Machala v. State Compensation Com'r
| Citation | 155 S.E. 169,109 W.Va. 413 |
| Decision Date | 30 September 1930 |
| Docket Number | 6843. |
| Parties | MACHALA v. STATE COMPENSATION COM'R. |
| Court | Supreme Court of West Virginia |
Submitted September 23, 1930.
Syllabus by the Court.
Hearsay evidence in connection with competent and sufficient corroborating testimony may be considered as basis for compensation award (Code, c. 15P, § 44).
While under our statute, an award may not be based entirely upon hearsay, such evidence may be considered in connection with competent and sufficient corroborating evidence.
Evidence held sufficient to show injury to employee causing death arose out of employment.
A case in which the evidence supports a finding in favor of claimant.
Proceedings under the Workmen's Compensation Act by Anna Machala, the State Compensation Commissioner refusing an award, and claimant appeals.
Reversed and remanded with directions.
John P Arbenz, of Wheeling, for appellant.
Howard B. Lee, Atty. Gen., R. Dennis Steed, Asst. Atty. Gen., and Charles D. Smith, Secretary State Compensation Com'r, of Charleston, for respondents.
Anna Machala, widow, filed a claim with the compensation commissioner on the theory that her husband's death resulted from a blow on the right side of the abdomen from the end of a long iron stoking bar with which in the regular course of his employment, he was raking or cleaning the fire under a boiler of the Wheeling Steel Corporation. She appeals from an order refusing her an award.
On a former hearing, this court, being of the opinion that the evidence in regard to the cause and manner of the injury had not been sufficiently developed, remanded the case for further investigation in regard to certain ""vital surrounding circumstances," such as, possibility of injury en route to and from work, and, if decedent had received the alleged blow at 10:30 p. m., could he have continued until quitting time (half hour later), and then have walked home (1 1/2 miles) without nausea or undue pain? Machala v. Compensation Com'r, 108 W.Va. 391, 151 S.E. 313.
It appears that about 1:30 a. m., following the alleged accident, Machala awoke from sleep very sick, and vomited. At 9 o'clock the family physician, Dr. Zink, found him in bed suffering from his right side. An examination revealed a swollen condition, a noticeable tenderness, and slight discoloration on the body over the right lobe of the liver, the point of the alleged blow. Five days later death came. A post mortem, held seven hours thereafter by Dr. Neidermyer, at the instance of the Wheeling Steel Corporation, disclosed an unnatural condition in the region of the right lobe of the liver. Drs. Zink and Kirkland were present, and both attribute the condition to a trauma, and state that, in their opinion, death resulted from such injury. Dr. Neidermyer, who never saw decedent alive, while reaffirming his statement on the former hearing to the effect that "no other pathology was found," added that he believed Machala's death resulted from "coronary embolus." However, no attempt was made to determine that this was the cause at the autopsy, which Dr. Neidermyer admits was very unsatisfactory. Considering all of the attending circumstances, the evidence preponderates largely in favor of the theory advanced by Drs. Zink and Kirkland, whose testimony we have no reason to question.
This brings us to the phase of the case which seems to have influenced the commissioner most in his finding: Did decedent receive an injury in the course of his employment? True, nobody saw the alleged accident, and nobody knows anything about it except from decedent's own statements. However, evidence was introduced to the effect that decedent had never been injured before and was well and strong when he went to work on the day of his injury; that no harm came to him while on his way home from the mill with his fellow workmen, one of whom walked to within two blocks of his home; that decedent was not hurt in his home between the time of his return and the visit of the doctor at 9 o'clock the following morning; that nausea was not necessarily an immediate result of such an injury as disclosed by the autopsy; that it was not improbable that he could have continued working for a short time, and even have walked home thereafter; and that such injury, considering the nature of his employment,...
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