Hosey v. Workmen's Compensation Commissioner, No. 12580

• Court: Supreme Court of West Virginia
• Writing for the Court: CALHOUN
• Citation: 151 W.Va. 172,151 S.E.2d 729
• Parties: Ralph M. HOSEY v. WORKMEN'S COMPENSATION COMMISSIONER et al.
• Docket Number: No. 12580
• Decision Date: 15 November 1966

Page 729

151 S.E.2d 729 151 W.Va. 172 Ralph M. HOSEY
v.
WORKMEN'S COMPENSATION COMMISSIONER et al. No. 12580. Supreme Court of Appeals of West Virginia. Submitted Sept. 13, 1966.
Decided Nov. 15, 1966.

Syllabus by the Court

This Court will not reverse a finding of fact made by the Workmen's Compensation Appeal Board unless it appears from the proof upon which the appeal board acted that the finding is plainly wrong.

Jeter, Jeter & Jeter, James C. Jeter, Charleston, for appellant.

No counsel for appellees.

[151 W.Va. 173] CALHOUN, Judge:

In this case, styled Ralph M. Hosey v. Workmen's Compensation Commissioner and Pardee and Curtin Lumber Company, the claimant, Ralph M. Hosey, has appealed to this Court from an order of the Workmen's Compensation Appeal Board entered on May 5, 1966, affirming an order of the Workmen's Compensation Commissioner entered on December 17, 1965, by which a previous award of workmen's compensation benefits in favor of the claimant was increased from fifty percent to sixty percent.

The basic question presented for decision is whether the appeal board erred in not making an award of total permanent disability benefits.

Ralph M. Hosey, the claimant, sustained an injury to his back and right hip on August 20, 1958, as a result of a 'rock fall'

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while he was employed in the employer's coal mine in Webster County. While it is clear from the record that the claimant is physically unable to perform heavy manual labor, the appeal board was of the opinion that his disability is not wholly 'injury-connected.'

The claimant originally received an award of twenty percent. On subsequent reopenings, he received awards of thirty-five percent and fifty percent before he received the award of sixty percent from which he has prosecuted this appeal.

The claim was last reopened on June 16, 1965, upon reports of Dr. Joseph P. Seltzer and Dr. Harold H. Kuhn. Dr. Seltzer's report, dated May 28, 1965, recommended an additional five percent above the previous award of fifty percent. In his report he stated: 'There seems to be objective worsening in this case. There is marked disability. This man is obviously unable to work. * * * I am unable to relate the neck complaints to the injuries sustained as from the objective point of view the findings are consistent [151 W.Va. 174] with this man's age.' Dr. Kuhn examined the claimant on June 8, 1965, and recommended an additional award of five percent. In a report dated August 13, 1965, Dr. Robert S. Wilson stated: 'There is evidence there has been gradual progressing of arthrities of the right hip, and a history of increased pain in the hip and back. * * *.' He stated that, in his opinion, the claimant had a fifty-five percent permanent partial disability. In an X-ray report made by Dr. J. D. H. Wilson on August 9, 1965, he stated: 'Examination of the right hip shows some degenerative arthritis of the right hip joint. When the present examination is compared with that of 1964 no significant change is noted in the amount of degenerative arthritis.'

On September 1, 1965, the commissioner made an award of five eprcent in addition to the fifty percent award previously made. This finding was protested by the claimant and at a hearing held on November 5, 1965, the claimant introduced reports of Dr. C. W. Stallard, Dr. Harold H. Kuhn and Dr. J. N. Kurish, D. O. In his report dated November 2, 1965, Dr. Kurish stated: 'In my opinion patient is totally and permanently disabled from performing a regular and gainful occupation. He should have a...