Poccardi v. Public Service Commission
| Decision Date | 26 January 1915 |
| Docket Number | 2791. |
| Citation | 84 S.E. 242,75 W.Va. 542 |
| Parties | POCCARDI, ROYAL CONSUL OF ITALY, v. PUBLIC SERVICE COMMISSION. |
| Court | West Virginia Supreme Court |
Submitted January 13, 1915.
Syllabus by the Court.
Under its supervisory power over the Public Service Commission respecting its administration of the Workmen's Compensation Act (Code 1913, c. 15p, §§ 1-55 [secs 657-711]), this court takes cognizance of questions of law only.
In the absence of conflict in the evidence adduced to show a claimant's right to participation in the Workmen's Compensation Fund, the Commission is regarded, in this court as a demurrant to the evidence, and, if the evidence would sustain a verdict of a jury in favor of the claimant, the claim is regarded as sufficiently proved.
It is the duty of the Commission, under such circumstances, to give the claimant the benefit of inferences arising in his favor from the facts proved, in the absence of direct evidence.
A rupture caused by a strain while at work is an accident or untoward event, arising in the course of employment, and compensable under the Workmen's Compensation Act.
Proof of apparent previous good health, a heavy and unusual lift in the course of work, discovery of rupture on the second day thereafter, death from surgical operation for relief thereof and opinion of the operating surgeon that the rupture was caused by the lifting, is sufficient to establish accidental injury in the course of employment, within the meaning of said act.
Petition by Gaetena Poccardi, Royal Consul of Italy, on behalf of the widow of Cataldo Gresco, against the Public Service Commission. Ordered that claim presented be paid.
Robinson, P., dissenting.
Joseph Henderson and Francis Rawle, both of Philadelphia, Pa., for petitioner.
A. A. Lilly, Atty. Gen., and Frank Lively, Asst. Atty. Gen., for respondent.
Gaetano Poccardi, royal consul of Italy, on behalf of the widow of Cataldo Greco, an Italian subject, and his sole dependent, complains of an order of the Public Service Commission, rejecting her claim against the Workmen's Compensation Fund.
Though a surgical operation for strangulated hernia precipitated Greco's death, the legally proximate cause thereof was the hernia. But, in the opinion of the Commission, the hernia did not result from accidental injury. Just before his death, Greco was an employé of the Phillips Sheet & Tin Plate Company at Weirton, W.
Va. On the 10th day of April, 1914, he and some of his fellow workmen lifted a heavy iron pipe called a "jim pole." He worked the next day, but illness required him to go to bed on Sunday, the second day after the exertion to which reference has been made, where he remained until April 14, 1914, without attention from a physician. On that day, Dr. L. A. Whittaker was called. Finding his condition serious, the doctor had him removed to a hospital on the 15th, performed the operation on the 16th, and the patient died on the 20th. A post mortem examination, made on the day of the death, revealed dilatation of the right ventricle of the heart as the immediate cause of death; the wound showing no unfavorable indications. Weakness of the heart had been observed while he was on the operating table.
Loney Marino, a fellow workman, says Greco, after carrying the "jim pole" to the machine shop, had thrown his hands back to his hips as though he had injured himself. The man who had charge of the men engaged in the removal of the pipe and the labor boss at the plant say neither of them heard any complaint of injury. A verified certificate of the chief clerk of the company for which Greco had worked says he "strained himself" in carrying the pipe, and "first complained of his injury in machine shop." It further says "to the best of" affiant's knowledge "the injury causing death was sustained in the course of the deceased's employment. A report of the attending physician says the hernia and strangulation were "brought on by lifting jim pipe in mill, overworking." He further reports specifically that the disability was due to the accident previously mentioned by him, and that Greco had not been maimed or crippled by previous injury.
After the claim had been rejected, the applicant filed a letter from Dr. Whittaker, directed generally to whom it may concern, saying Greco had been injured in the course of his employment. He further said that, at the time of his investigation, he had understood him to say, through an interpreter, that he had been ruptured previously, but was now assured by the interpreter that he had misunderstood him. This seems to have been considered as upon an application to reopen or rehear the case. The Commission was notified that several persons, who had known the decedent, were ready to testify to his previous good health. A joint affidavit of these persons to the fact and also one made by three other persons to the effect that he had complained of abdominal discomfort immediately after the lifting of the pipe seem to have been taken, but, if so, they were not filed with the Commission at any time, nor in this court. What purport to be copies of such affidavits appear only in the brief of counsel for the petitioner. If such affidavits exist, it is not perceived how they can be considered here; they never having been filed in the proceeding in any manner or at any stage thereof.
Meager development of the merits of the case before the Commission justifies, in the opinion of some of the members of the court, refusal of the prayer of the petitioner. No doubt the operating surgeon could have determined whether the rupture was an old one or the result of disease, or a fresh wound occasioned by a strain. As to the appearance of the wound, no inquiry seems to have been propounded to him wherefore the evidence lacks detail and particularity, which no doubt could have been supplied. One or more of the members of the court entertain the view that the evidence is defective in form and character, justifying rejection, on the ground of failure on the part of the applicant to develop the facts. A further suggestion is that the finding of the Commission is of equal dignity with the verdict of a jury and cannot be disturbed, unless plainly wrong.
The action of the Commission is final and irreviewable, except as to matters "going to the basis of the claimant's right." Code, c. 15p, § 43, serial section 699. As to such matters, its function is administrative, only quasi judicial, and the supervisory power of this court over its action, respecting the right of the claimant, is under its original jurisdiction by mandamus. De Constantin v. Pub. Ser. Com., 83 S.E. 88. In this respect, our statute accords with the English compensation act and those of several of the states, limiting the power of review to questions of law. Gane v. Colliery Co., 2 B. W. C. C. 42; Turner v. Bell & Sons, 4 B. W. C. C. 63; Moss & Co. v. Akers, 4 B. W. C. C. 294; Illinois Act (Hurd's Rev. St. 1913, c. 48) § 19; Iowa Act (Acts 35th Gen. Assem. c. 147) § 34; Massachusetts Act (St. 1911, c. 751) pt. 3, §§ 10, 11; Michigan Act (Pub. Acts 1912, No. 10) pt. 3, §§ 11, 12, 13; Minnesota Act (Gen. St. 1913, §§ 8216, 8225) §§ 22, 30; Bradbury's Work. Com. c. 16, p. 892 et seq.
Under the English act, the courts regard the employer, whose place, under our statute, the Commission takes, as a demurrant to the evidence, when the issue is one of mere sufficiency thereof. If the evidence adduced or the facts found or disclosed are uncontradicted and would sustain a verdict of a jury in favor of the claimant, there is liability, as a matter of law, and legal duty to pay the claim arises. Mitchell v. Glamorgan Coal Co., 9 W. C. C. 16; Wright v. Kerrigan, 4 B. W. C. C. 432; Owners of Steamship v. Rice, 4 B. W. C. C. 298. What rule would govern in a case of conflicting evidence, it is unnecessary to say, since the evidence adduced here is free from conflict. All of it points in the same direction, and the only question is the weight to which inferences arising from the facts are entitled.
The written opinion adopted by the Commission rests largely upon the sound legal proposition that evidence giving rise to inferences consistent with the theory of liability and inconsistent therewith, in equal degree,...
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