Proffitt v. State Comp. Comm'r.

• Decision Date: 14 January 1930
• Docket Number: (No. 6589)
• Citation: 108 W.Va. 438
• Court: West Virginia Supreme Court
• Parties: Mary Proffitt v. State Compensation Commissioner et al.

108 W.Va. 438

Mary Proffitt

v.State Compensation Commissioner et al.

(No. 6589)

Supreme Court of Appeals of West Virginia.

Submitted January 8, 1930.

Decided January 14, 1930.

Master and Servant To Appeal From Denial of Compensation Claim on Ground Going to Basis Thereof, Statutory Procedure Respecting Hearing Must be Allowed, Though Injury Occurred Prior to Enactment (Acts 1929, c. 71, § US).

Before a claimant can appeal from a decision of the State Compensation Commissioner denying his claim on some ground going to the basis of his claim, the procedure required by Chapter 71, section 43, Acts 1929, must be followed.

Proceeding under the Workmen's Compensation Act by Mary Proffitt, claimant, for death of her husband, Charlie Proffitt, from an injury received while in the employ of the Dry Fork Colliery Company. From a ruling of the State Compensation Commissioner, refusing compensation, claimant appeals.

Appeal dismissed.

Froe, Capehart & Miller, for appellant. Howard B. Lee, Attorney General, and R. Dennis Steed, Assistant Attorney General, for respondents.

Lively, President:

The vital question before the Commissioner was whether Charlie Proffitt's death resulted from an accident received by him in the course of and arising from his employment. He decided the question in the negative on March 13, 1929, and claimant obtained this "appeal." We are asked to review the evidence and reverse the Commissioner because, as asserted by claimant's counsel, the Commissioner clearly erred in the interpretation and effect of the evidence. It may be observed that these so-called "appeals" from the finding of the Commissioner are entertained by this Court as if brought here under process of original jurisdiction such as mandamus, prohibition or the like. That is the only way the "appeal" provided for in the statute can be upheld so as to give this Court jurisdiction. The Compensation Commissioner is not a part of the judiciary of the state, and under the constitution appeals to this Court lie only from judicial decisions of inferior courts. The discussion of our power to review the orders of the Public Service Commission, found in United Fuel Gas Co. v. Public Service Commission, 73 W. Va. 571, 80 S. E. 931, applies to orders and findings of the Compensation Commissioner. Hence, in order that the findings of the Commissioner may be annulled, it must appear that the claimant has a clear legal right to his compensation; and we have held in numerous cases that if there is substantial evidence to support the finding of the Commissioner it will not be disturbed. Heaton v. Compensation Commissioner, 106 W. Va. 563, 146 S. E. 368.

It appears that Charlie Promtt, a miner, employed by the Dry Pork Colliery Company, was injured by a slate fall on October 27, 1927. He was treated on the day of the injury by Dr. D. D. Hatfield, and sent by him to the Welch Hospital No. 1. Here an examination was made which disclosed a complete comminuted fracture of the fifth metacarpal one-half inch from the metacarp-phalangeal joint of the left hand. Dr. Hatfield continued, at intervals, to examine Promtt's hand, and in January reported to the Compensation Department that wounds were healed but that Proffitt complained "a lot and looks to have a permanent ankylosis of the small finger." In February, his report indicated the condition of the injured man as "ankylosis of the index and second finger." The Compensation Department then directed Proffitt to report to Dr. II. G. Camper, a practicing physician at Welch, West Virginia, for an examination. This he did, and Dr. Camper's report stated: "I can think of no surgical treatment that will give this man better use of his fingers as the tendons are cut and there is definite ankylosis. I think he would have a much better hand if the middle, ring, and index fingers were amputated at the distal third of the first phalanx." Dr. Camper recommended an 18% disability, which was granted in February, 1928, and Proffitt received compensation until his sudden death on April 20, 1928.

Mary Proffitt, the widow of the employee, contends that her husband's death was caused by the injury to his left hand. Her husband, according to her affidavit, had not been ill for about ten years prior to the injury in 1927. She stated that, after the injury, her husband's hand had never been '' opened to release bruised blood'' and that '' about two weeks before his death, his hand began to swell and turn blue in spots, and his arm also became discolored; during this time he complained of sharp shooting pains going out from his hand through his arm to his heart." Similar statements were made bv neighbors of Proffitt. The widow stated also that the oigiit before her husband's death he said: '' It seemed as if a heavy weight went from his hand to his head...