Johnson v. State Workmen's Compensation Com'r

• Decision Date: 15 February 1972
• Docket Number: No. 13153,13153
• Citation: 155 W.Va. 624,186 S.E.2d 771
• Parties: Katie L. JOHNSON v. STATE WORKMEN'S COMPENSATION COMMISSIONER, and Semet-Solvay Division, AlliedChemical Corporation.
• Court: West Virginia Supreme Court

Page 771

186 S.E.2d 771

155 W.Va. 624

Katie L. JOHNSON v. STATE WORKMEN'S COMPENSATION COMMISSIONER, and Semet-Solvay Division, AlliedChemical Corporation.

No. 13153.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 19, 1972.

Decided Feb. 15, 1972.

Syllabus by the Court

1. Workmen's compensation statutes, being remedial, should be liberally construed

in favor of claimants for workmen's compensation benefits.

2. 'Evidence should be construed liberally in favor of a claimant for workmen's compensation.' Syllabus, Fulk v. State Compensation Commissioner, 112 W.Va. 555 (166 S.E. 5).

3. 'The Workmen's Compensation Appeal Board is a fact finding body, and its rulings on questions of fact will not be reversed or set aside by this Court unless clearly wrong.' Point 4 Syllabus, Burr v. State Compensation Commissioner, 148 W.Va. 17 (132 S.E.2d 636).

George G. Guthrie, Spilman, Thomas, Battle & Klostermeyer, Charleston, Caldwell, VanAntwerp, Welch & Hughes, Ashland, for appellant.

George G. Burnette, Jr., Charleston, for appellees.

CALHOUN, President.

This case is before the Court upon an appeal by Semet-Solvay Division, Allied Chemical Corporation, the employer, from an order of the West Virginia Workmen's Compensation Appeal Board entered on July 29, 1971, by which that boy, by a two to one vote of its members, affirmed a prior order of the State Workmen's Compensation Commissioner by which Katie L. Johnson, the claimant and appellee, was awarded dependenoy benefits as a consequence of the death of her husband, Willie Johnson, who, during his lifetime and until his retirement on November 6, 1964, had been employed by the appellant.

It is undenied that the immediate cause of the death of Willie Johnson, the employee, was a heart disease. The primary and basic question presented for decision on this appeal is whether the appeal board erred in holding that the claim was compensable. This holding was based upon a finding by the appeal board that silicosis was a 'major contributing cause to the death of the decedent.'

Prior to the date of his retirement, Willie Johnson was employed as a coal miner by Semet-Solvay Division, Allied Chemical Corporation, which hereafter in this opinion may be referred to as the employer. On February 18, 1965, the employee filed a claim for silicosis benefits and on December 14, 1965, he was granted a 40% Award of benefits for permanent partial disability due to silicosis. The claimant died on June 23, 1967, and the unpaid balance of the disability award was paid to his widow. On August 15, 1967, the widow filed a claim for dependency benefits based upon her contention that her husband's death resulted from silicosis.

On September 24, 1969, the State Workmen's Compensation Commissioner, who may be referred to hereafter in this opinion merely as the commissioner, made nonmedical findings which reflected the employee's prior employment and his exposure to the hazard of silicon dioxide dust for the prescribed statutory period. The employer filed a protest to the nonmedical findings. Following a hearing upon the protest, the commissioner, by an order dated February 16, 1970, affirmed his initial nonmedical findings and referred the claim to the Occupational Pneumoconiosis Board to determine whether the death of Willie Johnson, the employee, was caused by silicosis.

The medical evidence available to the Occupational Pneumoconiosis Board consisted of a death certificate, an autopsy report and various x-rays of the claimant's chest taken during his lifetime. The death certificate, which was signed by Dr. James V. McKenzie, stated that the cause of the death of the employee, Willie Johnson, was 'arteriosclerotic heart disease.' The death certificate also revealed that, at the time of his death, the employee suffered from carcinoma of the prostate, diabetes and 'coal miners pneumoconiosis', conditions which were listed on the death certificate as having contributed to the death but which were not related to the 'terminal disease condition.'

