J. A. Foust Coal Co. v. Messer, 4199

• Citation: 80 S.E.2d 533,195 Va. 762
• Decision Date: 15 March 1954
• Docket Number: No. 4199,4199
• Court: Supreme Court of Virginia
• Parties: J. A. FOUST COAL COMPANY AND COAL OPERATORS CASUALTY COMPANY v. MATT MESSER. Record

Page 533

80 S.E.2d 533

195 Va. 762

J. A. FOUST COAL COMPANY AND COAL OPERATORS CASUALTY COMPANY v. MATT MESSER.

Record No. 4199.

Supreme Court of Appeals of Virginia

March 15, 1954.

Greear, Bowen, Mullins & Winston, for the appellants.

G. Mark French, Robert Lewis Young and Bremner & Young, for the appellee.

JUDGE: WHITTLE

WHITTLE, J., delivered the opinion of the court.

Matt Messer, hereinafter referred to as claimant, suffered a compensable injury on April 13, 1951, while working for J. A. Foust Coal Company, herein referred to as employer. On May 9, 1951, a memorandum of agreement was executed under Code, § 65-90, between claimant and employer. The agreement was approved by the Industrial Commission in an award dated June 1, 1951, which ordered payment of compensation at the maximum rate of $20 per week under Code, § 65-51, dealing with total incapacity for work.

The payments so ordered were made until March 3, 1952, at which time the employer filed with the Commission an application for hearing under § 65-95, alleging that there had been a change in the condition of claimant from total incapacity for work to that of partial incapacity compensable under § 65-52.

The application was heard by a hearing commissioner on September 13, 1952, and an award was entered which directed payment of compensation under § 65-52 at the rate of $7.73 per week during the remainder of the three hundred week period based on a finding of a 33 1/3 per cent general partial disability.

To review this ruling claimant sought a hearing before the full Commission as provided in § 65-93. The case was heard on June 10, 1953, and a majority of the Commission (Commissioner Nickels dissenting) entered an award reversing the hearing commissioner, finding that the claimant had a general partial disability of 33 1/3 per cent as a residual of his accidental injury of April 13, 1951; that as a result he was unable to perform his usual work; that the claimant had not been offered or procured selective work within his capacity; that he had been unable to find selective work elsewhere; 'and that the wage loss by reason of the partial incapacity is total, in a sum sufficient to yield maximum benefits. ' Therefore the Commission held that the award should be modified and the employer ordered to pay claimant $20 per week beginning March 3, 1952, for the remainder of the three hundred week period, 'unless subsequent conditions shall justify a modification hereof '. From the award the employer prosecutes this appeal.

The employer charges that it was error for the Commission to base its award upon actual loss of earnings rather than upon claimant's loss of ability, power or capacity to earn.

The evidence consisted of several medical reports and the claimant's own statement as to his present condition. Dr. H. H. Wescott, in a report dated February 7, 1952, expressed the opinion that claimant had a general disability of 33 1/3 per cent. Dr. E. L. Gage, in a report dated September 23, 1952, after making some ngative findings, stated: 'Examination showed a very tremulous, edentulous man of about the stated age of 45 years. * * * As far as the neurological examination went I could not demonstrate any organic evidence of true cord compression. There was evidence of hypertension, a very marked nervousness and obvious anxiety and verbosity. Certainly from the standpoint of employability the man is disabled, both because of his hypertension and his overall general reaction.'

The record shows that claimant at the time of the accident was a timber man in the mine of employer. His duties required him to set the heavy shoring columns and timbers. According to his testimony he was injured by a falling rock 'about six inches thick, about six feet long', which 'hit me on top of the head, went down my left side '. Claimant stated that he was presently unable to do any work.

The Commission found, as aforesaid, that 'the wage loss by reason of the partial incapacity is total'; nevertheless, it found this to be 'A case for determination under section 65-52 of the Act'. The assignment of cross error also challenged this finding.

When the employer called for a hearing under § 65-95, alleging a change in claimant's condition, the burden of proof was upon it to show that there was such a change as would affect the claimant's ability to earn wages. While it is true that the medical reports indicate a partial physical disability, such are not necessarily proof positive that the claimant can work and earn wages as is argued by the employer. There is ample evidence, both from the medical reports and from claimant's own statement, to show that at the time of the hearing he was totally incapacitated, and when the Commission so found it should have held that no change in claimant's previously established total incapacity, such as is contemplated by the statute, had occurred, and the employer having failed in carrying the burden of proof, its application for a change in the prior award should have been denied, thus leaving claimant's award under § 65-51 which provides for total incapacity.

The Commission properly gives great weight to medical evidence in determining incapacity, but it is not conclusively bound by such evidence. Medical evidence is not the sole criterion. There have been and probably will continue to be cases where the medical evidence shows only a percentage of disability when in truth and in fact the disability so found renders the claimant incapable of working and therefore incapable of earning any wages. The loss of earning power as the result of an injury is not necessarily proportional to the bodily functional disability. This interpretation of the Act is more in keeping with its humane legislative purpose than is the construction contended for by the employer that the Commission is bound by the percentage of disability found by medical evidence and that such evidence shall bind the Commission to the exclusion of all other facts and circumstances...