Partlow v. Workmen's Compensation Commissioner, 12531

• Decision Date: 15 February 1966
• Docket Number: No. 12531,12531
• Citation: 150 W.Va. 416,146 S.E.2d 833
• Court: West Virginia Supreme Court
• Parties: Charles R. PARTLOW v. WORKMEN'S COMPENSATION COMMISSIONER and Owens-Illinois Glass Company.

Page 833

146 S.E.2d 833

150 W.Va. 416

Charles R. PARTLOW v. WORKMEN'S COMPENSATION COMMISSIONER and Owens-Illinois Glass Company.

No. 12531.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 18, 1966.

Decided Feb. 15, 1966.

Syllabus by the Court

1. The state compensation commissioner has no power or jurisdiction to vacate, set aside or modify a final order made by him, except in instances in which it appears that he lacked jurisdiction to enter such order or that it was made or procured through fraud or mistake.

2. 'In order to reverse a finding of fact by the Workmen's Compensation Appeal Board it must appeal from the proof upon which the board acted that the finding in question was plainly wrong.' Point 1, syallabus, Dombrosky v. State Compensation Director, 149 W.Va. 343 .

Huddleston & Bolen, Edwin W. Conley, A. Michael Perry, Huntington, for appellant.

Norman E. Rood, Huntington, for appellee.

HAYMOND, Judge.

On this appeal the employer, Owens-Illinois Glass Company, a corporation, seeks reversal of the final order of the Workmen's Compensation Appeal Board entered August 25, 1965 which affirmed the final order of the Workmen's Compensation Director, now Commissioner, entered April 5, 1965, which held compensable the claim of its employee, Charles R. Partlow, and granted him, as claimant, compensation on the basis of a total temporary disability which resulted from an injury sustained by the claimant on November 11, 1962, while employed by the Owens-Illinois Glass Company as a machine operator at its plant in Huntington, West Virginia.

About 5:20 o'clock in the morning of November 11, 1962, the claimant fell on a level floor of the plant. The evidence contains no explanation of the cause of this fall which resulted in a head injury consisting of a laceration of the left side of his scalp and, since the injury, the claimant has suffered from a disability diagnosed as a depressive reaction condition which has prevented him from returning to his work. The record does not disclose how the claimant's fall occurred. There is no showing that any blow was struck or that he slipped, or tripped or stumbled but immediately after the fall he was found lying on the floor during an epileptic fit or seizure. Prior to his injury he had suffered from a brain lesion and epilepsy and though there is some indication that he had experienced falls from previous epileptic seizures, there is no showing that any such occurrences interfered with the regularity of his employment for a period of approximately ten years before he fell during the early morning hours of November 11, 1962.

By order entered May 14, 1963, the commissioner affirmed his ruling of April 22, 1963, insofar as such ruling held the condition of the claimant's diagnosis as 'head injury, laceration of left side of scalp' to be compensable but also held that the condition of the claimant's diagnosis as 'depressive reaction' was unrelated to his injury of November 11, 1962, and that such condition was not compensable and denied compensation for all medical and hospital bills and for such depressive reaction.

Within thirty days from the entry of the foregoing order the claimant protested the ruling of the commissioner as set forth in that order 'that the condition diagnosed as 'depressive reaction' is unrelated to the aforesaid injury of November 11, 1962, and is hereby determined not to be compensable and it is therefore, ordered and directed that all medical and hospital bills and compensation related solely thereto be rejected; all of which is accordingly so ordered.' The employer did not protest or appeal from the ruling of the commissioner holding compensable the head injury sustained by the claimant as a result of the fall.

By subsequent final order entered April 5, 1965, the director sustained the protest of the claimant to the ruling of May 14, 1963 that the condition of the claimant diagnosed as 'depressive reaction' was not compensable and held such depressive reaction to be compensable, that all proper medical and hospital bills be honored and paid, and that the claimant be granted compensation upon a total temporary disability basis for lost time, if any, resulting from such condition. By the same order the director affirmed his ruling of May 14, 1963 insofar as it determined the condition of the claimant diagnosed as 'head injury, laceration of left side of scalp' to be compensable. From the final order of April 5, 1965, the employer appealed to the Workmen's Compensation Appeal Board which, as previously indicated, affirmed that order by its final order of August 25, 1965.

The principal ground on which the employer relies for reversal upon this appeal is that the claimant has failed to show by evidence that his fall on November 11, 1962, though occurring in the course of his employment, resulted from his employment and that for that reason the employer can not be held responsible for the disability arising from the depressive reaction condition of the claimant even if such condition was aggravated by the fall.

In support of the statutory requirement that the injury, to be compensable under Section 1, Article 4, chapter 23, Code, 1931, as amended, must have been received by the claimant in the course of and resulting from his employment, the employer cites numerous cases of this Court which hold that the injury must not only occur in the course of the employment but must result from such employment. Among the cited decisions of this Court in support of that contention are Deverick v. State Compensation Director, W.Va., 144 S.E.2d 498; Damron v. State Compensation Commissioner, 109 W.Va. 343, 155 S.E. 119; Martin v. State Compensation Commissioner, 107 W.Va. 583, 149 S.E. 824; and Archibald v. Workmen's Compensation Commissioner, 77 W.Va. 448, 87 S.E. 791, L.R.A. 1916D, 1013. Those cases and numerous other decisions of this Court clearly impose that requirement; but in this proceeding and upon this appeal the employer can not successively rely upon and benefit from those decisions for the reason that by the final order of the commissioner entered May 14, 1963, which was not protested or appealed by the employer, and has become final and unappealable, the...