Perry v. State Workmen's Compensation Commissioner

• Decision Date: 04 February 1969
• Docket Number: No. 12783,12783
• Citation: 152 W.Va. 602,165 S.E.2d 609
• Parties: George E. PERRY v. STATE WORKMEN'S COMPENSATION COMMISSIONER, and Omar Mining Company.
• Court: West Virginia Supreme Court

Page 609

165 S.E.2d 609

152 W.Va. 602

George E. PERRY v. STATE WORKMEN'S COMPENSATION COMMISSIONER, and Omar Mining Company.

No. 12783.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 14, 1969.

Decided Feb. 4, 1969.

Syllabus by the Court

Where a claimant, who has been granted an award for permanent partial disability, less than total, which he has accepted without pursuing his right of appeal, subsequently applies for a reopening and the evidence shows a progression, aggravation or new fact not theretofore considered by the commissioner in making such previous award, which would entitle claimant to greater benefits than he has already received, the commissioner is not precluded from reopening the claim and granting claimant an award for total permanent disability by the fact that, at the time of the previous award, certain physicians in their reports of examination had expressed the opinion that the claimant's condition rendered him totally disabled.

Jeter, Jeter & Jeter, James C. Jeter, Charleston, for appellant.

Estep, Smith & Eiland, Edward I. Eiland, Logan, for appellees.

BROWNING, Judge.

Claimant, George F. Perry, was injured June 13, 1960, when a jack slipped from under a shuttle car on which he was working, striking him on the left leg and throwing him to the ground, causing injury to both legs and back. Sometime later, as a result of the injury, a ruptured intervertebral disc was removed. On November 27, 1963, claimant was awarded a 35% Permanent partial disability. Subsequently, on December 23, 1964, upon a reopening of the claim, an additional 5% Was granted, making a total of 40%. On August 8, 1965, the claimant again applied for a reopening of the claim. The claim was reopened by the commissioner, who after securing medical evidence, entered an order on January 19, 1966, denying any further award. This holding was protested by the claimant and hearings were held, at which further medical evidence was introduced and the testimony of the claimant taken. Thereafter, on June 10, 1968, the commissioner reversed his order of January 19, 1966, and granted claimant an award of total permanent disability. Upon appeal from this order by the employer, the Workmen's Compensation Appeal Board reversed the commissioner and held that claimant had been fully compensated for his injury, to which order this Court granted an appeal on November 25, 1968.

At the time of claimant's injury in 1960, he was fifty years of age, with an eighth grade education and had been employed in coal mines for more than thirty (30) years. He had previously been compensated for an injury to his hand in 1926 and a back injury in 1957. He has also received an award for silicosis in the second stage.

The medical evidence is substantially as follows: Upon attaining his maximum degree of improvement following the 1960 injury, claimant was referred to Dr. R. L. Anderson for examination. Dr. Anderson, on February 14, 1963, found certain limitation of motion of the spine and recommended a 25% Award. Dr. Anderson also noted in a previous report that 'The length of the lower extremities is equal.' The commissioner made an award of 25% Which was protested by claimant. At the hearings pursuant to claimant's protest, claimant introduced the reports of Dr. C. W. Stallard and Dr. F. R. Jamison. The employer introduced the reports of Drs. Russell Kessell and H. A. Swart. All of these physicians noted the limitation of motion, with some deformity, in claimant's back. Dr. Stallard found claimant to be totally and permanently disabled from doing any type of heavy manual labor. Dr. Jamison found 'This claimant is unable to continue his mining work, and I believe that he is totally and permanently disabled.' Dr. Kessell, as stated above, noting the limitations of motion and deformity, also observed that the 'legs are equal in length,' and recommended 25%. Dr. Swart observed the same objective findings, also finding 1/4 inch atrophy of the left leg, and recommended 35%. The commissioner awarded claimant 35%, which the claimant accepted and was paid. All of the foregoing examinations were in 1963.

In September, 1964, claimant petitioned the commissioner for a reopening of his claim, submitting in support thereof the report of Dr. F. M. Viscuse dated September 11, 1964. Dr. Viscuse found the limitation of motion and deformity, 1/2 inch atrophy of the left leg and a 1/2 inch shortening of the left leg and recommended a total permanent disability award. The commissioner reopened the claim and referred claimant to Dr. G. R. Callender. Dr. Callender noted an increased limitation of motion, although finding claimant improved in some respects, and recommended an additional 5% Over that which he had already received. The commissioner granted claimant the additional 5%, making a total of 40%, which the claimant accepted and was paid.

On August 30, 1965, claimant again petitioned for a reopening, submitting a report of Dr. Viscuse, dated August 12, 1965, in which Dr. Viscuse stated: 'This man's condition is worse than when he was paid his last award. I have compared my objective findings of today with the previous findings in this case and I now find that there has been a definite progression and aggravation of his condition. He now has * * * more residual pain and deformity * * * and more limitation of movement * * * In addition he now has pain and limitation of movement of the cervical spine and a 1 inch shortening of the left leg, a fact not previously considered in this case. I think that this man is unable to perform any type of work as a result of his injuries and definitely is totally disabled at this time.' The claim was reopened and claimant was again referred to Dr. Callender who found some increase in the 'lumbar lordosis', a 1/8 inch increase in the atrophy of claimant's left calf but otherwise found claimant's condition to be about the same as on his previous examination and did not recommend an increase over the 40% Perviously awarded claimant. The commissioner entered an order denying further benefits which claimant protested. At the hearings pursuant to the protest, claimant testified that since the 40% Award he had secured employment as a plant guard in Ohio and had worked 8 six-hour shifts but was unable to continue because of his physical condition and pain. Also, several additional medical reports were introduced. For the claimant, Dr. F. R. Jamison, in a report dated May 12, 1966, stated: '* * * this claimants' general condition has become progressively more disabling. Claimant now has marked changes in locomotion, stability and increased loss in normal function of the spine. I believe ...