An autopsy was performed upon the body of the deceased employee on June 23, 1967, by Dr. Bobby L. Caldwell. The autopsy report, which was prepared by Dr. Caldwell, stated that the cause of death was as follows:

'Acute Myocardial Infarction of the Apical Area of the Heart Involving the Anterior Interventricular Septum and Anterior Walls of the Right and Left Ventricles Associated With Acute Thrombosis of the Anterior Descending Branch of the Left Coronary Artery in a Patient With Chronic Glomerulonephritis Diabetes Mellitus, and chronic Pulmonary Disease.'

On April 7, 1970, the Occupational Pneumoconiosis Board submitted its findings in writing, the pertinent portion of which was as follows:

'It is the opinion of the Occupational Pneumoconiosis Board on the basis of all the available medical evidence that this claimant did suffer with silicosis at the time of his death, that he did have evidence of cor pulmonale with hypertrophy of the right ventricle and that although the major cause of his death was arteriosclerotic heart disease with a coronary occulsion, We believe that chronic lung disease and primarily silicosis was a major contributing factor to the claimant's death.' (Italics supplied.)

The findings of the Occupational Pneumoconiosis Board were promptly protested by the employer and, on November 18, 1970, a hearing was held pursuant to the protest. Dr. W. Paul Elkin, a member of the Occupational Pneumoconiosis Board, testified at the hearing that the x-rays, taken of the employee during his lifetime, revealed the existence of silicosis and that this finding was confirmed by the postmortem examination.

Dr. James H. Walker, a member of the Occupational Pneumoconiosis Board, testified at the hearing that the employee died as a result of 'acute thrombosis of the left coronary artery' which was caused by an arteriosclerotic heart disease, a condition which preexisted the date of death. Dr. Walker stated in his testimony that, while the arteriosclerotic heart condition was not caused by silicosis, silicosis was a contributing cause of death. He testified as follows:

'Q Doctor, I note that the Board found that in its opinion silicosis contributed to the death of Mr. Johnson. Would you also find or did the Board find, or does the Board find now that chronic bronchial disease contributed to the death of Mr. Johnson?

'A Well, a review of the entire record, the Board made a diagnosis of chronic bronchial disease when it first examined the claimant and gave the claimant a 40 per cent disability rating due to the disease silicosis at that time. It is obvious at this time that the claimant was totally disabled at the time the Board examined him and that the overall percentage of disability as a result of silicosis was not the total disability at that time. I believe the chronic bronchial disease and the silicosis were directly responsible for the cor pulmonale, and I believe that this is a major contributing cause to this claimant's demise.

'Q So that, actually, at the time of the Board's examination of this man during his lifetime in 1965, you feel that at that time there was disability due to chronic bronchial disease and disability due to silicosis?

'A Yes, sir, and as I review the record now and the experience of the other cases we have had during the interval period, I believe today we would have estimated a far greater percentage for his silicosis.

'Q In other words, looking back on it, you would feel that probably the claimant was totally disabled due to chronic bronchial disease and his silicosis?

'A Yes, sir, and that the silicosis contributed a greater percentage than 40 per cent.

'Q. Now, Doctor, you feel then that the chronic bronchial disease and the silicosis caused cor pulmonale?

'A Yes, sir.

'Q Maybe I had better ask you what cor pulmonale means.

'A It means right heart disease. It means that there is--

'Q Enlargement of the right side of the heart?

'A Enlargement of the right side of the heart due to pulmonary disease.

'Q Does that mean then that the heart has to work harder in acquiring sufficient oxygen from the lungs?

'A The right side of the heart has to work harder to get the blood through the lungs, while the lungs do not necessarily provide adequate transfer of gas or oxygen into the heart.

'Q So that is why the Board comes to the conclusion that silicosis did contribute to the death?

'A Yes, sir.'

At the close of the hearing, Dr. W. Paul Elkin testified that he agreed with the statements made by Dr. Walker in his testimony.

By an order dated December 15, 1970, the commissioner affirmed the findings of the Occupational Pneumoconiosis Board and awarded dependency benefits to the claimant, Katie L. Johnson. Thereafter, the employer appealed from the order of the commissioner to the West Virginia Workmen's Compensation Appeal Board which affirmed the order of the commissioner. It is from this decision of the appeal board that the appeal to this Court was granted.

The opinion of the appeal board contains the following language:

'* * * The Board is of the opinion that the record in this case established...