Johnson v. State Comp. Comm'r

• Citation: 109 W.Va. 316
• Decision Date: 09 September 1930
• Docket Number: (No. 6841)
• Court: Supreme Court of West Virginia
• Parties: W. A. Johnson v. State Compensation Commissioner andElkhorn Piney Coal Mining Company, a Corporation

109 W.Va. 316

W. A. Johnson

v.State Compensation Commissioner and Elkhorn Piney Coal Mining Company, a Corporation

(No. 6841)

Supreme Court of Appeals of West Virginia.

Submitted September 3, 1930.

Decided September 9, 1930.

1. While the Commissioner's power and jurisdiction over each case is continuing, yet a finding of fact, being treated as the finding of a judge, or a verdict of a jury, cannot be arbitrarily set aside by him.

2. An employee's right to a certain disability rating under section 31(c), Chapter 15P, Code, is not defeated by the mere fact that he has returned to work and is earning a wage equal to that received prior to the injury.

3. A case in which the Compensation Commissioner was not warranted in setting aside an award.

Appeal from Decision of State Compensation Commissioner.

Proceeding under the Workmen's Compensation Act by W. A. Johnson, claimant, opposed by the Elkhorn Piney Coal Mining Company, employer. From a decision of the State Compensation Commissioner setting aside award after report of inspector into earnings of claimant, claimant appeals.

Reversed; judgment here.

David D. Ashworth and Clay S. Crouse, for appellant.

H. R. Lee, Attorney General, R. Dennis Steed, Assistant Attorney General, and T. J. Michie, Jr., for Elkhorn Piney Coal Mining Company, a corporation.

Woods, Judge:

Claimant, a coal loader, was seriously injured by falling slate. An examination at the Beckley Hospital shortly after the accident showed a fracture of the skull on the left side running to the base through mastoid region, fracture of occipital bone near foramen magnum, crushed index finger of right hand with several lacerated wounds of hand, one large scalp wound and several smaller wounds on face and forehead. The injury to hand necessitated amputation of index finger just behind knuckle joint. An award of $16.00 per week for 40 weeks was increased to 25%. A further increase was refused at the end of the 100 weeks. However, the claim was again re-opened in December, 1929, and claimant directed to Dr. McCulloch of the Beckley Hospital for re-examination. This report of Dr. McCulloch referred to a former examination made by him just prior to the 25% award in which he had stated that "complaint at this time is pain in head, partial loss of hearing, partial loss of sight, double vision and dizziness ''; and ends with the statement that '' The change in this man's condition since the above examination has been some improvement in vision, improvement in hearing and the additional symptoms of pain and swelling in right hand and wrist, hot and cold sensations and attacks of numbness in lower ex- trentities. The writer has seen this claimant on numerous occasions since his injury and I believe he is honest in his statements and that he has the symptoms he complains of. We know that this man sustained very serious injuries, we know he has considerable loss of vision, we know he has reduced hearing in right ear and we know that the train of symptoms that he complains of are those very frequently following serious head injuries that he had. I still am of opinion that this claimant should be awarded a 50% permanent disability and claim closed." Claimant was notified, by letter of January 7, 1930, of the award of 50% disability.

On request of the employer, received just after notice of a 50% award had gone out to claimant, the Commissioner directed one of his inspectors to inquire into the earnings of complainant since the 25% award, and held up payment under the new award during such inquiry. After a consideration of the inspector's report, which disclosed that claimant's monthly earnings as slate picker on tipple and as trackman were averaging but slightly less than his earnings as coal loader (which was due to the fact that he had worked more days per month since the injury), the Commissioner set aside the 50% award.

It is contended by claimant that the matters set up in the report were not sufficient to warrant such action.

We have held in a number of cases that the finding of fact by the Compensation Commissioner should be treated as the finding of a judge, or a verdict of a jury, and will not, as a genera] rule, be set aside if there is substantial evidence to support it. Kincannon v. Ott, Com., 108 W. Va. 428, 151 S. E. 311; Beaton v. Comp. Com'r., 106 W. Va. 563, 146 S. E. 368. Following this analogy, a finding, once made, should not be set aside by the Commissioner, except for good cause. The mere fact that the Commissioner's jurisdiction is "continuing" should not be interpreted as a license to set aside a finding on insufficient evidence. Once having acted, his finding must stand in the absence of some good reason for setting it aside. In State ex rel. Bunch v. Fortney, et al., 93 W. Va. 292, 116 S. E. 753, this Court held that once the Road Commission had determined to grant a permit, it could not change its finding, even though the permit had not been actually issued.

This brings us to a consideration of the evidential value of the inspector's report. As already noted, it pertained to the wages being paid by the company, in whose employ the claimant was when injured. In order to determine its evidential value, we must determine whether or not wages earned...