Moore v. State Comp. Comm'r

• Decision Date: 04 May 1937
• Docket Number: No. 8573.,8573.
• Citation: 191 S.E. 292
• Parties: MOORE. v. STATE COMPENSATION COMMISSIONER.
• Court: West Virginia Supreme Court

191 S.E. 292

MOORE.
v.
STATE COMPENSATION COMMISSIONER.

No. 8573.

Supreme Court of Appeals of West Virginia.

May 4, 1937.

[191 S.E. 292]Syllabus by the Court.

1. "Upon appeal from the Compensation Commissioner to the Workmen's Compensation Appeal Board under chapter 78 of the Acts of the Regular Session of 1935, the board is in nowise bound by the findings of fact by the commissioner, but itself becomes a fact-finding tribunal, with authority to enter such order or make such award as the commissioner should, in its opinion, have entered or made upon the proof before him." Rasmus v. Workmen's Compensation Appeal Board (W.Va.) 184 S.E. 250, pt. 1, Syl.

2. An injury caused by a rubber boot, the wearing of which was made necessary by the nature of the claimant's work, is a compensable injury under the Workmen's Compensation Act.

Appeal from Workmen's Compensation Appeal Board.

Proceeding under the Workmen's Compensation Act by John Moore, claimant, opposed by the American Car and Foundry Company, employer. From an order of the Workmen's Compensation Appeal Board granting compensation, after the State Compensation Commissioner had refused compensation, the employer appeals.

Affirmed.

Fitzpatrick, Brown & Davis and C. W. Strickling, all of Huntington, for appellant.

H. D. Rollins, of Charleston, and Perry & Perry, of Huntington, for respondent John Moore.

KENNA, President.

On September 6, 1935, John Moore, while working in a ditch for the American Car & Foundry Company and wearing a rubber boot, rubbed a blister on his left leg a little above the ankle. The next morning he reported at the company's first aid station where he continued to report every few days for about a month. During the second month after the injury, he called several times at a doctor's office for treatment and finally was confined to his bed, thereafter being hospitalized. Claimant continued to receive treatment until the 9th of January. The Commissioner declined to award compensation and, upon appeal to the Workmen's Compensation Appeal Board, compensation was allowed. This appeal was granted on the question of whether the claimant's injury resulted from his employment. There can be no doubt, of course, but that it occurred in the course of his employment.

The claimant seems to have been regularly engaged at various sorts of common labor at the plant of the employer. At the time of getting the blister on his left leg he was working in a very muddy ditch, and was wearing rubber boots, which he had been ordered by his foreman to wear on account of the nature of the work that he was to be engaged in. The boots were of ordinary knee length, and it does not appear from the record whether claimant had ever worn them before or whether they were bought new for this particular work. There seems to be no question but that the rubbing of these boots in the course of claimant's work in digging the ditch caused the blister for which the claimant first reported for treatment. A few days after claimant reported for treatment an ulcerated condition developed on his leg slightly above the point where the blister had been rubbed and this steadily grew worse until in the course of several weeks it was necessary for the claimant to go to the hospital and submit to lancing of his leg. The claimant was under treatment for approximately four months before the difficulty finally cleared up.

From the order of the Compensation Appeal Board, the employer prosecutes this appeal, taking the position that the claim-

[191 S.E. 293]

ant's disability did not result from the employment but that it was brought about entirely from a varicose condition of the left leg, and that there was no relation between the injury and the work that claimant was doing. Counsel for the employer argue that the ulcerated condition did not have its origin in the blister, and hence did not result from the claimant's employment. A more serious question, granting that there may be causal connection between the blister and the ulcerated condition of claimant's leg, is whether the boot, which the foreman instructed the claimant to wear, but which was furnished by the claimant himself, was ordinary apparel such as would bear no relationship to the claimant's work or was apparel in the nature of special equipment such as would show a direct connection with the claimant's work. Both of these questions will be dealt with after a preliminary question involving procedure, raised by employer's counsel, is disposed of.

Counsel for the employer urges that the Workmen's Compensation Appeal Board should not be considered a fact-finding tribunal, at least in so far as cases...