Keller v. State Workmen's Compensation Com'r

• Decision Date: 19 June 1973
• Docket Number: No. 13347,13347
• Citation: 156 W.Va. 760,197 S.E.2d 306
• Parties: Phyllis E. KELLER, widow of Raymond L. Keller v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Frito-Lay, Inc.
• Court: West Virginia Supreme Court

Page 306

197 S.E.2d 306

156 W.Va. 760

Phyllis E. KELLER, widow of Raymond L. Keller v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Frito-Lay, Inc.

No. 13347.

Supreme Court of Appeals of West Virginia.

Submitted May 1, 1973.

Decided June 19, 1973.

Syllabus by the Court

1. Where the evidence in a workmen's compensation case discloses that a decedent incurred a compensable injury which aggravated a pre-existing malignancy and accelerated death, the claimant's claim for dependent benefits is compensable although the pre-existing malignancy would have eventually caused death without the injury.

2. A claimant in a workmen's compensation death case must bear the burden of proving his claim but in doing so it is not necessary to prove to the exclusion of all else the causal connection between the injury and the death, it being sufficient to show that the injury aggravated a preexisting condition and accelerated death.

James, Wise, Robinson & Magnuson, E. Glenn Robinson, David M. Flannery, Charleston, for appellant.

No appearance for appellees.

SPROUSE, Judge:

This is an appeal by the claimant, Phyllis E. Keller, widow of Raymond L. Keller, from a January 29, 1973, final order of the Workmen's Compensation Appeal Board affirming the State Workmen's Compensation Commissioner's order which denied the claimant's application for dependent benefits.

The Appeal Board ruled that, while the decedent had incurred a compensable injury to his back in the course of his employment, this injury did not cause his death. The sole question presented for decision is whether the injury which the claimant's decedent sustained had a sufficient causal connection with his death to render the claim for dependent benefits compensable under the provisions of Chapter 23, Article 4, Section 10 of Code, 1931, as amended.

The claimant's decedent was employed as a District Sales Manager of Frito-Lay, Inc., and on January 19, 1971, during the course of his employment suffered an injury to his back while installing display racks for his employer. He was in some discomfort thereafter, but continued to work until February 12, 1971, when he was examined by Dr. E. H. Heilman. The deceased related a history of back injury to Dr. Heilman. He stated that he suffered pain in his back while lifting racks on January 19, 1971. Following an examination of the decedent, Dr. Heilman advised strict bed rest and medication for pain. However, because of increased pain, the patient was admitted to the hospital on February 16, 1971. Upon his discharge on February 27, 1971, he was referred to Dr. Rank O. Dawson. Dr. Dawson operated on the decedent on March 19, 1971, and found a large tumor in the mid-abdomen region. The biopsy report revealed the tumor to be malignant. The deceased died on April 26, 1971, in New York City while under the care of Dr. Daniel G. Miller, a cancer specialist.

The record contains the testimony of several witnesses who corroborated the fact that the decedent suffered the injury to his back during the course of his employment on January 19, 1971. It is unnecessary, however, to discuss this evidence inasmuch as the Workmen's Compensation Appeal Board concluded that the back injury was work-connected and this ruling is not contested. The Appeal Board found, however, that the work-related injury was not the cause of death.

The only medical evidence admitted into the record was presented by the claimant and consists of two reports from Dr. Heilman and two reports from Dr. Miller. Dr. Heilman's reports merely disclosed the work-related injury, and his first report indicated pain in the dorsal spine possibly due to a sprain in the spine. Dr. Miller in his first report concluded that: 'the immediate cause of Mr. Keller's death was massive gastrointestinal bleeding due to metastatic malignant melanoma invading the gastrointestinal tract. It can be stated with reasonable certainty that the malignant melanoma predated the January 12, 1971, episode. In a patient with disseminated intra-abdominal carcinoma, any injury such as the one Mr. Keller sustained might be considered an aggravating episode sufficient to precipitate or to hasten the onset of a complication, however inevitable that complication might be.'

In Dr. Miller's second report, he stated: 'In my opinion, there is no question but that the back injury which the late Mr. Raymond L. Keller received on January 12, 1971 accelerated the course of his intraabdominal malignant melanoma with its attendant gastrointestinal bleeding, and thus, did hasten the onset of Mr. Keller's death.'

Although this evidence is brief, there is no testimony or other documents contradicting the statements of either Dr. Heilman or Dr. Miller. It is, of course, fundamental that where there is a causal connection between an injury received by an employee in the course of and resulting from his employment and his death, the claim for compensation by the widow is compensable. Evans v. State Compensation Director, 150 W.Va. 161, 144 S.E.2d 663; Vankirk v. State Compensation Commissioner, 144 W.Va. 447, 108 S.E.2d 567.

This Court, however, has never decided the compensability of a death which would have resulted inevitably from a pre-existing disease but which death was hastened by a compensable injury.

It was decided in Lockhart v. State Compensation Commissioner, 115 W.Va. 144, 174 S.E. 780, that the death of an employee was compensable where the injury produced a weakened condition but for which death would not have occurred at the time. The employee there became affected with paint poisoning during the course of his employment and died as a result of the reaction of the paint poisoning affecting a pre-existing condition in his ankle. The Lockhart case, of course, is distinguishable from the case at hand in that there the employee would not have died but for the work-related disease. In the...