McShan v. Heaberlin

• Decision Date: 17 April 1928
• Docket Number: (No. 6216)
• Citation: 105 W.Va. 447
• Court: West Virginia Supreme Court
• Parties: Houston McShan v. C. L. Heaberlin, State Compensation Commissioner

105 W.Va. 447

Houston McShan

v. C. L. Heaberlin, State CompensationCommissioner

(No. 6216)

Supreme Court of Appeals of West Virginia.

Submitted April 10, 1928.

Decided April 17, 1928.

1. Master and Servant Misapplication of Law to Facts by Commission Created to Review Awards of Compensation Commissioner Will be Corrected on Review by Supreme Court of Appeals (Acts 1925, c. 68, § 57).

A misapplication of the law to the facts by the Commission, created under section 57, chapter 68, Acts 1925, to review the awards of the Compensation Commissioner, will be corrected on review by this Court, (p. 451.)

(Workmen's Compensation Act,.... C. J. § 128.)

2. Same Applicant for Compensation is Not Estopped to Appeal After Payment An Insufficient Award by Compensation Commission (Acts 1925, c. 68, § 57).

In such case the applicant is not estopped to appeal after payment of an insufficient award by the Commission, (p. 452.)

(Appeal and Error, 3 C. J. § 552; Workmen's Compensation Act,..... C. J. § 123.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not

part of syllabi.)

Appeal from Workmen's Compensation Commission Appeal Board.

Proceeding under the "Workmen's Compensation Act by Houston McShan, complainant, opposed by the Empire Coal & Coke Company, employer. Prom a decision of Lee Oft, state compensation commissioner, succeeded by C. L. Heaberlin, discontinuing compensation, the claimant appealed to the Compensation Appeal Board, and from its decision, reversing the decision of the commissioner, and awarding claimant twothirds of the original allowance, the claimant appeals.

Remanded with directions.

B. T. Clayton, for appellant.

Howard B. Lee, Attorney General, and R. Dennis Steed, Assistant Attorney General, for appellees. hvrz, Judge:

This is an appeal by an injured employee from the award of the Commission, composed of the Governor, Commissioner of Health and the Commissioner of Labor, commonly called the Compensation Appeal Board, created by section 57, chapter 68, Acts 1925, to review the awards of the Compensation Commissioner. (

On February 11, 1924, Houston McShan, while engaged as a miner for the Empire Coal & Coke Company, in McDowell county, was injured by a dynamite explosion. According to the report of the company physician, Dr. W. B. Stephens, the "eyes and face (of the claimant) had severe lacerations and contusions", and his "eyes (were) badly disfigured." The Compensation Commissioner having awarded the claimant thirty per cent disability, upon the protest of the employer, discontinued the benefits thereunder after payment of $167.09 of the award. The claimant appealed to the Appeal Board; and after first refusing to reverse the Commissioner, it made an award of twenty per cent disability in favor of the claimant, which has been paid by the Commissioner. In its written findings directed to the Commissioner, the Boa»d states: "The Compensation Appeal Board has had under consideration a case styled Houston McShan vs. Empire Coal & Coke Company. This is an appeal from the decision of former Compensation Commissioner Lee Ott, in setting aside an award he had previously made to McShan for injuries sustained while in the employ of the said coal company.

After the injury to McShan, due to the explosion, the Empire Coal & Coke Company reported the facts to the Compensation Department and the Commissioner awarded a thirty percent disability upon the company's report, McShan was paid $167.09 in monthly installments, being a portion of the award made by Commissioner Ott, after which payments were discontinued at the direction of the Commissioner.

This case was considered by the Appeal Board at another hearing and it was determined to have McShan undergo an examination by a specialist. Dr. W. S. Shepherd an occulist of Charleston was selected to make the examination.

The examination was given and report made to the Board. In this report Dr. Shepherd states emphatically that said McShan's impaired vision was caused by the injuries received in the explosion. Further evidence submitted to the Board shows that McShan was a regular employee of the Empire Coal & Coke Company, working every day that the mine was in operation. There was no evidence submitted to show that lie did not efficiently perform the work at which he was assigned while in the employ of the company.

Following the accident, and after discharge from the hospital, McShan returned to the employ of the company, but owing to his affected vision was unable to return to his accustomed work in the mine. He was given light work at waiting table and doing odd jobs about the mine for a time. His sight finally became so defective that he was forced to cease work entirely.

In view of these facts presented to the Compensation Appeal Board, the Board is of the opinion that the Compensation Commissioner erred in setting aside the entire award of thirty percent disability, and with these facts as presented in support of the contention of said Houston McShan, the Board does hereby reverse the decision of the Commissioner and award McShan two-thirds the original allowance, thus restoring him to a twenty percentum disability rating.''

Relying upon the finding of the Board that his loss of vision was due to the injury, the claimant contends that it should have fixed a higher percentage of disability. Chapter 15, section 31, paragraph E, Code, provides: "The total loss of one eye, or the total and irrevocable loss of the sight thereof shall be considered a thirty-three percentum disability for a period of one hundred and thirty-two wrecks. For the partial loss of vision in one, or both eyes, the percentage of disability shall be determined by the Commissioner, using as a basis the total loss of one eye." The employer not only resists an increase in the award, but cross assigns error to the action of the Appeal Board in awarding the claimant any compensation for loss of eyesight.

The bases of the cross errors, comprehensively stated, are: (1) The claimant's loss of vision did not result from the in jury sustained in the dynamite explosion; (2) He did not file a claim for permanent injury to the eyes within six months after the accident; (3) The Appeal Board did not have jurisdiction of the claim, first, because the injury occurred prior to the act of the legislature creating the Board, and second, for...