Hoff v. State Compensation Com'r

• Decision Date: 22 October 1963
• Docket Number: No. 12261,12261
• Court: West Virginia Supreme Court
• Parties: Helen E. HOFF v. STATE COMPENSATION COMMISSIONER and Powhatan Brass and Iron Works, a Corporation.

Page 772

132 S.E.2d 772

148 W.Va. 33

Helen E. HOFF v. STATE COMPENSATION COMMISSIONER and Powhatan Brass and Iron Works, a Corporation.

No. 12261.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 10, 1963.

Decided Oct. 22, 1963.

Syllabus by the Court

1. Although the liberality rule in the interpretation of evidence in Workmen's Compensation cases is approved by this Court, the burden of establishing a claim for compensation rests upon the person asserting such claim. The rule of liberality will not take the place of required proof, and an award of compensation cannot be made on hearsay alone.

2. 'An order of the Workmen's Compensation Appeal Board, affirming an order of the State Compensation Commissioner, which is not supported by the evidence and, for that reason, is plainly wrong, will be reversed and set aside by this Court.' Pt. 2, syllabus, Flynn v. State Compensation Comm'r., 141 W.Va. 445 .

Rice, Hannis & Rice, Lacy I. Rice, Martinsburg, for appellant.

Kenneth W. Metz, Charles Town, for appellee.

BERRY, President.

This is an appeal by the Powhatan Brass & Iron Works, a corporation, former employer of the claimant, Helen E. Hoff, from a decision of the Workmen's Compensation Appeal Board of May 10, 1963, which affirmed an order of the Workmen's Compensation Commissioner (now Director of Workmen's Compensation) of January 28, 1963, which awarded 20% permanent partial disability to the claimant in connection with an injury she received on April 3, 1959. Upon petition by the employer, an appeal was granted by this Court on July 1, 1963, and submitted for decision by this Court on argument and briefs at the September, 1963 term.

This claim for compensation is based on a reported injury by the claimant to her back while lifting a pan of cores weighing about twenty pounds. At the time of this reported injury the Compensation Commissioner held that it was compensable and paid a small medical bill, but inasmuch as the claimant did not lose sufficient time from work, no temporary total disability was paid at any time.

Over two and one-half years after the injury application was made to the Commissioner for permanent partial disability, which claimant alleged was caused as the result of the injury of April 3, 1959. The Commissioner referred the claimant to Dr. A. W. Armentrout of Martinsburg, West Virginia, for an examination on November 20, 1961. The claimant gave Dr. Armentrout a history of her having suffered various pains in her back since the injury of April 3, 1959, but she did not tell him of having suffered from any ailments in her back before that time. Dr. Armentrout's report of January 5, 1962, states that her back condition had reached a maximum degree of recovery, and that he was of the opinion that she had 25% permanent partial disability as a result of the injury of April 3, 1959. No x-rays were taken by Dr. Armentrout in connection with his report and he had not treated her on any other occasion. Dr. Armentrout died a few weeks after his report had been made to the Commissioner.

The Commissioner, on January 29, 1962, awarded the claimant a 25% permanent partial disability which was based on Dr. Armentrout's report, as no other report or information was contained in the Commissioner's file with regard to any permanent partial disability up to that time. An objection or protest was made to the Commissioner's ruling granting the 25% permanent partial disability and the claim was set down for hearing.

Several hearings were held, at which time it developed that the claimant had been treated by several doctors for back ailments several years before the reported injury of April 3, 1959, and afterwards. The hearings brought out the fact that she had been treated for various ailments, including back trouble, since 1946. Dr. Marshall Glenn operated on her in 1951 and removed a multiple lipoma which is a benign tumor around the lumbar area which could have caused pain in her back. Dr. Earl D. Allara treated the claimant after the injury of April 3, 1959, and at that time found tumor masses about the size of a walnut on both sides of the spine in the lumbosacral region. He had also treated the claimant for back trouble for about two years before the injury of April 3, 1959. Dr. Allara did not testify that the claimant's present back trouble was caused by the injury of April 3, 1959. He did state that it was possible that her previous complaints with regard to her back ailments might have been aggravated by the injury.

Several other physicians testified at the various hearings held and depositions taken, and none of them stated that the injury of April 3, 1959, had caused any permanent partial disability. The claimant was overweight and had been treated by Dr. Bradford S. Bennett for low back strain in 1958 due to such overweight. Dr. Bennett advised her to reduce her weight, but she had failed to do so.

The claimant was discharged by her employer in 1961 because of her difficulty in her associations with the other employees, and her continuous complaints of having a nervous breakdown, as well as her absence from work from time to time.

After the hearings were completed the Workmen's Compensation Commissioner awarded the claimant a 20% permanent partial disability which was affirmed by the Workmen's Compensation Appeal Board. The only evidence given by any physician that she had any permanent partial disability as a result of the injury of April 3, 1959, was that of Dr. Armentrout, and his death made it impossible for him to be cross-examined on his report which was filed before his death. Therefore, it was impossible to ascertain what his answers would have been if he had been advised of the previous history of the claimant's back ailments over a period of years before he examined her. The report of Dr. Armentrout,...