McGeary v. State Compensation Director

• Decision Date: 25 May 1964
• Docket Number: No. 12293,12293
• Citation: 135 S.E.2d 345,148 W.Va. 436
• Court: West Virginia Supreme Court
• Parties: John McGEARY v. STATE COMPENSATION DIRECTOR, and Elkay Mining Company.

Page 345

135 S.E.2d 345

148 W.Va. 436

John McGEARY v. STATE COMPENSATION DIRECTOR, and Elkay Mining Company.

No. 12293.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 14, 1964.

Decided March 31, 1964.

Rehearing Denied May 25, 1964.

Syllabus by the Court

An order of the Workmen's Compensation Appeal Board, affirming an order of the Director of Workmen's Compensation, which is clearly wrong, will be reversed by this Court with directions to enter a proper order consistent with the evidence.

Patrick J. Flanagan, Welch, for appellant.

Valentine & Beddow, John C. Valentine, Logan, for appellees.

BROWNING, Judge.

Claimant, John McGeary, sustained a severe back injury on March 1, 1960, as a result of a slate fall in the mine of his employer, Elkay Mining Company. He was hospitalized at Man, West Virginia, until March 18, 1960, when he was transferred to The Miners Memorial Hospital at Williamson, West Virginia, and placed in the care of Dr. A. A. Grebe. On November 14, 1960, Dr. Grebe notified the State Compensation Commissioner that claimant should be evaluated as to the advisability of a spinal fusion or, in lieu thereof, for a determination of his permanent disability. The commissioner referred claimant to Dr. H. A. Swart, who examined him on December 21, 1960, and reported claimant's complaint of back pain on bending, lifting, riding in cars, walking, standing, weather changes, coughing and sneezing, and, after noting his clinical and X-ray findings, stated: 'By X-ray this man was shown to have a severe compression fracture of the 12th dorsal vertebra. The degree of compression is extreme, and there is some backward tilting of the vertebra. It is possible that a spine fusion might strengthen this man's back and reduce his pain. I do not think he will ever be able to work in the mine again, no matter what is done. If the spine fusion is not performed, I would recommend an award of 50% permanent partial disability.' The claimant was again referred to Dr. Grebe, to perform the spinal fusion if he believed it to be indicated, and on March 6, 1961, Dr. Grebe reported to the commissioner that the claimant did not desire a spinal fusion and therefore, he agreed with Dr. Swart that the permanent disability was 50%.

The commissioner, on March 27, 1961, entered an order granting to claimant a 50% permanent partial disability which order was protested by the claimant. At the hearings pursuant to the protest, the reports of four physicians were introduced. Dr. Kuhn, in his report, stated: 'It is the impression of this examiner that this man is unable to do any work in a coal mine. I would recommend a 65% partial permanent disability. If the award is made on the basis of whether he can return to his former employment, I do not believe he could do so. I believe he could do only light work.' When cross-examined on his report, Dr. Kuhn testified that claimant: cannot do heavy manual labor; cannot do work requiring lifting, stooping or bending; cannot do work requiring standing or walking for prolonged periods; and, can only do work of a sedentary nature. Dr. Swart, upon cross-examination of his original report to the commissioner, testified that claimant cannot do manual labor of the type required in the mines but could do 'some very light work, preferably where he could sit down.' Dr. Anderson, in a report of an examination made of claimant on August 31, 1961, concluded: 'This man has a very severe fracture of the 1st lumbar vertebra. He has rather marked limitation of motion of the spine. This man is close to being totally and permanently disabled. Partial permanent disability of 60% is recommended in this case.' In testifying, Dr. Anderson stated that: it is very doubtful if claimant could return to employment in the mines; it is questionable 'whether he could do anything that he was able to do before:' he cannot do heavy lifting or heavy manual labor; and, he might be able to work as a janitor or filling station attendant, if no heavy lifting was required.

Dr. Hechman, who examined claimant on May 22, 1962, reported: 'I believe that there is no doubt that this man has definite weakness of his spine. I suspect he must have a great deal of pain if he attempts to do any bending or lifting. The possibility of a fusion in this area would give some strength to the area, however, I doubt that even a fusion would allow this man to return to a gainful occupation where he would have to do bending or heavy lifting. It is my feeling that this man is entitled to a 40 per cent permanent partial disability as a result of this injury.' Dr. Carter examined claimant on April 27, 1962, and stated: 'It is my opinion that this patient should have a fusion of this area and then evaluation following fusion; however, this would not necessarily allow this patient to return to work in the coal mines. It should stop his pain and maybe he could be rehabilitated to a lighter type of work. Pending any follow through on this recommended treatment by all parties concerned, at the present time it is my opinion that this patient has a permanent total disability.' The clinical findings of all five physicians are substantially the same, their reports only varying in the percentage of permanent disability recommended for such findings, and, the three who testified all agreed that the impairment is functional, without regard to any type of employment.

Claimant also testified, stating that: he is forty-eight years of age and has a third grade education; he cannot write and can read only a little; his only employment has been as a miner, farmer and sawmill worker; and, he has not worked since his injury.

On April 1, 1963, the commissioner set aside his previous order and granted claimant a 60% permanent partial disability, which order, on appeal by the claimant, was affirmed by the Workmen's Compensation Appeal Board on September 6, 1963, and to which action of the board this Court granted an appeal to claimant on November 22, 1963.

The Legislature of this state recently, by Chapter 195, Acts of the Legislature, Regular Session, 1963, changed the title of the State Compensation Commissioner to Director of Workmen's Compensation, and in this opinion that official will be referred to by the new designation. All of the powers, duties and responsibilities of the Director, Workmen's Compensation Appeal Board and other boards or officials which administer the Workmen's Compensation Fund are statutory and derived from Chapter 23 of the official code of 1931, as amended.

This Court held in the early case of Higgins v. Williams Pocahontas Coal Co., 103 W.Va. 504, 138 S.E. 112, that in the investigation and decision of contested claims before him the director acts in a quasi-judicial capacity. After the creation by the Legislature of a Workmen's Compensation Appeal Board in 1935, hereinafter referred to as the appeal board, to hear appeals on behalf of the employer or a claimant, this...