Lacy v. Compensation Com'r

• Decision Date: 15 January 1929
• Docket Number: 6417.
• Citation: 146 S.E. 375,106 W.Va. 555
• Parties: LACY v. COMPENSATION COMMISSIONER.
• Court: West Virginia Supreme Court

146 S.E. 375

106 W.Va. 555

LACY v. COMPENSATION COMMISSIONER.

No. 6417.

Supreme Court of Appeals of West Virginia.

January 15, 1929

Submitted January 9, 1929.

Syllabus by the Court.

A finding of fact by the state compensation commissioner, based on substantial evidence, not at variance with a clear preponderance of the whole evidence, will not be disturbed on appeal.

A case wherein the compensation commissioner was warranted in disallowing further payments to the petitioner on the ground that medical examination failed to reveal any permanent ratable disability because of the accident suffered by petitioner.

Appeal from Ruling of Commission.

Proceeding under the Workmen's Compensation Law by Arnold Lacy. From a ruling of the Commission of Appeals approving the termination of compensation by the Compensation Commissioner claimant appeals. Affirmed.

J Sherman Lilly, of Charleston, for appellant.

Howard B. Lee, Atty. Gen., and R. Dennis Steed, Asst. Atty. Gen for respondent.

MAXWELL J.

On the 9th day of September, 1926, petitioner was injured about the chest and otherwise by being squeezed between a mine car and the roof of the mine where he was an employee of the Coal River Collieries Company, at Prenter, W.Va. The chest injury affected the right lung, necessitating an incision for drainage. There followed a partial collapse of the lower half of the right lung. He also suffered from an attack of pneumonia which greatly weakened his condition.

At the expiration of about 19 months following the injury, during 52 weeks of which time the petitioner had been allowed compensation at the rate of $13.61 per week, the allowance was terminated by the compensation commissioner on the ground that physical examination failed to reveal that the petitioner had any ratable permanent disability as the result of his injury. On appeal to the commission created by section 57, c. 68, Acts of the Legislature of 1925, the procedure of the compensation commissioner was approved. From the said action of the commission this appeal is prosecuted.

In an affidavit of the 21st of May, 1927, the petitioner says that his lungs are weak and that he gets tired easily when he walks around. Statements of physicians made upon examinations of the petitioner several months subsequent to the injury follow:

On the 5th of March, 1927, Dr. J. B. Lohan, who had first treated the petitioner on the day of his injury, stated: "This is to certify that I have today examined Arnold Lacy of MacCorkle, West Virginia, and find that he still suffers from myocardial disease and collapsed base of right lung, which are the result of an accident last September, for which I also treated him. In my opinion Mr. Lacy should not work for at least six months." On the 11th of April, 1927, Dr. R H. Walker, chief medical examiner of the workmen's compensation department, and who had operated on claimant a few days following his accident in September, 1926, again examined petitioner and made a report of his examination wherein he states that the petitioner had suffered severe contusion of the chest which later developed into empyema of the right side; that the patient carried a scar between seventh and eighth ribs (presumably where drainage had been effected), but that this was not causing any trouble, and, in the opinion of the doctor, the claimant was then able to do light work. Under an examination of May 20, 1927, Dr. C. N. Watts found that the petitioner had not yet recovered from the weakened condition resulting from the attack of pneumonia which he suffered soon after the accident, and that at the time of the examination conditions were such that the physician could not determine how much longer the patient would be disabled. February 10, 1928, Dr. Walker made an X-ray examination which disclosed a fibrosis of the base of the right lung, probably the result of empyema; that there was then no definite evidence of active infection. The doctor stated that in his opinion the patient was "able to do some light work of some type." On the 10th of April, 1928, Dr. Lohan again examined the petitioner and reported a partial collapse of the lower half of the right lung, which, in the opinion of the physician, is a permanent disability. On the following day, Dr. Walker again examined petitioner and reported that his condition was the same as at the time of the examination February 10, 1928. The doctor said: "It is my belief...