. State Compensation Commissioner et al., W.Va., pt. 1 syl., 132 S.E.2d 772; Eady v. State Compensation Commissioner et al., W.Va., 132 S.E.2d 642, 646; Turner v. State Compensation Commissioner et al., 147 W.Va. 145, 126 S.E.2d 379, 382-383; Meade v. State Compensation Commissioner et al., 147 W.Va. 72, 125 S.E.2d 771, 776; Williams v. State Compensation Commissioner et al., 127 W.Va. 78, 84, 31 S.E.2d 546, 549. In the case last referred to above, the Court stated: '* * * [W]hile informality in the presentation of evidence is permitted in compensation cases, and, under many decisions of this Court, a rule of liberality in favor of the claimant will be invoked in appraising the evidence presented, still the burden of establishing a claim rests upon the one who asserts it, and no rule of liberality will take the place of required proof.' To the same effect, see Turner v. State Compensation Commissioner et al., 147 W.Va. 145, 126 S.E.2d 379, 382-383; 54 W.Va.Law Review 72. In the light of the legal principles previously stated, we now proceed to review the evidence in an effort to determine whether the findings of the appeal board are sustained by the proof.

The claimant had worked for the employer, Mount Vernon Dairy Farm Products, Inc., at its milk distribution plant at Charleston for more than eight years prior to December 9, 1961, the date of the alleged injury. A part of his work consisted in loading and unloading delivery trucks from an outside loading platform at the plant. A conveyor carried milk and other items to and from inside the plant in order to facilitate the loading and unloading of delivery trucks parked near the loading platform. The claimant asserts that he received his injury while unloading a delivery truck. It was dark at the time, though the loading platform was properly lighted.

The claimant made several somewhat variant statements concerning the cause of and the circumstances attending his alleged injury. In his application he stated: 'Slipped and fell on ice on loading dock, hit cement, hurt back.' In undertaking to judge this statement charitably and with fairness to the claimant, we observe at this point that he is unable to read or write, that his wife apparently completed the application in her own handwriting and that the claimant signed the application merely by making an appropriate mark, pursuant to Code, 1931, 2-2-10(c) which is, in part, as follows: 'But when the signature of any person is required, it must be in his own proper handwriting, or his mark, attested, proved, or acknowledged;'. In connection with the investigation made in behalf of the director by Charles C. Morris, the claimant made an affidavit on December 18, 1962, in which he gave an account of the alleged accident and injury as follows: 'We were loading trucks on the platform at the plant * * *. I had been in the plant unloading a truck and came back out to the platform to load another truck. As I came out of the plant, my feet flew out from under me and I fell on the edge of the platform on a steel rim. I hit on the end of my spine and it hurt so badly I couldn't stand on my feet. I went over to the garage and sat down for awhile and then went back to work.'

At the hearing, the claimant made several statements as follows: 'My job was to unload the truck, and the man inside was to pull them back, which he had so many this time and I went off the job...

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    • United States
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    ...150 W.Va. 277, 145 S.E.2d 29; Deverick v. State Compensation Director, 150 W.Va. 145, 144 S.E.2d 498; Hayes v. State Compensation Director, 149 W.Va. 220, 140 S.E.2d 443; Damron v. State Compensation Commissioner, 109 W.Va. 343, 155 S.E. 119. Though the general rule in workmen's compensatio......
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