Kincannon v. Ott

• Decision Date: 14 January 1930
• Docket Number: (No. 6697)
• Court: West Virginia Supreme Court
• Parties: Charles Kincannon v. Lee Ott, Compensation Commissioner

108 W.Va. 428

Charles Kincannon

v.Lee Ott, Compensation Commissioner

(No. 6697)

Supreme Court of Appeals of West Virginia.

Submitted January 8, 1930.

Decided January 14, 1930.

(Rehearing denied February 10, 1930);

Master and Servant Compensation Commissioner's Fact Finding Will Not Generally be Set Aside, if Supported by Substantial Evidence.

"The finding of fact by the Compensation Commissioner should be treated as the finding of a judge, or the verdict of a jury, and will not, as a general rule, be set aside if there is substantial evidence to support it." Heaton v. Comp. Com'r, 106 W. Va. 563.

Proceeding under the Workmen's Compensation Act by Charles Kincannon. From a decision of Lee Ott, State Compensation Commissioner, refusing to grant additional compensation, claimant appeals.

Affirmed.

England & Ritchie, for appellant.

Howard B. Lee, Attorney General, R. Dermis Steed, Assistant Attorney General, and Chas. D. Smith, for respondents.

Lively, President:

This claim was considered before by the Court in its decision reported in 107 W. Va. 533, 149 S. E. 665. The claimant had then received compensation on the basis of a fifty per cent partial permanent disability from the workmen's compensation fund, and the Commissioner had refused to reopen the claim for additional compensation because of a purported lump sum settlement contract executed by the claimant in 1927, discharging the workmen's compensation fund and the Commissioner from further payments. The Court held that the contract was void and directed the Commissioner to re-open the claim "for the purpose of determining from the evidence already, or to be subsequently brought, before him, the degree of claimant's injury, and his compensation therefor." The degree of claimant's injury was not then an issue before the Court, although the opinion did state: '' From the record before us, it would seem that the claimant is totally disabled."

Acting upon the Court's decision, the Commissioner reopened the case, provided for an examination of the claimant by the Chief Medical Examiner of the Compensation Department and by two practicing physicians, and ordered a further investigation of the claimant's activities since his injury in 1924. The inspector for the department learned that the claimant had returned to work in August, 1925, and had been employed with a fair degree of regularity from that time until the early part of 1929 when the claimant came to Charleston for the purpose of seeking additional compensation. The record shows that, from October, 1927, to September, 1928, the claimant loaded more cars of coal than he had the year preceding his accident, and that during the nine months of 1928 during which he worked for the Arlington Coal & Coke Company, the claimant loaded more cars than the average number of ears accredited to seventeen other employees of that company. Claimant says, however, that his work was done with the assistance of a "buddy" who gave him a great deal of the coal with which he is accredited. This fact is controverted by several "buddies."

A physical examination was made of the claimant in October, 1929, by Dr. R. H. Walker, Dr. Henry R. Glass, and Dr. Russel Kessel, Chief Medical Examiner for the Compensation Department. From the report of this examination, it would appear that claimant has improved since he was ex-amined in August, 1925. At that time, Dr. "Walker found little movement of the left foot and loss of sensation of the left leg below the knee. Dr. Glass found this condition corrected and reported that "there is now no paralysis nor anaesthesia present in the lower extremities." This finding is disputed, however, in the report of examination made by Dr. II. D. Hatfield of Huntington,...