Ramey v. State Compensation Commissioner

• Decision Date: 15 February 1966
• Docket Number: No. 12540,12540
• Citation: 150 W.Va. 402,146 S.E.2d 579
• Court: West Virginia Supreme Court
• Parties: Jesse Ford RAMEY v. STATE COMPENSATION COMMISSIONER et al.

Page 579

146 S.E.2d 579

150 W.Va. 402

Jesse Ford RAMEY v. STATE COMPENSATION COMMISSIONER et al.

No. 12540.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 12, 1966.

Decided Feb. 15, 1966.

Syllabus by the Court

1. An eyewitness to the event which is alleged to have caused an injury to a claimant in a workmen's compensation case is not an indispensable prerequisite to an award of workmen's compensation benefits for such injury.

2. An order of the workmen's compensation appeal board which is not supported by the evidence and which for that reason is plainly wrong will be reversed by this Court on appeal.

Herbert H. Henderson, Huntington, for appellant.

Huddleston & Bolen, Edwin W. Conley, Huntington, for appellee.

CALHOUN, Judge:

This case is before the Court on an appeal by Jesse Ford Ramey, the claimant, from an order of the workmen's compensation appeal board dated October 28, 1965, which reversed an order of the workmen's compensation commissioner dated July 16, 1965, affirming his previous order of September 6, 1963, by which he held that the claim was compensable.

In its opinion filed in connection with the order of October 28, 1965, the board stated that it was 'of the opinion that the Claimant has not sustained the burden of proving a compensable injury.' The primary question presented for decision is whether the proof is sufficient to establish the claimant's contention that he sustained an injury on December 10, 1962, during the course of and as a result of his employment as a welder by ACF Industries, Inc., at its plant in Cabell County.

Apparently the claimant had been employed by ACF Industries, Inc., for approximately six years prior to December 10, 1962, the date of his alleged injury. He testified that on the morning of that day, in connection with his employment as a welder he was carrying on his shoulder welding rods weighing approximately fifty pounds between two buildings belonging to his employer; that, while doing so, he stepped on something which caused him to slip, as a consequence of which his knees buckled, he fell forward and downward, and sustained 'an enormous pain' in his back; that an unidentified fellow-employee caught the welding rods as the claimant fell; that, though he did not feel well because of his fall, he continued to work during the remainder of that day; that next morning he was unable to get out of bed; that, as a consequence of the injury to his back, he remained in bed until December 14, 1962, when his brother-in-law took him to see Dr. G. C. Morrison, a physician; that, prior to the date of his injury, he had experienced no difficulty whatsoever with his back and that he had not lost any time from work because of any pain in his back; that, because of the injury, he has been unable to work since he sustained the injury; that, on the day following his injury, December 11, his daughter, at his request, called to notify the employer that the claimant would be unable to report for work; and that, on December 14, 1962, his brother-in-law took him to the employer's plant where he talked with and reported the injury to Herman L. Frazier and Harry L. Kirk.

Mary Rowe, daughter of the claimant, testified that, on December 11, the day following the alleged injury, she made a telephone call to the employer's plant by which she advised Harry L. Kirk, the employer's personnel manager, that the claimant was not able to come to work that day.

Emmett Gibson testified that he and the claimant were fellow-employees; and that 'in the first part of December,' though he was not certain of the date, while they were working together, the claimant 'come in and said he had hurt his back.' Counsel objected to testimony of this character, concerning declarations or complaints made to the witness by the claimant, on the ground that such testimony was hearsay. The examiner, before whom the hearing was being conducted, continued to sustain similar objections to similar testimony on the basis of the hearsay rule. He admonished the witness not to testify as to 'what anyone told you,' whereupon the witness replied: 'I didn't say anyone. He told me. He said he hurt his back.'

Dr. G. C. Morrison testified that the claimant came to his office on December 14, 1962, to consult him professionally concerning an injury to his back; that the claimant reported that he had suffered an injury to his back when he fell on December 10, 1962, while carrying some welding rods 'at work at American Car;' that the claimant apparently was suffering from a sprained back; that his overall physical condition was good 'other than his pain in his back;' that he recommended that the claimant apply heat to his back, remain off his feet and stay in bed; that the claimant returned to consult him on December 17 and December 24, and from time to time thereafter; that he recommended that the claimant have an x-ray but that the x-ray was not made until January 10, 1963; that the claimant consulted the witness professionally on March 19 and April 2, 1963, and that the claimant then 'was getting along fine' but that on April 18, the claimant came to the office of the witness and 'was limping quite a little;' that the claimant stated that he, on April 15, had sprained his back again while chopping down a tree with an ax; and that the claimant apparently was totally disabled from working from December 14, 1962, the date of the first visit to the doctor's office, until April, 1963. He testified that the claimant 'reinjured' his back while swinging an ax on April 15. The witness gave the following additional answer: 'Yes, I couldn't say whether his first injury was will before he had the second injury, or whether the second injury was responsible for his disability. I don't think anybody can tell you that.' The witness testified that on April 2, 1963, the last time the claimant saw him before the back injury was aggravated by use of an ax on April 15, the claimant still 'limped a little bit.' Apparently it was on the occasion of the visit of April 18, 1963, when the patient reported he had hurt his back again or anew while using an ax on April 15, that Dr. Morrison referred the claimant to an orthopedist. The doctor testified further that he had not released the claimant to return to work prior to the time of the ax episode.

Dr. J. Marshall Carter, an orthopedic surgeon, a witness for the claimant, testified that he first saw the claimant on June 17, 1963; that the claimant was then using a cane and that the claimant reported that he was using the cane because of an injury he sustained during the course of his employment on December 10, 1962, and in the manner previously stated in this opinion; that the claimant stated that the pain was not so severe at the outset; that he continued to work during the day on which the injury was sustained; that next morning his pain was more severe and he reported the injury that day to the employer; that the claimant stated he had been unable to work since the day he sustained the injury; that his chief complaints were of low back pain and pain in the left lower extremity; that there was very little motion in claimant's back; that 'On attempting to have him bend forward or laterally there was only a few degrees of motion and he complained of pain in his back;' that, in connection with physical thereapy administered to the claimant, it was noted that he had 'pain and muscle spasm and with muscle stimulation over the left sciatic notch region and over the left lower lumbar area and over the left hamstring region the patient complained severely of pain.' Dr. Carter recommended that the claimant be admitted to a hospital because of the doctor's opinion that claimant had 'a herniated or bulging disk.' Accordingly the claimant was admitted to a hospital on July 26, 1963, where 'a laminectomy was done' on July 29, 1963. Dr. Carter testified further that the hospital experience was satisfactory and that the patient was discharged in about eight days, a normal length of time. He testified that he last saw the claimant on November 11, 1963, 'at which time he was still complaining of some back pain and left leg pain;' and 'I accepted the history as given me and the description of his injury of 12/10/62, which certainly could be the type of injury that could cause his complaints and physical findings.'

Herman L. Frazier, a witness for the employer, testified that he was employed by ACF Industries, Inc., to administer group insurance. It appears from the testimony that the employer was covered by workmen's compensation and that, in addition, it carried one type of insurance for injuries sustained by employees apart from their employment and another type of insurance which supplemented workmen's compensation in respect to injuries related to the employment. Frazier identified an application for insurance benefits made by the claimant and dated February 12, 1963. The application contained two squares, one designated 'yes' and the other designated 'no,' which were designed to indicate whether the injury arose from the employment. On this application for insurance benefits, a check mark appears in the square which would indicate that the injury did not arise from the employment. The employer urges that this discloses an inconsistency of positions on the part of the claimant. In relation to this contention,...