Myers v. State Comp. Com'r, 6899.

• Decision Date: 28 April 1931
• Docket Number: No. 6899.,6899.
• Court: West Virginia Supreme Court
• Parties: MYERS. v. STATE COMPENSATION COM'R.

158 S.E. 512

MYERS.

v.STATE COMPENSATION COM'R.

No. 6899.

Supreme Court of Appeals of West Virginia.

April 28, 1931.

Appeal from State Compensation Commissioner.

Proceeding under the Compensation Act by J. H. Myers, claimant, for compensation for an injury sustained while in the employment of the Campbell's Creek Coal Company. From a ruling of the State Compensation Commissioner denying claimant further compensation after the allowance and payment of a final award, claimant appeals.

Appeal dismissed.

R. E. Hughes, M. H. Bowyer, and J. B. Menager, all of Charleston, for petitioner.

Howard B. Lee, Atty. Gen., and R. Dennis Steed, Asst. Atty. Gen., for respondent.

LITZ, P.

This is an appeal from the ruling of the state compensation commissioner, denying the claimant, J. H. Myers, further compensation after the allowance and payment of a final award.

Myers, at the age of 73 years, sustained an injury August 8, 1925, while employed as a blacksmith for the Campbell's Creek Coal Company in Kanawha county, by lifting a heavy box of mining machine bits, causing inguinal hernia. He was treated at the McMillan Hospital at Charleston from August 12th to August 14th. His formal application for compensation was filed August 20th. September 8th, Dr. U. G. McClure of the McMillan Hospital made an affidavit, at the instance of the compensation commissioner, stating that Myers had a small reducible right inguinal hernia; and that because of his poor physical condition and advanced age, an operation was not attempted. On September 9th, Dr. W. L. Barbour, in the service of the coal company, also made an affidavit at the instance of the commissioner stating that, in his opinion, the claimant had, before the injury, a relaxed inguinal ring which had caused hernia to develop from a sudden strain; that a suitable truss should give him proper support; and that he found "no physical impairment that would make an operation unadvisable, except his age." January 18, 1927, the commissioner, in response to a letter from the claimant demanding compensation, replied that no compensation could be allowed in a case of hernia without an operation. March 11, 1927, Dr. Russel Kessel, medical examiner for the compensation department, after examining the claimant reported to the commissioner: "This man is 75 years of age, in fair physical condition, but on account of his advanced years in life I would not recommend an operation." June 22, 1927, the claimant was awarded $80. Dr. Russel Kessel, after re-examining the claimant, July 14, 1927, reported to the commissioner that the hernia had increased somewhat since his former examination, and that on account of the age of the claimant, he would not advise an operation. On July 15, 1927, the commissioner wrote the claimant: "I find that in looking over the file in your case that since you have returned to work you have worked with a fair degree of regularity, and do not seem to have any disability by reason of your injury. I take this occasion to advise that as the case stands at present further compensation does not seem to Be due or payable." On September 17, 1927, Dr. Kessel advised the commissioner that he had found on another examination that the claimant was afflicted with a right hernia, "enormous in size, " extending into the scrotum; that, in his opinion, he would not be able to undergo an operation, and suggested that he be granted 25 per cent. permanent partial disability. Dr. Raymond H. Lewellyn, employed by the coal company, in a letter to the compensation commissioner of August 19, 1927, says: "Mr. Myers of Putney has been under my care for the past thirteen or fourteen months. During this time his hernia has given him much discomfort and pain, and for many days at a time he has been unable to work. At all times when working he suffered intensely and states he is unable to heed my advice and stay at home as it is necessary for him to attempt to work. In my opinion his hernia and physical condition are of such a nature that he is unable to withstand an operation for the repair of it even under local anesthesia."

November 10, 1927, Dr. Kessel again advised that the claimant, in his opinion, could not undergo an operation. In a letter dated November 28, 1927, addressed to the compensation commissioner, Dr. Lewellyn says: "At your request, I am writing to you again in regard to the claim of Mr. J. II. Myers, No. 4330-32. I re-examined Mr. Myers on November 25, 1927, and at that time I found his hernia to have increased in size and to be more painful. His general condition has not improved and I am more firmly convinced at this time that he is unable to withstand an operation for the repair of his hernia even under local anesthesia."

In a letter to the commissioner of February 21, 1928, concerning Myers, Dr. Lewellyn further states: "His condition at present time is virtually the same that it has been...