Igo v. State Compensation Com'r

• Decision Date: 22 January 1946
• Docket Number: 9783.
• Citation: 36 S.E.2d 690,128 W.Va. 402
• Parties: IGO v. STATE COMPENSATION COMMISSIONER et al.
• Court: West Virginia Supreme Court

36 S.E.2d 690

128 W.Va. 402

IGO v. STATE COMPENSATION COMMISSIONER et al.

No. 9783.

Supreme Court of Appeals of West Virginia.

January 22, 1946

Syllabus by the Court.

'In a compensation case, where the compensation commissioner makes a finding of permanent partial disability, and an award of compensation based thereon, which award becomes final by failure to protest against or appeal therefrom, the case cannot be reopened, or any further award of compensation made therein unless there is a showing of 'a progression or aggravation in claimant's condition, or some other fact or facts which were not theretofore considered by the commissioner in his former findings, and which would entitle such claimant to a greater benefit than he has already received * * *.' Acts of the Legislature 1939, Chapter 137, Article 5, Sections 1-a and 1-b.' Point 2 Syl., Blevins v. Commissioner, W.Va., 33 S.E.2d 408.

Frank R. Lyon, Jr., and Brown, Jackson, & Knight, all of Charleston, for appellant.

James G. Jeter, Jr., of Charleston, for appellee.

FOX Judge.

The claimant suffered a compensable injury on June 1, 1939. He was paid on a temporary basis for seventy-eight weeks, and on December 10, 1940, was awarded compensation on a thirty per cent permanent partial disability rating, to which award there was no objection on his part or by the employer. An additional award of ten per cent was made on October 1, 1942 to which neither party objected. On March 4, 1943, claimant was allowed an additional award, making a total of fifty per cent, on a permanent partial disability rating, to which there was no objection on the part of either party. On October 15, 1943, claimant again, in effect, asked for a reopening of his case, and an award of compensation on a permanent total disability basis. This request was made on the strength of a report of Dr. L. M. Halloran made on October 12, 1943, in which he stated: 'In my opinion he (claimant) is unable to do laborious work and it is doubtful that he will ever recover to the extent that he could return to his occupation. Based on this claimant's present condition, I consider him totally and permanently disabled.' Following this request, based on the Halloran report, the commissioner on October 22, 1943 reopened the claim, and claimant was referred to Dr. R. L Anderson for disability rating. X-rays were made by Dr. E. W. Squires, and on November 9, 1943, Dr. Anderson reported that claimant had considerable disability due to multiple fractures of the spine and pelvis, limitation of motion and weakness of the spine, and that in his opinion claimant had a permanent partial disability of sixty per cent. On this report the commissioner, on November 20, 1943, awarded to the claimant compensation on the basis of an additional fifteen per cent disability, making a total finding of sixty-five per cent disability. Neither claimant nor employer objected to or appealed from this award. On October 5, 1944, claimant again asked, in effect, that his case be reopened, and that he be granted compensation on a permanent total disability rating and the claimant was referred to Dr. C. W. Stallard, who examined him on September 28, 1944, and reported that he had a total permanent disability. This request for reopening was denied. On December 13, 1944, the same request was again submitted, based on the report of Dr. E. Bennette Henson, dated December 9, 1944, and was again denied. Again, on January 22, 1945, the request was renewed, this time based upon a report made by Dr. L. M. Halloran, dated January 17, 1945, he being the same person who had examined claimant in October, 1943. In this report, Dr. Halloran stated: 'This claimant has suffered an injury of his spine in the nature of a compression fracture of the 10th, 11th, and 12th dorsal vertebrae and has a hypertrophic osteo-arthritis of the spine. There is no appreciable difference in his present condition than when examined on October 8, 1943. The claimant is a coal loader and has never made a recovery to the extent that it would permit him to return to his occupation at loading coal. Industrially, this claimant is unable to follow his occupation, however, the claimant appears to be in satisfactory physical condition to permit him to do something of a light nature. I consider the claimant totally and permanently unfit for heavy industrial work.' Based on this report, the commissioner reopened the case on January 29, 1945, and referred claimant to Dr. Jay L. Hutchinson who made a report on February 23, 1945, in which he stated that claimant was 'suffering considerably from the ravages of old age and has rather pronounced hypertrophic arthritis of the spine. * * * I feel that the 65% disability which has been awarded this individual is certainly adequate and, frankly, considerably in excess of what his disability should have warranted.' On February 28, 1945, the commissioner denied claimant any additional compensation. Claimant protested this order, and a hearing was held on March 19, 1945. On May 3, 1945, the commissioner finally denied claimant additional compensation 'on the ground that there has been no showing of a progression or aggravation of the claimant's condition or any fact or facts not heretofore considered by the Commissioner in making his former award, and therefore, the claimant has been amply compensated for any disability arising out of his injury of June 1, 1939. * * *' This ruling of the commissioner was appealed from, and the appeal board, by an order dated August 11, 1945, reversed the commissioner, and remanded the case to the commissioner with direction to pay claimant on a total and permanent disability basis, and from that order we granted this appeal.

On February 27, 1945, in the case of Blevins v. State Compensation Commissioner, W.Va., 33 S.E.2d 408, we held:

'In a compensation...