Pennington v. State Workmen's Compensation Com'r, No. 12934

CourtSupreme Court of West Virginia
Writing for the CourtHAYMOND
PartiesOtis V. PENNINGTON v. STATE WORKMEN'S COMPENSATION COMMISSIONER and island Creek Coal Company.
Docket NumberNo. 12934
Decision Date07 July 1970

Page 440

175 S.E.2d 440
154 W.Va. 378
Otis V. PENNINGTON
v.
STATE WORKMEN'S COMPENSATION COMMISSIONER and island Creek
Coal Company.
No. 12934.
Supreme Court of Appeals of West Virginia.
Submitted May 19, 1970.
Decided July 7, 1970.

Page 441

Syllabus by the Court

[154 W.Va. 379] 'In order to reverse a finding of fact by the Workmen's Compensation Appeal Board it must appear from the proof upon which the board acted that the finding in question was plainly wrong.' Point 1, syllabus, Vento v. State Compensation Commissioner, 130 W.Va. 577 (44 S.E.2d 626).

Edward I. Eiland, Logan, for appellant.

R. L. Theibert, Charleston, for appellees.

HAYMOND, Judge:

This is an appeal by the employer, Island Creek Coal Company, from a final order of the Workmen's Compensation Appeal Board entered January 23, 1970, by which the board, one member dissenting, affirmed an order of the Workmen's Compensation Commissioner entered August 14, 1969. By that order the commissioner held that the condition of the claimant, Otis V. Pennington, diagnosed as 'herniated disc', was related to the compensable injury sustained by him on February 4, 1965 and was compensable.

The question for determination is whether the evidence is sufficient to support a finding that the 'herniated disc' suffered by the claimant resulted from a compensable injury.

On February 4, 1965, the claimant was employed by Island Creek Coal Company as a tipple repair man and was at work on a large 440 volt electric fuse box. He stood on a tool box about eighteen inches in height located about two feet from a hand rail. While he was at work in that position the fuse box exploded and knocked him from the tool box into and against the hand rail. He fell backwards against the hand rail and then fell forward on the floor of the tipple. The explosion caused a fire which extended to the claimant's clothing and inflicted severe and extensive first, second and third degree burns on many parts of his body. He testified that he did not remember whether the explosion knocked him straight down on the floor or into the hand rail; that he started to [154 W.Va. 380] crawl with his arms to get away from the fire; that his legs were cramped and he could not move them; that he hollered for someone to put out the fire; and that his clothes were on fire.

Fred D. Watkins, a tipple operator who was standing near the claimant at the time, testified that suddenly a fire occurred and he saw the claimant lying flat on the floor on his face, 'longways.'; that there was a guard rail to keep one from falling on the inside and that the claimant 'had only to fall over like this and then bump this guard rail, and then fall forward.' He also testified that the claimant began to holler and said 'I am burning up'; that the claimant was crawling with his elbows; that his legs were crossed; and that he was not moving his legs.

The claimant was unable to walk and was transported to the Stevens Clinic Hospital, at Welch, and given emergency treatment for his burns and was then transferred to the Bluefield Sanitarium where he was treated by Dr. Robert W. Neilson, Jr. The claimant was unable to work for about four months following his injury.

Page 442

Before sending the claimant to work Dr. Neilson placed him on calisthenic exercises and believed that the claimant was able to withstand his work when he returned to work on June 7, 1965 and the claimant worked regularly from June 7, 1965 until two weeks after vacation on July 22, 1966. The claimant testified that after the accident in February 1965, he began to have pain and cramps in his legs; that he had no pain in his back after the accident but that the pain was in his hip and down through his left leg and at times would extend down his leg to his foot; that this condition progressed and became very severe during the last three months of the time he worked after the injury. He also testified that when he returned to work following the injury of February 4, 1965, he was not completely well; that he was not able to work as he had worked before the injury; that he was getting worse all the time; that he was unable to bend over or to lift anything or to bend down or stay in a strained position; and that before his injury he had no trouble of that kind. He stated that in 1951 he had some trouble with his back for about two weeks; that his [154 W.Va. 381] trouble was a muscle strain; that his back was taped and he then went back to work; and that since 1951 he has lost no work and has had no trouble with his back that interfered with his work until he was burned in February 1965. At one time the claimant thought the cramps and pains were caused by circulation in his leg but he was told by his doctor that he did not have a circulatory problem. He was referred to Dr. R. R. Raub, an orthopedic specialist at Bluefield Sanitarium, and to Dr. E. L. Gage, a neurosurgeon. He was examined by Dr. Gage and found to be suffering from a 'herniated inter-vertebral disc' and was required to submit to surgery for the removal of the disc on July 28, 1966, more than seventeen months after his injury in February 1965. In the surgical operation a sequestrated disc at L 5 vertebra on the left and a degenerative disc at L 4 vertebra on the left were removed.

