Jordan v. State Workmen's Compensation Commissioner, No. 13172

CourtSupreme Court of West Virginia
Writing for the CourtHADEN; CAPLAN
Citation191 S.E.2d 497,156 W.Va. 159
PartiesJames JORDAN v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Union Carbide Corporation.
Docket NumberNo. 13172
Decision Date09 October 1972

Page 497

191 S.E.2d 497
156 W.Va. 159
James JORDAN
v.
STATE WORKMEN'S COMPENSATION COMMISSIONER and Union Carbide
Corporation.
No. 13172.
Supreme Court of Appeals of West Virginia.
Submitted April 18, 1972.
Decided Sept. 6, 1972.
Dissenting Opinion Sept. 12, 1972.
Rehearing Denied Oct. 9, 1972.

Page 498

Syllabus by the Court

1. The question in a workmen's compensation case as to whether the employment aggravated or, combined with the [156 W.Va. 160] internal weakness or infirmities of claimant to produce the injury, is a question of fact, not law, and a finding of the Workmen's Compensation Appeal Board on this question will not be disturbed on appeal by this Court, unless such finding is plainly wrong.

2. 'This Court will not reverse a finding of fact made by the Workmen's Compensation Appeal Board unless it appears from the proof upon which the appeal board acted that the finding is plainly wrong.' Syllabus, Dunlap v. (State) Workmen's Compensation Commissioner, 152 W.Va. 359 (163 S.E.2d 605).

Franklin W. Kern, Charleston, for appellant.

Benjamin D. Tissue, South Charleston, for appellees.

HADEN, Judge.

This appeal was granted December 13, 1971 upon the application of the claimant, James Jordan, who seeks reversal of the final order of the Workmen's Compensation Appeal Board entered September 29, 1971 wherein the board affirmed the ruling of the State Workmen's Compensation Commissioner entered April 19, 1971 which denied compensation for the reason that claimant's disability was not due to an injury received in the course of and as a result of employment.

On January 6, 1969, the date of the alleged industrial accident, James Jordan was employed by Union Carbide Corporation (hereinafter called 'Carbide') and had worked for this company for about fifteen years. He was assigned on the day in question (and for about two years previously) to the insulation department where he was performing his usual and customary duties which included fabricating, boxing, lifting, and otherwise handling insulation material. The evidence presented to the commissioner and the appeal board was in dispute as to [156 W.Va. 161] how the harm to claimant took place. There are essentially three versions of occurrence.

First, according to the claim form executed and filed by the claimant some three weeks after the accident, Jordan said that the cause was 'lifting box & had a pain in the back' and he described his injury as 'low back pain.' The partial history taken

Page 499

by Carbide's nurse on the date of the injury also substantiates this version.

Second, Doctor Sexton, the plant physician who initially treated the claimant on the day of the injury, said that claimant told him he 'was picking up a box full of insulation. He set the box on the table, then he set the box on a wagon and pulled it in to another building. He felt a sharp pain in his back which was in the fabricating shop, and it occurred at 8:05 a.m.'

The third version was related to the commissioner's hearing examiner on November 21, 1969. The claimant testified that when he bent down to pick up a seventy-five pound box of insulation and began lifting it, his left foot 'kind of slipped a little bit' and that he simultaneously felt the onset of pain. Further testimony presented by the claimant was that his foot slipped because of the sudden movement of the wooden mat on which he was standing. He added that the slipping was a problem often resulting from a wax substance which had dripped from ovens onto the floor work area through cracks in the mats, and that to alleviate the problem on previous occasions the claimant had wired the mats to the legs of work tables. It was stipulated in the record that a co-employee of the claimant would testify that the mats had slipped on occasion but that the employee did not see the mat slip with the claimant on it on the date of the injury.

Contrary testimony from the plant physician indicated there was no mention by the claimant on the date of the accident of any slip or trip or other unusual occurrence in relation to the back injury, although the doctor said he didn't precisely ask the questions to elicit affirmative or [156 W.Va. 162] negative responses to 'slip' or 'trip'. The plant safety engineer who interviewed claimant approximately a week to two weeks after the accident occurred said the claimant did not tell him of any specific occurrence such as a slip, trip or fall, and his report makes a specific note that 'there was no accident such as a slip, trip, fall etc.'

The claimant testified and medical records documented that he had an extensive medical history of a preexisting back condition. His employment medical record and non-occupational medical records show he was treated intermittently on twenty-three occasions for back complaints beginning with the year 1953 and concluding with a treatment as late as August of 1968.

On the date of the injury for which claimant seeks compensation, the plant physician determined the claimant was in so much pain that he sent him home to the care of the claimant's personal physician.

The claimant contends that his evidence establishes a single fortuitous event resulting in an injury in the course of employment. He contends that the liberality rule was ignored in the proof of his claim and that the evidence here clearly establishes a new compensable back injury superimposed on a preexisting condition.

Carbide contends that although some or slight evidence does suggest a 'slip' incident to the lifting, there is a stronger suggestion that no slip, trip or fall took place and that consequently there was no single isolated fortuitous event occurring which established a compensable accident. In addition, Carbide contends that claimant came to work with an old back condition and was merely doing his regular job and performing usual and customary duties when the harm occurred and that these facts alone were not sufficient to charge the employer for compensation. Carbide also strongly urges that, in any event, the findings of the appeal board are not clearly and plainly wrong and therefore should be affirmed on this appeal.

