Pertee v. State Workmen's Compensation Com'r

• Decision Date: 19 June 1979
• Docket Number: No. 14406,14406
• Citation: 255 S.E.2d 914,163 W.Va. 215
• Parties: Donald Ray PERTEE v. STATE WORKMEN'S COMPENSATION COMMISSIONER and United States Steel Corporation.
• Court: West Virginia Supreme Court

Page 914

255 S.E.2d 914

163 W.Va. 215

Donald Ray PERTEE v. STATE WORKMEN'S COMPENSATION COMMISSIONER and United States Steel Corporation.

No. 14406.

Supreme Court of Appeals of West Virginia.

June 19, 1979.

Syllabus by the Court

1. Where, as a result of multiple recurrent inguinal hernias, the last two having occurred in his present employment, a Workmen's Compensation claimant is unable to engage in substantial gainful activity requiring skills or abilities comparable to those of any gainful activity in which he has previously engaged with some regularity and over a substantial period of time, he is entitled to a permanent total disability award.

2. The second injury life award statute, W.Va.Code, 23-3-1, was purposely designed to encourage employers to hire disabled workers by not charging an employer for preexisting disabilities.

3. "Where evidence discloses that the precipitating cause of a current workmen's compensation disability was a current injury, but permanent and total disability would not have resulted but for the combined effect of the current injury and a previous injury, the employee shall be entitled to a total disability award, but the employer shall be chargeable only for the compensation payable for the second injury where the previous injury caused a definitely ascertainable impairment although the percentage of disability for the previous injury is not ascertainable." Syllabus Point 6, Posey v. State Workmen's Compensation Commissioner, W.Va., 201 S.E.2d 102 (1973).

Ballard & Brumfield, McGinnis E. Hatfield, Welch, for appellant.

Love, Wise, Robinson & Woodroe, George W. S. Grove, Jr., Charleston, for appellees.

MILLER, Justice:

In this appeal the claimant, Donald Ray Pertee, argues that the State Workmen's Compensation Commissioner and the Appeal Board erred in not finding him permanently and totally disabled under the second injury life award statute, W.Va.Code, 23-3-1, by virtue of the combined effects of six inguinal hernia injuries. We agree with the claimant's position.

I

The employer, United States Steel Corporation, initially raises the question of whether there was sufficient proof of the existence of the last two hernias, which allegedly occurred in December, 1969, and May, 1970, while claimant was in its employment. This issue, however, is foreclosed by our former decision, Pertee v. State Workmen's Compensation Commissioner, 156 W.Va. 773, 197 S.E.2d 318 (1973), which serves to outline the facts surrounding the claimant's prior hernias. In that case, we settled the compensability of the last two hernias, and all that remained to be done was to determine the amount of permanent disability. On remand, the claimant was awarded a 5 percent permanent partial disability.

II

The medical evidence surrounding the claimant's disability is not in substantial conflict. All the doctors who examined the claimant found that as a result of multiple hernias in the same area, the claimant is subject through physical activity to a recurrence of hernia because of a weakening of the muscles and tissue in that area. The doctors were of the view that he could not engage in heavy physical labor.

A Dr. Murry examined the claimant after the last hernia and testified at a 1971 hearing that claimant had a recurrent hernia. The claimant testified that Dr. Murry had suggested that he seek welfare benefits, since his condition would probably preclude him from reemployment.

At another hearing, a Dr. Bradford stated that as a result of multiple hernias, the claimant is unable to engage in any manual labor which involves strenuous physical activity. He also stated in his medical report of March 21, 1977: "The rate of recurrence in hernia increases remarkably following the first and each succeeding or additional operation . . . Most corporations would hesitate to hire anyone that had previous hernial surgery to the extent that Mr. Pertee did."

A Dr. Powers agreed the claimant could not undertake strenuous activity, and spoke of the fact that "in view of the number of (hernia) recurrences that he has had, the strength of the muscles and the repair in this area would be questionable. Therefore, I doubt very seriously if he would be able to do any real strenuous work because of the muscle weakness in this area . . . ." The doctor also noted on his examination that claimant was extremely tender at the site of the hernia.

In regard to successful surgical repair where a person has had recurrent hernia, a Dr. Thomas stated: "I think the more hernia repairs you have the chances you have to get a successful repair are slimmer. The chances of having a cure of the hernia probably is now very slim." Dr. Thomas was also of the view that the claimant's hernia problem prevents him from doing physical labor and that his condition is permanent.

Several lay witnesses testified that claimant is limited in his normal physical activity and that he limps. A previous employer testified that he had observed the claimant moving with difficulty since the last two hernias, and that on one occasion he had to assist him in moving his legs into a car. He stated that although claimant had been a good worker, he would not reemploy him because he did not want to jeopardize his compensation rates.

Both the claimant and his wife testified that pain and swelling exist at the site of the hernia and that any strain causes the area to swell. The pain and swelling are reduced if the claimant lies on his back with his legs elevated. For the past six years he has slept with a pillow between his legs to ease the pain.

Finally, the record demonstrates that the claimant is 39 years of age, has only a grade school education, and has no special training or work skills. His entire employment history has been confined to work requiring heavy physical labor.

In Shrewsbury v. State Compensation Commissioner, 127 W.Va. 360, 32 S.E.2d 361 (1944), this Court overturned a 5 percent permanent partial disability award for a 26-year-old claimant who had suffered a second inguinal hernia, but who refused to undergo a corrective operation. At that time, W.Va.Code, 23-4-7, provided that if the claimant refused "to undergo the medical operation for the cure of said hernia no compensation will be allowed . . . ." ¹ This section also provided that if the claimant's physical condition was such "that it is considered unsafe for him to undergo such operation . . . ." he was entitled to receive a permanent disability award under W.Va.Code, 23-4-6. Shrewsbury concluded:

"Here the claimant has not shown, nor attempted to show, that it would be physically unsafe to have the operation performed. Neither has it been shown that it would be physically unsafe not to submit to an operation. It has been shown that, in his present condition, Shrewsbury will not be able to follow his usual occupation as motor brakeman and that his compensation award is much less than his usual earnings in his ordinary occupation." (127 W.Va. at 365, 32 S.E.2d at 363)

Certainly Shrewsbury suggests that this Court considered the claimant to be virtually totally disabled, since it set aside the 5 percent award and directed a reevaluation of the amount of disability. A review of our hernia cases does not reveal, however, any case where this Court has specifically held that a claimant can become totally and permanently disabled as a result of multiple hernias. Our cases do, however, reflect that this Court has perhaps been more liberal in viewing a hernia case in favor of the claimant than in most other industrial injury cases. See, e. g., Johnson v. State Compensation Commissioner, 128 W.Va. 37, 35 S.E.2d 677 (1945); Szalay v. State Compensation Commissioner, 127 W.Va. 449, 33 S.E.2d 236 (1945); Cole v. State Compensation...