After the claimant was found to be suffering from a 'herniated disc' Dr. Neilson sent a letter to the Medical Division of the Workmen's Compensation Department, dated September 28, 1966, which was introduced in evidence and in which he stated that there was nothing in his records concerning the possibility of a back injury to the claimant at the time of his thermal injury in February 1965 but that the claimant had such extensive burns over his body that the burns may have obscured a back injury. In the letter Dr. Neilson also said that 'It would be quite difficult for me to state that Mr. Pennington did not sustain a back injury at the time of his thermal injury. It is quite possible that he did injure his back at that time and that I failed to investigate the injury due to his severe burns.' In his testimony Dr. Neilson also said that 'Upon the admission to the hospital he was acutely ill from his burns, which covered approximately 40% Of his body surface. He of course complained of severe pain at that time, and these burns occupied my main attention--giving him blood, and infusions and sedation; and during his whole hospital stay that is the only injury that I detected,--his burns. And that is the only...

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16 practice notes
  • Jordan v. State Workmen's Compensation Commissioner, No. 13172
    • United States
    • Supreme Court of West Virginia
    • October 9, 1972
    ...employment have been found [156 W.Va. 164] compensable on many occasions. Pennington v. State Workmen's Compensation Commissioner, W.Va., 175 S.E.2d 440 (1970); Richardson v. State Workmen's Compensation Commissioner, 153 W.Va. 454, 170 S.E.2d 221 (1969); Hosey v. Workmen's Compensation Com......
  • Johnson v. State Workmen's Compensation Com'r, No. 13153
    • United States
    • Supreme Court of West Virginia
    • February 15, 1972
    ...which the appeal board acted that the finding was plainly wrong. Pennington v. State Workmen's Compensation Commissioner, W.Va., syl., 175 S.E.2d 440; Ramsey v. State Workmen's Compensation Commissioner, 153 W.Va. 849, syl., 173 S.E.2d 88; Burr v. State Compensation Commissioner, 148 W.Va. ......
  • Hudson v. State Workmen's Compensation Com'r, No. 14243
    • United States
    • Supreme Court of West Virginia
    • January 23, 1979
    ...State Compensation Commissioner, 130 W.Va. 577, 44 S.E.2d 626 (1947); Syllabus, Pennington v. State Workmen's Compensation Commissioner, 154 W.Va. 378, 175 S.E.2d 440 The findings of the Appeal Board not being plainly wrong, we affirm its decision. Affirmed. Page 866 [162 W.Va. 517] McGRAW,......
  • Morton v. W. Va. Office of Ins. Comm'r, No. 11–1382.
    • United States
    • Supreme Court of West Virginia
    • October 4, 2013
    ...([ ]1977); Myers v. State Workmen's Comp. Comm'r, [160 W.Va. 766] 239 S.E.2d 124 ([ ]1977); Pennington v. State Workmen's Comp. Comm'r, [154 W.Va. 378] 175 S.E.2d 440 ([ ]1970); McGeary v. State Comp. Dir., [148 W.Va. 436] 135 S.E.2d 345 ([ ]1964); Demastes v. State Comp. Comm'r, [112 W.Va.......
  • Request a trial to view additional results
16 cases
  • Jordan v. State Workmen's Compensation Commissioner, No. 13172
    • United States
    • Supreme Court of West Virginia
    • October 9, 1972
    ...employment have been found [156 W.Va. 164] compensable on many occasions. Pennington v. State Workmen's Compensation Commissioner, W.Va., 175 S.E.2d 440 (1970); Richardson v. State Workmen's Compensation Commissioner, 153 W.Va. 454, 170 S.E.2d 221 (1969); Hosey v. Workmen's Compensation Com......
  • Johnson v. State Workmen's Compensation Com'r, No. 13153
    • United States
    • Supreme Court of West Virginia
    • February 15, 1972
    ...which the appeal board acted that the finding was plainly wrong. Pennington v. State Workmen's Compensation Commissioner, W.Va., syl., 175 S.E.2d 440; Ramsey v. State Workmen's Compensation Commissioner, 153 W.Va. 849, syl., 173 S.E.2d 88; Burr v. State Compensation Commissioner, 148 W.Va. ......
  • Hudson v. State Workmen's Compensation Com'r, No. 14243
    • United States
    • Supreme Court of West Virginia
    • January 23, 1979
    ...State Compensation Commissioner, 130 W.Va. 577, 44 S.E.2d 626 (1947); Syllabus, Pennington v. State Workmen's Compensation Commissioner, 154 W.Va. 378, 175 S.E.2d 440 The findings of the Appeal Board not being plainly wrong, we affirm its decision. Affirmed. Page 866 [162 W.Va. 517] McGRAW,......
  • Morton v. W. Va. Office of Ins. Comm'r, No. 11–1382.
    • United States
    • Supreme Court of West Virginia
    • October 4, 2013
    ...([ ]1977); Myers v. State Workmen's Comp. Comm'r, [160 W.Va. 766] 239 S.E.2d 124 ([ ]1977); Pennington v. State Workmen's Comp. Comm'r, [154 W.Va. 378] 175 S.E.2d 440 ([ ]1970); McGeary v. State Comp. Dir., [148 W.Va. 436] 135 S.E.2d 345 ([ ]1964); Demastes v. State Comp. Comm'r, [112 W.Va.......
  • Request a trial to view additional results

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