Pripich v. State Comp. Comm'r.

• Decision Date: 20 September 1932
• Docket Number: (No. 7380)
• Citation: 112 W.Va. 540
• Court: West Virginia Supreme Court
• Parties: Andy Pripich v. State Compensation Commissioner et al.

112 W.Va. 540

Andy Pripich

v.State Compensation Commissioner et al.

(No. 7380)

Supreme Court of Appeals of West Virginia.

Submitted September 7, 1932.

Decided September 20, 1932.

1. Master and Servant

Where, in the course of and arising out of his employment, an employee in good health and of strong physique, suffers physical injury which is followed by serious disabilities, competent physicians differing as to whether the disabilities are attributable to the injury, but only probable or conjectural reasons or causes are assigned by physicians in an effort to explain the disabilities on grounds other than the injury, the presumptions should be resolved in favor of the employee rather than against him.

2. Master and Servant

"Where the facts concerning a claim for compensation, arising under the Workmen's Compensation Act, are not sufficiently developed by evidence to enable the commissioner or the court to arrive at the real merits of the claim, an order may be entered here re-committing the case to the commissioner for further development." Holland v. Compensation Commissioner, 112 W. Va. 507, 165 S. E. 675.

Proceedings under the Workmen's Compensation Act by Andy Pripich. From a ruling of the State Compensation Commissioner refusing to award claimant additional compensation and closing the claim, the claimant appeals.

Reversed and, remanded, with directions.

Harrison Conaway and John E. Amos, for appellant. II. B. Lee, Attorney General, and R. Dennis Steed, Assistant Attorney General, for respondents.

Maxwell, Judge:

An appeal has been awarded claimant from a finding of the State Compensation Commissioner of April 6, 1932, refusing to award additional compensation and closing the claim.

Claimant was injured December 8, 1927, while employed as a coal loader for The Consolidation Coal Company in one of its mines at Baxter. It was first reported that the muscles of his back were bruised and sprained and "contusions of right side over liver and back.'' He was paid compensation for 13-3/7 weeks at $14.03 per week as an open claim. On February 13, 1929, this award was increased to 80 weeks being on the basis of a twenty per centum disability. Payments terminated June 27, 1929.

His condition did not thereafter improve. He was examined by several doctors and treated for tonsillitis, rheumatism, lumbago, gastritis and eventually operated on for appendicitis. About ten months after the accident, some of the doctors who examined him with the aid of an X-ray stated that claimant had sustained an injury to the dorsal and lumbar vertebrae. He was examined by a physician of the Compensation Department about a year following the accident and the X-ray disclosed an injury to the lower dorsal and upper lumbar vertebrae and "slight compression and marked lipping of the 10th, 11th and 12th dorsal and the 1st and 2nd lumbar vertebrae." There was also a slight scoliosis to the right. Claimant's trouble was diagnosed as "probably a traumatic arthritis." Subsequent examinations made by numerous doctors both in behalf of claimant and the commissioner also disclosed injury to the spine. The doctors making these later examinations differed only in describing the resultant effects of the injury upon claimant. He was variously reported to be suffering from a compression fracture, lipping of the vertebrae, hypertrophic arthritis, traumatic arthritis, kyphosis, curvature of the spine, limitation of motion in the lumbar spine, and narrowing of the inter-vertebrae discs.

Some of the doctors stated that claimant's condition was not attributable to the injury; others stated that his condition was not wholly so attributable. However, many doctors were of opinion that his condition was a direct result of...