Heaton v. Comp. Comm'r

• Decision Date: 15 January 1929
• Docket Number: (No. 6368)
• Citation: Heaton v. Comp. Comm'r, 106 W.Va. 563, 146 S. E. 368 (W. Va. 1929)
• Court: West Virginia Supreme Court
• Parties: Matt Heaton v. Compensation Commissioner

106 W.Va. 563

Matt Heaton

v.Compensation Commissioner

(No. 6368)

Supreme Court of Appeals of West Virginia.

Submitted January 9, 1929.

Decided January 15, 1929.

Master and Servant Finding of Fact by Compensation Commissioner Will Not Generally be Set Aside if Supported by Substantial Evidence; Evidence Held to Sustain Action of Compensation Commissioner in Refusing Third Award for Injury to eye.

The finding of fact by the Compensation Commissioner should be treated as the finding of a judge, or the verdict of a jury, and will not, as a general rule, be set aside if there is substantial evidence to support it.

Proceeding under Workmen's Compensation Law by Matt Heaton. From a ruling of the Compensation Appeal Board affirming the action of the compensation commissioner in refusing to grant a third award, claimant appeals.

Affirmed.

Guy H. Burnside, for appellant.

Howard B. Lee, Attorney General, and R. Dennis Steed, Assistant Attorney General, for respondent.

Litz, Judge:

This is an appeal by an. injured employee from the ruling of the commission (composed of the Governor, Commissioner of Health and Commissioner of Labor, and commonly called the compensation appeal board), affirming the action of the compensation commissioner in refusing to grant a third award to the claimant, Matt Heaton,

August 29, 1926, while the claimant was charging an electric storage battery, in the course of his employment as a servant of the Washington Irving Coal Company, the battery exploded, causing sulphuric acid therefrom to be cast into his eyes, which resulted, as he claims, in almost total blindness of the left eye and material impairment of the vision of the right eye. A. F. Post, his family physician, administered first-aid to Heaton about an hour after the injury and referred him to an eye specialist for further treatment.

Two awards have been made and paid by the compensation commissioner to the claimant, the first for $20.57 and the second for $16.00 per week during a period of eighty weeks, calculated on twenty per centum disability. The basis of the application here involved for a third award is that the claimant has sustained more than twenty per centum disability from, the injury. Relief having been denied, upon this application, by the compensation commissioner, the employee appealed to the compensation appeal board without avail. Numerous affidavits and statements of experts and laymen were considered by the commissioner and the appeal board upon the issues (1) as to the extent of the claimant's defective eye sight, if any, prior to the accident, (2) whether his vision was impaired by the injury complained of, and if so, (3) to what extent.

The claimant states that his eyesight and general health before the injury was good, and that his eyes were never diseased nor previously injured with the exception of an injury to the right eye in youth which left a small scar but did not materially affect its vision.

His wife, Cora Heaton, says that she never observed nor heard him say prior to the accident in question that his vision was defective.

B. E. Wadsworth, a carpenter contractor, states that he employed Heaton as assistant foreman and carpenter in building construction during the year 1923, and that in the course of this employment, which required normal eye sight on the part of the performer, he observed nothing to indicate Heaton did not possess such vision.

Daniel F. Dienne, an agent of the Equitable Life Assurance Society, states that he had the claimant examined for insurance in 1920, and that no loss of vision in either eye was reported as the result of such examination.

Frank S. Turner, President of the Hartford Planing Mill of Clarksburg, states that he sold the claimant lumber for the construction of a house sometime prior to the accident, in payment of which the claimant, after examining the bills therefor, issued to affiant several checks; and that he observed no act by the claimant indicating defective vision on his part.

Joseph E. Hull states that some time prior to the accident he and the claimant were employed as solicitors and agents of an insurance company, which employment necessitated the reading and filling in of blank forms; that these duties as well as the preparation of reports in the course of said employment were performed by the claimant apparently without the use of eye glasses; and that so far as affiant could detect or observe claimant was then in possession of perfect vision.

H. C. Beverage, employed as telegraph operator near Heaton's place of work as a servant of the Washington Irving Coal Company, states that he understood from claimant prior to the accident that his eyes had been injured; that he did not think claimant's eye sight was then normal, although his vision seemed to be good; that claimant often asked affiant for the correct time; and that by test with the watch dial he ascertained that the claimant had better vision in his left eye, which was very nearly normal, than in the right eye.

Russell Smith, mine foreman of the Washington Irving Coal Company, states that prior to the accident Heaton had asked affiant and others on numerous occasions to clean his mining lamp as he could not see well enough to do so himself.

W. M. Phillips, also an employee of the Washington Irving Coal Company, states that the...