Pocahontas Fuel Co. v. Barbour
| Citation | 112 S.E.2d 904,201 Va. 682 |
| Decision Date | 07 March 1960 |
| Docket Number | No. 5046,5046 |
| Court | Virginia Supreme Court |
| Parties | POCAHONTAS FUEL COMPANY, INC. v. OLIVER G. BARBOUR. Record |
John W. Gillespie, for the appellant.
John R. Boggess and Carl C. Gillespie (Gillespie & Gillespie, on brief), for the appellee.
The record before us presents for review an award of the Industrial Commission of Virginia against Pocahontas Fuel Company, Inc. (now Consolidation Coal Company), which granted to Oliver G. Barbour compensation for total disability due to silicosis.
The award put into effect the majority opinion of the Commission from which Commissioner Nuckols dissented.
All the evidence was presented before a hearing commissioner on November 17, 1958, and on January 16, 1959, the commissioner rendered his opinion. He found that claimant had sustained a total wage loss as a result of silicosis contracted while in the employ of the company and directed an award of $30 a week beginning June 13, 1958, to continue for the statutory period unless subsequent conditions justified a modification. The company appealed, and upon a review before the full commission, the hearing commissioner's findings of fact and conclusions of law were affirmed.
It is not denied that Barbour is suffering from second stage silicosis, contracted while in the company's employ, and that it would be definitely injurious for him to work in the mines. Yet the company insists that he is not totally incapacitated for work by reason of the disease. Specifically, it says that the evidence fails to prove that claimant has made any effort to secure employment since he ceased working for the company, and thus he has failed to show that he is unable to market his remaining capacity for work.
The pertinent provision of § 65-51, Code 1950, 1956 Acts, ch. 243, under which the award for total incapacity was made, reads as follows:
'When the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be paid, as hereinafter provided, to the injured employee during such total incapacity, a weekly compensation equal to sixty per centum of his average weekly wages but not more than $30, * * *.'
Barbour, who was 53 years of age on March 28, 1958, was employed by the company from 1925 until December 23, 1957, when he was laid off because of a shut-down of the mine. He was unemployed from that time until June 13, 1958, when the mine was re-opened and he was called back to work. When he reported, the company doctor requested him to go to Bluefield Sanitarium, Bluefield, W. Va., for examination and x-ray. The report from that institution stated that claimant had second stage silicosis. X-rays taken later at St. Luke's Hospital, Bluefield, W. Va., and Clinch Valley Clinic Hospital, Richlands, Va., also indicated second stage silicosis, and claimant was advised by Dr. J. A. Robinson of the latter hospital in a letter to the company doctor 'to moderately restrict his activities and to avoid exposure to dusty and damp atmospheres.'
Dr. Henry F. Warden, Jr., of Bluefield Sanitarium, testified that he ran pulmonary function studies on Barbour and it was his conclusion that claimant could do a full day's work at the mine although he did not think it advisable for him to return to his old occupation of head drill man.
Until he reported for work on June 13, 1958, Barbour was unaware that he had silicosis. Yet the company refused to re-employ him solely because of his disease, and it is conceded that re-employment in the mines is denied to workmen suffering with second stage silicosis. Claimant testified that he could work at manual labor a few hours but was...
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