Miles v. State Compensation Com'r

Decision Date16 October 1951
Docket NumberNo. 10407,10407
Citation136 W.Va. 183,67 S.E.2d 34
CourtWest Virginia Supreme Court
PartiesMILES, v. STATE COMPENSATION COMMISSIONER et al.

Syllabus by the Court.

A claimant of compensation benefits for occupational disease, or his employer, under the provisions of Chapter 136, 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 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 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 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 followed the usual course, he should develop a swelling of the lungs, high blood pressure, purulent bronchitis, and reticulation on X-ray. He suggested, as did the first consultant, that claimant be examined at intervals, and if the foregoing conditions were demonstrated at any time, the matter of permanent disability could then be considered. He did not feel that claimant had any existing permanent disability, as he could work in his occupation as a welder in some other industry.

In a memorandum dated January 22, 1951, not sent to claimant or employer, the board expressed an opinion that the claimant's condition on that date was in no way connected with exposure to vanadium oxide dust which occurred in July, 1949.

On January 24, 1951, the commissioner entered an order and transmitted the same to claimant and employer by letter dated January 26, 1951. The order, after reciting that the claim was considered on the entire record and upon further medical evidence, affirmed the commissioner's ruling of October 14, 1949, and stated that 'it is the further opinion of the Commissioner that any disability from which the claimant may now be suffering is due to causes other than his exposure to chemical fumes on or about July 13, 1949 * * *.'

The parties were advised in the letter of transmittal that either party could appeal from such order within the statutory time limit.

An appeal was taken by the claimant to the Workmen's Compensation Appeal Board, which affirmed the commissioner as above stated. This appeal followed.

Claimant contends that the board's findings of January 22, 1951, were not reported as required by statute; that claimant was not notified in advance that his claim would be considered on January 22, 1951; and that the commissioner's order of January 24, 1951, was ambiguous in that it affirms his prior determination of the compensability of the claim, but determines that claimant's then existing condition was due to causes other than his exposure to vanadium oxide dust.

The controlling issue upon this appeal is whether claimant has been afforded an opportunity to fully develop his case.

By amendment to the Compensation Act in 1949, occupational diseases other than silicosis were made specifically compensable. Chapter 136, Acts of the Legislature, Regular Session, 1949. Prior to July 1, 1949, the effective date of such amendment,...

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7 cases
  • Hammons v. W. Va. Office of the Ins. Comm'r
    • United States
    • West Virginia Supreme Court
    • May 20, 2015
    ...The notice shall state the time allowed for filing a protest to the finding.W. Va.Code § 23–5–1(b)(1). Accord Syl., Miles v. State Comp. Comm'r, 136 W.Va. 183, 67 S.E.2d 34 (1951) (“A claimant of compensation benefits for occupational disease, or his employer, under the provisions of Chapte......
  • Bias v. Eastern Associated Coal Corp.
    • United States
    • West Virginia Supreme Court
    • June 8, 2006
    ...listed have been covered by W.Va.Code § 23-4-1 since it was amended by the Legislature in 1949. See, also, Miles v. State Compensation Comm'r., 136 W.Va. 183, 67 S.E.2d 34 (1951). Thus, the reasoning from Jones which the plaintiff urges upon us was legislatively Even if such reasoning were ......
  • Lambert v. WORKERS'COMPENSATION DIV.
    • United States
    • West Virginia Supreme Court
    • April 26, 2002
    ...Posey v. State Workmen's Compensation Comm'r, 157 W.Va. 285, 290-92, 201 S.E.2d 102, 105-06 (1973); Miles v. State Compensation Comm'r, 136 W.Va. 183, 190-91, 67 S.E.2d 34, 38-39 (1951); Syllabus, Stone v. Compensation Commissioner, 106 W.Va. 572, 146 S.E. 372 (1929). The issue can be compl......
  • City of Beckley v. Hatcher, CC782
    • United States
    • West Virginia Supreme Court
    • October 16, 1951
    ... ... may be levied by a municipality against land owned by the State of West Virginia, within such municipality, under authority conferred by ... ...
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