Lynchburg Foundry Co v. Irvin

• Decision Date: 13 October 1941
• Citation: 16 S.E.2d 646
• Parties: LYNCHBURG FOUNDRY CO. et al. v. IRVIN.
• Court: Virginia Supreme Court

16 S.E.2d 646

LYNCHBURG FOUNDRY CO. et al.

v.IRVIN.

Supreme Court of Appeals of Virginia.

Oct. 13, 1941.

Appeal from Industrial Commission.

Proceeding under the Workmen's Compensation Act by Thomas S. Irvin, opposed by Lynchburg Foundry Company, employer, and Employers Liability Assurance Corporation, insurance carrier. From an order of the Industrial Commission of Virginia allowing a claim for compensation, the employer and the insurance carrier appeal.

Order amended and affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Edmunds, Whitehead, Baldwin & Graves, of Lynchburg, for appellants.

Basil G. Watkins, of Lynchburg, for appellee.

SPRATLEY, Justice.

The appellants, an employer and its insurance carrier, complain of an order entered by the Industrial Commission of Virginia allowing a claim for compensation for injury, filed against the employer by the appellee, the employee.

At the original hearing before a member of the Industrial Commission, the appellants denied the claim solely on the ground that the injury did not result from an accident. They here contend that the evidence does not support a finding that the injury arose either by accident or out of the course of the employment of the claimant, within the meaning of The Virginia Workmen's Compensation Act, Virginia Code, 1936, section 1887 et seq.

Two witnesses, the claimant and his attending physician, testified at the hearing. The facts found from their evidence by the majority of the Commission may be summarized thus:

Thomas S. Irvin, the claimant, was employed as a core maker for the Lynchburg Foundry Company, a manufacturer of metal pipe. He was sixty-four years of age and had been engaged in that type of work for twenty-five years. His duties required him to make cores of sand, round them up, put them on plates in a furnace, heat them until they became hard, then take them out and dress them off.

While employed in this work, Irvin wore a pair of safety shoes. On the front of each of these shoes was a metal guard or tip to prevent the toes of the workmen from being mashed by the frequent falling of clamps and plates handled by them. His shoes were purchased from his employer who recommended, but did not require, them to be used by its employees.

Irvin had worn the shoes, during working hours only, for about a month and had not, prior to the event hereinafter mentioned, felt or suffered any trouble with his feet from their use.

On a day in the early part of April, 1940, while stooping to get sand in connection with his work, he felt a painful or pinching sensation in the front of his right foot. Thinking it was a grain of sand, he removed the shoe to examine his foot and found a red spot just back of the knuckle of the little toe. The skin had not been broken nor was there a blister. He showed the injured foot to a fellow-workman, then cut off the offending part of the shoe--all of one side and the "whole top of it"--and continued with his work.

A medical doctor, who examined the claimant's foot on May 2nd, said he found, at that time, "a peculiar little punched out place on the top of the foot." He described it as an "ulcer about one-fourth the size of a dime" on the "dorsum of the foot just back of the little toe." The physician thought it was a "fungus infection" or possibly a "malignancy." He excised it to make a fresh surface, hoping that it would then heal better. The sore place became progressively worse, however, because of an underlying pathological condition, a hardening of the arteries, which hindered the circulation of the blood. In September, 1940, it became necessary to amputate the foot.

On May 15, 1940, Irvin made a formal report of his injury to his employer andthen stopped his work to secure medical treatment. From the time of the discovery of his injury until May 15th, he took certain sanitary precautions to protect his foot from infection. When asked if the condition of his foot was caused by the constant rubbing of the shoe, he said that he took the shoe off when he first felt it hurting him. It was then that he cut off part of the front of his shoe.

The majority of the Commission further found that there was "nothing to indicate an occupational condition or a repetition of pressure or a rubbing of the toe by the action of the shoe, " and held that the employee sustained an injury by an accident arising out of and in the course of his employment. The employee was awarded compensation of $9.32 per week for total disability from May 15, 1940, to September 27, 1940, and like compensation beginning September 27, 1940, for one hundred and twenty-five weeks for the loss of his right foot, in addition to the medical, surgical, and hospital services incident to his injury.

The evidence of the claimant is sufficient to sustain the finding of the Commission as to the above stated facts. While some contradiction may be thought to arise from speculative inferences, there is no positive or direct evidence in conflict therewith. The facts so found are, therefore, binding and controlling upon us, Code, section 1887 (61), and it only remains to be determined whether they are sufficient in law to justify the allowance of compensation.

The expressions "injury by accident" and "arising out of and in the course of the employment, " Code, section 1887 (2) (d), have given rise to many legal controversies. Time after time we have expressly held that they should be liberally construed in favor of the workmen to carry out the humane and beneficent purposes of the Act. Bradshaw v. Aronovitch, 170 Va. 329, 196 S.E. 684; City of Alexandria v. McClary, 167 Va. 199, 188 S.E. 158; Tyree v. Commonwealth, 164 Va. 218, 179 S.E. 297; Big Jack Overall Company v. Bray, 161 Va. 446, 171 S.E. 686.

While the authorities differ in their definition of the word "accident, "...