McClanahan v. Workmen's Compensation Com'r
Decision Date | 29 October 1974 |
Docket Number | No. 13482,13482 |
Citation | 158 W.Va. 161,207 S.E.2d 184 |
Court | West Virginia Supreme Court |
Parties | Leonard McCLANAHAN v. WORKMEN'S COMPENSATION COMMISSIONER and United States Steel Corporation. |
Syllabus by the Court
1. Where an employee stops work due to an accident and dates his claim for silicosis benefits from the last day on which he worked, both the accidental injury and the silicosis claim are second injuries within the contemplation of W.Va. Code, 23--3--1 (1947) and both are chargeable to the employer's account.
2. Where there are prior physical impairments which when combined with a current injury or injuries entitle the claimant to a life award, the Commissioner should charge the employer for the full amount of the current disability or disabilities.
Norman T. Farley, Legal Div., Workmen's Comp. Com., Charleston, for Workmen's Compensation Commissioner.
George W. S. Grove, Jr., Charleston, for United States Steel.
This Court granted an appeal in this case to determine whether an employer's account should be charged for a silicosis award when an employee stops work due to an accidental injury and dates a claim for silicosis benefits from the last day on which he worked. As this Court finds both the accidental injury and the silicosis claim to be second injuries within the contemplation of W.Va. Code, 23--3--1 (1947), a contrary holding of the Workmen's Compensation Appeal Board is reversed. 1
It is uncontested that the claimant, Leonard I. McClanahan, has suffered a number of cumulative injuries which render him totally disabled. In 1958 claimant was awarded a 33% Permanent partial disability for loss of the sight in one eye. On April 5, 1968 claimant severely injured his back while loading rails onto a mine car which resulted in an awarded by the Commissioner of a 40% Permanent partial disability.
While the back injury claim was pending claimant filed an additional claim for silicosis. Claimant demonstrated that he had been employed in the mines of United States Steel Corporation since 1943, and that the last day of his exposure to the dust hazard was coincident with the date of his back injury. The Medical Board found a 20% Silicosis disability which the Commissioner awarded, chargeable to the account of the employer, U.S. Steel. The employer challenged the chargeability of that award before the Appeal Board, which reversed the Commissioner and held that the charge should come from the second injury reserve as the silicosis was a 'definitely ascertainable physical impairment' within the meaning of W.Va. Code, 23--3--1 (1947). The Commissioner appealed that ruling to this Court.
The employer relies upon the testimony of Dr. James H. Walker, chairman of the Occupational Pneumoconiosis Board that the claimant's silicosis condition pre-existed the back injury of April 5, 1968 to support its contention that the silicosis award should be paid from the reserve fund. The Commissioner on the other hand asserts that the Legislature has created a legal fiction with regard to silicosis by providing that 'in cases involving silicosis or other occupational diseases, the 'date of injury shall be the date of the last exposure to the hazard involved, as the case may be,' W.Va. Code, 23--3--1 (1947) 2 and, consequently, that the fiction requires the Commissioner to charge the employer with the silicosis claim.
This Court notices that silicosis is an occupational disease which develops from protracted...
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