Miles v. State Compensation Com'r, No. 10407

• Court: Supreme Court of West Virginia
• Writing for the Court: LOVINS
• Citation: 136 W.Va. 183,67 S.E.2d 34
• Parties: MILES, v. STATE COMPENSATION COMMISSIONER et al.
• Decision Date: 16 October 1951
• Docket Number: No. 10407

Page 34

67 S.E.2d 34 136 W.Va. 183 MILES,
v.
STATE COMPENSATION COMMISSIONER et al. No. 10407. Supreme Court of Appeals of West Virginia. Submitted Sept. 5, 1951.
Decided Oct. 16, 1951.

Page 35

Syllabus by the Court.

A claimant of compensation benefits for occupational disease, or his employer, under the provisions of Chapter 136, [136 W.Va. 184] Acts of the Legislature, 1949, is entitled to make a timely protest to an adverse finding by the State Compensation Commissioner and an opportunity to introduce evidence and otherwise be heard, before such commissioner makes a final order.

Bryan & Hazlett, and William H. Hazlett, all of St. Albans, for appellant.

Dayton, Campbell & Love, Charles M. Love, and Ernest H. Gilbert, Jr., all of Charleston, for appellee.

LOVINS, Judge.

This is an appeal from an order of the Workmen's Compensation Appeal Board entered April 7, 1951, affirming an order of the State Compensation Commissioner, entered January 24, 1951. Appellant will be hereinafter referred to as 'claimant', and the appellee, Union Carbide and Carbon Corporation, as 'employer'.

The claimant, a welder in the plant of the employer, filed an application for workmen's compensation in August, 1949, contending that his physical condition, diagnosed by his physician as 'acute bronchitis due to inhalation of vanadium oxide dust', reslted from an exposure to such dust in the course of his employment on July 13, 1949.

Employer and claimant waived a nonmedical hearing and the claim was referred to the Occupational Disease Medical Board, hereinafter referred to as the 'board'. On September 29, 1949, the board reported that claimant was suffering from acute bronchitis occasioned by the inhalation of vanadium oxide in the course of his employment and that such dust was a 'known lung irritant which [136 W.Va. 185] may produce pulmonary edema without permanent damage except upon repeated exposure.' According to the board's report the statutory prerequisites to compensability were present. No objections were filed to such finding, and the commissioner thereafter, by an order entered October 14, 1949, determined the claim compensable and directed the payment of medical bills, but since there had been no time lost from employment, the commissioner ordered that no compensation on a temporary total disability basis be paid. There was no appeal from that order.

Claimant, while undergoing treatment, continued working for the employer, though the record does not disclose in what capacity or under what working conditions. The employer's plant physician wrote the commissioner on June 8, 1950, that he had treated claimant until May, 1950, and, the claimant's complaints having become worse, he had sent him to another physician for consultation, who reported the results of his examination and reached the following conclusion:

'These findings are those of a rather marked tracheobronchitis associated with expiratory compression of the bronchi

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and their subdivisions, which changes probably account for the wheezing in the left chest. No changes were seen to specifically suggest the presence of a tumor in any form. The marked irritability of the tracheobronchial tree observed before and during examination is of the type commonly seen on patients who smoke excessively or are subjected to irritation of noxious chemical fumes.'

Upon receipt of information from the employer that claimant had been absent from work since June 28, 1950, recuperating in Arizona, the commissioner placed the claimant on a temporary total disability basis, paying him benefits on that basis from June 28, 1950, to October 15, 1950, inclusive, less five days which he had worked in the month of September, 1950.

On October 23, 1950, claimant was directed by the chairman[136 W.Va. 186] of the board to report to another physician for examination to determine the degree of his permanent disability, if any, resulting from his exposure of July 13, 1949. The last named physician reported, as a result of his examination, that it was impossible to estimate at that time the degree of permanent disability, and that the extent thereof would depend upon future developments. He expressed the opinion that claimant might develop fibrosis throughout the left lung field with increased difficulty in breathing and right heart enlargement, and he recommended that claimant be examined at intervals. Though somewhat inconsistent with his previous statement, he suggested a fifteen to twenty-five percent permanent partial disability award, based on existing symptoms, i. e., morning cough with the spitting of mucus and shortness of breath.

The chairman of the board, by letter dated November 9, 1950, transmitted a copy of the last report to the employer and the plant physician and advised them that the board members desired a discussion of the case with the representatives of the employer at its next meeting to be held on November 16, 1950. There is nothing to indicate that claimant was notified that his case was to be considered at the meeting on November 16.

The plant physician informed the board that it was impossible for him to attend the November 16 meeting, but that he concurred with the first consultant that claimant's permanent disability could not be determined at that time. He was of the opinion that if claimant's symptoms continued and...