[156 W.Va. 163] In a recent 'heart attack' case, this Court restated the basic requisites of any successful claim arising by industrial accidents as set forth in the 'heart' of the Compensation Act, Section 1, Article 4, Chapter 23, W.Va.Code, 1931, as amended.

Page 500

Barnett v. State Workmen's Compensation Commissioner, 153 W.Va. 796, 172 S.E.2d 698 (1970) held 'In order for a claim to be held compensable under the Workmen's Compensation Act, three elements must co-exist: (1) a personal injury (2) received in the course of employment And (3) resulting from that employment.' Syllabus, point 1. From the evidence in this case it is apparent that the second of the above elements is clearly satisfied. The manifestation of the claimant's injury, pain, occurred some time around 8:05 a.m. on January 6, 1969 while the claimant was performing his usual and customary duties for Carbide in the plant's insulation department.

The question for decision in this case is whether the factual determinations of the appeal board that the claimant did not suffer a personal injury resulting from his employment, are plainly and clearly wrong.

West Virginia is a jurisdiction which requires proof of injury by accident. Martin v. State Compensation Commission, 107 W.Va. 583, 149 S.E. 824 (1929). Except in cases of occupational disease, a claimant muat prove an attributable workrelated accident before his disability will be held compensable and chargeable to his employer. De La Mater, 'A Brief Survey of the West Virginia Law of...

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25 practice notes
  • Marlin v. Bill Rich Const., Inc., No. 23121
    • United States
    • Supreme Court of West Virginia
    • February 19, 1997
    ...Martin v. State Compensation Commissioner, 107 W.Va. 583, 149 S.E. 824 (1929)." Jordan v. State Workmen's Compensation Commissioner, 156 W.Va. 159, 163, 191 S.E.2d 497, 500 (1972). See also Barnett v. State Workmen's Compensation Commissioner, 153 W.Va. 796, 172 S.E.2d 698 (1970); 21 M.J., ......
  • Mandolidis v. Elkins Industries, Inc., Nos. 13926
    • United States
    • Supreme Court of West Virginia
    • June 27, 1978
    ...malice). 3 The workmen's compensation scheme is based on personal injury "by accident." Jordan v. State Workmen's Compensation Comm'r., 156 W.Va. 159, 191 S.E.2d 497 (1972); therefore, while this standard seems very strict it must be remembered that it's not the depravity of the employer's ......
  • Conley v. Workers' Compensation Div., No. 23677
    • United States
    • Supreme Court of West Virginia
    • February 20, 1997
    ...upon which the appeal board acted that the finding is plainly wrong.' Syl. pt. 2, Jordan v. State Workmen's Compensation Commissioner, 156 W.Va. 159, 191 S.E.2d 497 (1972), quoting, Syllabus, Dunlap v. State Workmen's Compensation Commissioner, 152 W.Va. 359, 163 S.E.2d 605 (1968)." Syllabu......
  • Rhodes v. WORKERS'COMPENSATION DIV., No. 27831.
    • United States
    • Supreme Court of West Virginia
    • December 11, 2000
    ...upon which the appeal board acted that the finding is plainly wrong.' Syl. pt. 2, Jordan v. State Workmen's Compensation Commissioner, 156 W.Va. 159, 191 S.E.2d 497 (1972), quoting, Syllabus, Dunlap v. State Workmen's Compensation Commissioner, 152 W.Va. 359, 163 S.E.2d 605 (1968)." Syllabu......
  • Request a trial to view additional results
25 cases
  • Marlin v. Bill Rich Const., Inc., No. 23121
    • United States
    • Supreme Court of West Virginia
    • February 19, 1997
    ...Martin v. State Compensation Commissioner, 107 W.Va. 583, 149 S.E. 824 (1929)." Jordan v. State Workmen's Compensation Commissioner, 156 W.Va. 159, 163, 191 S.E.2d 497, 500 (1972). See also Barnett v. State Workmen's Compensation Commissioner, 153 W.Va. 796, 172 S.E.2d 698 (1970); 21 M.J., ......
  • Mandolidis v. Elkins Industries, Inc., Nos. 13926
    • United States
    • Supreme Court of West Virginia
    • June 27, 1978
    ...malice). 3 The workmen's compensation scheme is based on personal injury "by accident." Jordan v. State Workmen's Compensation Comm'r., 156 W.Va. 159, 191 S.E.2d 497 (1972); therefore, while this standard seems very strict it must be remembered that it's not the depravity of the employer's ......
  • Conley v. Workers' Compensation Div., No. 23677
    • United States
    • Supreme Court of West Virginia
    • February 20, 1997
    ...upon which the appeal board acted that the finding is plainly wrong.' Syl. pt. 2, Jordan v. State Workmen's Compensation Commissioner, 156 W.Va. 159, 191 S.E.2d 497 (1972), quoting, Syllabus, Dunlap v. State Workmen's Compensation Commissioner, 152 W.Va. 359, 163 S.E.2d 605 (1968)." Syllabu......
  • Rhodes v. WORKERS'COMPENSATION DIV., No. 27831.
    • United States
    • Supreme Court of West Virginia
    • December 11, 2000
    ...upon which the appeal board acted that the finding is plainly wrong.' Syl. pt. 2, Jordan v. State Workmen's Compensation Commissioner, 156 W.Va. 159, 191 S.E.2d 497 (1972), quoting, Syllabus, Dunlap v. State Workmen's Compensation Commissioner, 152 W.Va. 359, 163 S.E.2d 605 (1968)." Syllabu......
  • Request a trial to view additional results

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