Manning v. State Compensation Com'r

• Decision Date: 22 September 1942
• Docket Number: 9395.
• Citation: 22 S.E.2d 299,124 W.Va. 620
• Parties: MANNING v. STATE COMPENSATION COMMISSIONER et al.
• Court: West Virginia Supreme Court

22 S.E.2d 299

124 W.Va. 620

MANNING v. STATE COMPENSATION COMMISSIONER et al.

No. 9395.

Supreme Court of Appeals of West Virginia.

September 22, 1942

McKee & McKee, of Wheeling, for appellant.

Austin V. Wood, of Wheeling, for appellee.

ROSE Judge.

This appeal was granted to Earl Manning, an employee of Centre Foundry & Machine Company, from an order of the workmen's compensation appeal board by which an award in his favor by the compensation commissioner was reversed and annulled.

Manning was the operator of an electric crane. On Monday, June 16 1941, he reported to his superintendent that on the Friday preceding he had injured his left hand in working the crane and was, by the superintendent, ordered to report to Dr Murphy, the company physician. This doctor, after examination on that day, treated him until June 24th, when the claimant resorted to Dr. Weiler, his own family physician. Dr. Weiler hospitalized the claimant under treatment and, on July 18th amputated the left index finger between the knuckle and first joint. The patient was discharged from the hospital July 27th, but was re-hospitalized from August 10th to September 3rd, and from September 19th to October 17th, owing to unfavorable developments of the hand.

A claim for compensation was made under date of July 22, 1941, without any definite description of the injury or the cause thereof. The employer's report, made under date of June 21, 1941, described the cause of the injury as "operating controller handle on crane, bumping same and injured hand", and the nature and extent of the injury as "contusion of palmar surface of left hand." The commissioner investigated the claim through his agents, procuring affidavits from attending physicians, fellow-employees, representatives of the hospital, the employer's superintendent, and others. On October 31st, an order was made finding the claim compensable and awarding compensation for nineteen weeks upon a temporary total basis at $16 per week. Upon a protest by the employer, a hearing was had, based on considerable additional evidence in the form of depositions, resulting on March 7, 1942, in a permanent partial disability award amounting to $16 a week for forty weeks, beginning November 1, 1941. Upon appeal by the employer, this award was set aside as above noted.

The claimant asserts that his injury arose from a blow by the heel of his left hand against a sticking control lever which caused immediate excruciating pain, followed by discoloration, swelling and coldness of the fingers of the hand, ending finally in a gangrenous infection of the index finger, necessitating its amputation. He apparently concedes a possible diseased condition of the veins and arteries, but insists that the blow was the immediate and aggravating cause of the acute development. The record shows that he immediately complained to his fellow-workmen, one of whom states that the hand was then swollen and the fingers blue and cold. Dr. Murphy, who examined him on the third day after the injury found "a moderate amount of swelling" in the palm of the hand, and "the tips of all his fingers excepting the thumb cold", and cyanotic. Dr. Weiler, whose first examination was made June 24th, says: "The forearm, wrist and hand were cold. There was slight erythema of the skin about the wrist and the palm near the wrist. There was slight swelling of the palm of the hand which was tender to palpation. Both the radial and ulnar artery pulses were present but diminished as compared with that of the opposite hand. There was marked coldness of the hand and fingers. The two distal phalanxes of the fingers were markedly cyanotic; also the distal phalanx of the thumb was cyanotic and cold. *** Sensation in the cyanotic and cold digits is markedly diminished; it being absent in the index finger." This physician later reported that the index finger became "gangreneous down to the proximal interphalangeal joint", necessitating its amputation.

Dr. Murphy's conclusions regarding the claimant's condition were: "*** that he did have a bruise on the palmar surface of the left hand, opposite the little finger, and that he had a slow progressive disease of the arteries and veins of that hand, which were in no way connected with the injury to the palm of his hand". This disease, called "Buerger's disease", he describes as "thrombo-angiitis obliterans, involving the first, second, third and fourth fingers *** characterized by coldness, numbness, and cyanosis", which in regular course would develop into gangrene, by reason of the development of clots in the blood vessels tending toward the stopping of blood circulation in the extremities. He does not think the bruises either caused or contributed to the subsequent diseased condition of the finger. Dr. Weiler reported by letter of July 2, 1941, to the commissioner as follows: "My diagnosis of the peripheral vascular condition was acute thrombo-angiitis of the left upper extremity. I believe that the trauma of June 14, 1941, was an aggravating cause of the vascular pathology." In his deposition, he uses this language "the condition that we are dealing with, resulted from a blow on the palm of the hand against the lever on the crane", and says he found no sign of "Buerger's disease" but did find "inflammatory spasticity" of the veins and arteries, resulting from some diseased condition, and concludes that "if it hadn't been for the injury, he wouldn't be as he is now." Dr. Snider, called into consultation by Dr. Weiler, says: "My diagnosis was arteritis, which means inflammation of the walls of the arteries, with a thrombosis, or clotting, inside that artery in the left index finger, of unknown origin." He cannot "say definitely that was the cause", and adds that "it is conceivable that it could." Dr. Caldwell, who at the instance of Dr. Weiler, examined the claimant, September 22nd, says that he found "the index finger had been amputated, but the rest of the fingers and the hand was cold, that there was no pulsation at that time that could be felt, either in the hand, wrist, or forearm". He states that: "I relied more on the history of the case, history of the injury, his hand being in a normal condition up to that time, that, as far as this condition, it was due to trauma."

The controlling facts before the commissioner were thus relatively simple and well-established. The conclusions of the medical men testifying therefrom were not in agreement. No question of law arose; facts alone came into consideration; and the commissioner was required to make his own deductions from these facts. He found for the claimant, and this finding, had it been affirmed by the appeal board, would have been beyond disturbance by this Court. Anderson v. State Compensation Commissioner, 113 W.Va. 742, 169 S.E. 386; Andrews v. State Compensation Commissioner, 113 W.Va. 238, 167 S.E. 588; Aniel v. State Compensation Commissioner, 112 W.Va. 645, 166 S.E. 366; Dowdy v. State Compensation Commissioner, 112 W.Va. 428, 164 S.E. 495. But in the case at bar, the commissioner allowed the claim, while the appeal board, without taking additional evidence, rejected it. Where does the presumption of correctness lie in such a case?

Under the statute the appeal from the commissioner is a matter of right. It is not granted for error. Code, 23-5-3. The appeal board may either hear the case on the evidence which was before the commissioner, or take additional...