Justice v. State Compensation Director

• Decision Date: 23 February 1965
• Docket Number: No. 12390,12390
• Citation: 140 S.E.2d 424,149 W.Va. 216
• Court: West Virginia Supreme Court
• Parties: Estill JUSTICE v. STATE COMPENSATION DIRECTOR and Gilbert Lumber Company.

Page 424

140 S.E.2d 424

149 W.Va. 216

Estill JUSTICE v. STATE COMPENSATION DIRECTOR and Gilbert Lumber Company.

No. 12390.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 13, 1965.

Decided Feb. 23, 1965.

Syllabus by the Court

When a claimant makes timely application in writing, under the provisions of Code, 1931, 23-5-1a and 1b, was amended, for further adjustment of his claim and upon such application establishes a fact or facts not previously considered by the Director in his former findings which would entitle claimant to greater benefits than he was already received, the claim should be reopened, and this Court will reverse an order of the Workmen's Compensation Appeal Board affirming an order of the Director which denies a reopening of the claim.

Jeter, Jeter & Jeter, James C. Jeter, Charleston, for appellant.

Pete Barrow, Jr., Charleston, for appellee.

CAPLAN, Judge.

Upon the application of the claimant, Estill Justice, this Court, on November 23, 1964, granted an appeal from an order of the Workmen's Compensation Appeal Board, entered September 10, 1964, which affirmed a previous order of the Director holding that claimant had not made a proper showing for a reopening of his claim. Claimant here asserts that he has made a proper showing for a reopening under the provisions of Code, 1931, 23-5-1a and 1b, as amended. He does not contend that his application for reopening discloses 'a progression or aggravation' of his condition but that 'some other fact or facts which were not theretofore considered' by the Director in his former findings have appeared which entitle him to greater benefits than he is presently receiving.

The claimant, Estill Justice, on May 23, 1957, while in the employ of appellee Gilbert Lumber Company, and during the course thereof, sustained a fracture of his left hip. A claim was filed, which was held to be compensable, and the claimant was paid compensation benefits on a temporary basis. During a part of this time claimant was confined in a mental institution. On March 9, 1960, claimant was granted a fifteen per cent permanent partial disability award based upon the report of Doctor J. M. Carter. In his report Doctor Carter noted that claimant walked with a slight limp, due in part to the left being one-half inch shorter than the right leg. This award was protested by claimant and, upon a hearing, the report of Doctor C. B. Buffington was introduced in evidence in his behalf. Doctor Buffington found a one-inch shortening of the left leg and stated in his report: 'This man has considerable shortening of this leg which will require a built up shoe or sooner or later he will have low back strain and difficulty from that * * * when one tries to look at the overall picture of this case, it is my impression that he has a fifty (50) per cent loss of this extremity, that is including the hip downward, or a thirty (30) per cent partial permanent disability.'

The Director thereupon set aside his previous ruling of March 9, 1960, and granted claimant a twenty per cent permanent partial disability award. The claimant appealed this ruling to the Workmen's Compensation Appeal Board. The Board, being of the opinion that 'the condition of the claimant has not been completely developed especially from a mental standpoint to determine what, if any, part of the claimant's disability may stem from his mental condition and if such disability and any causal Connection with the claimant's injury, reversed the Director and remanded the case with instructions to have the claimant examined regarding his mental disability and after such examination to evaluate the claim from an orthopedic and mental standpoint.

Pursuant to the remand, the Director referred the claimant to Doctor H. M. Mills, an orthopedist, and Doctor R. L. Heinlein, a psychiatrist. Doctor Hills found claimant to be totally disabled at the time of his examination and that in his present condition 'he will never he able to return to work.' Doctor Heinlein reported claimant 'appears to have a total and probably permanent psychiatric disability. * * * It is impossible for me to directly relate a part or all of a schizophrenic illness of this type to a physical traumatic incident'. In view of Doctor Heinlein's report, the Director requested a supplemental opinion from Doctor Hills as to the degree of permanent partial disability related to the fractured femur. Doctor Hills replied that in view of the claimant's psychiatric problem, surgery is probably not indicated and that he be...