Huff v. State Workmen's Compensation Com'r

• Decision Date: 12 February 1974
• Docket Number: No. 13418,13418
• Citation: 202 S.E.2d 383,157 W.Va. 530
• Court: West Virginia Supreme Court
• Parties: Ernest HUFF v. STATE WORKMEN'S COMPENSATION COMMISSIONER, and Island Creek Coal Company.

Page 383

202 S.E.2d 383

157 W.Va. 530

Ernest HUFF v. STATE WORKMEN'S COMPENSATION COMMISSIONER, and Island Creek

Coal Company.

No. 13418.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 8, 1974.

Decided Feb. 12, 1974.

Syllabus by the Court

1. Where an award of compensation is made but the Commissioner does not properly take into consideration all of the evidence with regard to the claim in making the award, the order is plainly wrong and will be reversed by this Court.

2. Chronic bronchitis is ordinarily not considered an occupational disease and is not compensable unless there is sufficient proof that it was contracted in the course of and as a result of employment.

3. 'Where proof offered by a claimant to establish his claim is based wholly on speculation, such proof is unsatisfactory and is inadequate to sustain the claim.' Point 4, syllabus, Clark v. State Workmen's Compensation Commissioner, W.Va., 187 S.E.2d 213 (Decided by this Court March 14, 1972).

Amos C. Wilson, Logan, for appellant.

Edward I. Eiland, Logan, for appellee Island Creek Coal Co.

J. Thomas Lane, Jack L. Hickok, Charleston, for appellee State Workmen's Comp. Commr.

BERRY, Justice:

Ernest Huff, hereinafter referred to as claimant, appeals from a final order of the Workmen's Compensation Appeal Board of July 30, 1973, which affirmed a ruling of the Commissioner on December 7, 1972, which held that the claimant's award of 50% Permanent partial disability fully compensated him for his injuries sustained in a slate fall in the employer's coal mine. Claimant contends on this appeal that the Commissioner and the Appeal Board mistakenly determined that claimant's subsequent back disability was not the result of the 1960 mine accident and further contends he is entitled to a total disability award when his disabilities incurred in the 1960 accident are added to his previous disability as a result of an occupational disease under the second injury statute. This Court granted claimant's appeal on October 15, 1973 and the case was submitted for decision on January 8, 1974.

On January 7, 1960 the claimant sustained a fracture of the right leg and the left shoulder when he was injured in a slate fall in a coal mine operated by Island Creek Coal Company. The claim was held to be compensable by the Commissioner on February 24, 1960. Claimant received temporary disability benefits for 177 1/7 weeks because of various complications that developed in the treatment of his leg. Claimant had a bone graft operation performed on his leg in March of 1962 and subsequently walked with an abnormal gait. The claimant was referred to Dr. Howard A. Swart who stated that he felt the claimant was entitled to a 50% Permanent partial disability award, allocating 45% For the right leg and 5% For the left shoulder. On July 1, 1963 an order was entered by the Commissioner granting the claimant a 50% Award. Both the claimant and the employer protested this award. After several hearings were held, the Commissioner affirmed the award of 50% Permanent partial disability on June 15, 1964.

On December 15, 1964 claimant petitioned to reopen his claim and on December 30, 1964 the claim was reopened. The claimant contended that his condition had worsened and that he suffered from a back injury which had not been considered in the original award. He also contended that the disabilities incurred in the 1960 mine accident combined with a pre-existing disability as a result of occupational pneumoconiosis rendered him totally disabled within the meaning of the second injury statute.

After the claim was reopened, the claimant was again referred to Dr. Swart who reported that the claimant had a narrowing of the first lumbar vertebrae due to an old fracture of the spine apparently occurring at the time of his original injury and recommended an additional 10% Award for the back injury. However, on April 26, 1965 the Commissioner entered an order holding that the claimant had been fully compensated and that the back injury was due to causes other than his compensable injury. The claimant protested this ruling and numerous medical reports were introduced at the subsequent hearings. The consensus of these reports was that there was no progression or aggravation in the disability attributed to the right leg and left shoulder. However, it appears from the record that no x-rays were taken of the claimant's spine after the accident to determine if there had been any injury to his back. The claimant testified he did not realize his back was injured until after the cast was removed from his leg and he had started walking again. Dr. J. Hunter Smith who treated the claimant from the date of his injury until April 5, 1963 stated in his reports that the only complaints the claimant made of back difficulties during this period was on January 30, 1962 when the claimant was being treated as an outpatient. Other doctors who examined the claimant in 1963 and 1964 recorded no complaints about his back.

However, medical testimony revealed that a back problem could develop as a result of a fracture to the leg if a pelvic tilt developed. Moreover, the evidence revealed that prior to the 1960 injury, claimant had never suffered from a back ailment and that he had not been involved in any accident that would have injured his back subsequent to the slate fall.

The principal reason for the appearance and participation by attorneys on behalf of the Commissioner was for the protection of the surplus fund which was involved in this claim under the second injury statute. See Cline v. State Workmen's Compensation Commissioner, W.Va., 196 S.E.2d 296.

Dr. C. W. Nelson, in a report dated May 12, 1969 was of the opinion that an x-ray of claimant's chest indicated he had moderate emphysema and pneumoconiosis, category II--III. Dr. D. L. Rasmussen, in a report dated May 13, 1969, concluded that: 'This patient's minimal pulmonary abnormality would be estimated to reduce his overall functional capacity to perhaps on the order of 20% Of his working capacity. This slight loss of capacity could be attributed primarily to his occupational exposure.' According to Dr. Rasmussen's report, the claimant had worked in coal mines for approximately 15 years before the 1960 accident. The claimant had also been smoking about a half a pack of cigarettes a day for 22 years. The claimant stated that he first noticed a chronic cough about two years after the 1960 accident. As a result of Dr. Rasmussen's report, the Commissioner referred the claimant to Dr. James H. Walker who examined the claimant and stated in his report of December 27, 1971: 'Bronchoscopy and bronchography was done on August 31, 1971 and revealed the presence of chronic bronchitis and no evidence of bronchiectasis. * * * In my opinion, Mr. Ernest Huff has 20--25% Impairment of his capacity to work as the result of his chronic bronchitis. I have not made a diagnosis of...