Rasmus v. Workmen's Compensation Appeal Board
| Decision Date | 04 February 1936 |
| Docket Number | 8305. |
| Citation | 184 S.E. 250,117 W.Va. 55 |
| Parties | RASMUS v. WORKMEN'S COMPENSATION APPEAL BOARD. |
| Court | West Virginia Supreme Court |
Submitted January 8, 1936.
Rehearing Denied March 16, 1936.
Syllabus by the Court.
1. Upon appeal from the Compensation Commissioner to the Workmen's Compensation Appeal Board under chapter 78 of the Acts of the Regular Session of 1935, the board is in nowise bound by the findings of fact by the commissioner, but itself becomes a fact-finding tribunal, with authority to enter such order or make such award as the commissioner should, in its opinion, have entered or made upon the proof before him.
2. An order of the Workmen's Compensation Appeal Board reversing an award of compensation made by the Compensation Commissioner will be reversed in this court where, upon the proof taken before the commissioner and acted upon by the board, the order of the board appears clearly to have been wrong.
3. "Heat exhaustion attributable to a specific event is compensable under our Workmen's Compensation Act, if shown to have resulted from special or particular risks or dangers attendant to the employment, to which the general public is not exposed." Collett v. State Compensation Commissioner (W.Va.) 179 S.E. 657, Pt. 3 Syl.
Proceeding under the Workmen's Compensation Act by Mary Rasmus claimant, for the death of her husband, Stanley Rasmus employee, opposed by Herman Strauss, employer. From an order of the Workmen's Compensation Appeal Board reversing an award of compensation by the Compensation Commissioner claimant appeals.
Reversed and remanded.
A. C. Schiffler and E. L. Harrison, both of Wheeling, for appellant.
Homer A. Holt, Atty. Gen., and Kenneth E. Hines, Asst. Atty. Gen., for Workmen's Compensation Appeal Board.
Carl G. Bachmann and Lester C. Hess, both of Wheeling, for employer Herman Strauss.
On June 9, 1933, Stanley Rasmus was prostrated by heat while operating a 10-ton crane in the junk yard of Herman Strauss in the city of Wheeling. He was taken at once to a hospital where he died soon thereafter. Claim of his widow for compensation was presented to and denied by the Compensation Commissioner; an appeal was allowed to this court, pursuant to which, on January 15, 1935, the order of the Compensation Commissioner was reversed and the case was remanded "for further development relative to Stanley Rasmus' exposure, or nonexposure, by reason of his employment, to special or peculiar danger from the elements, not experienced by other persons in the community, whereby the said Stanley Rasmus suffered a heat stroke, which resulted in death." On April 26, 1935, in the city of Wheeling, further proof, relative to the question for the further development of which the case was remanded, was taken.
This additional proof discloses that the crane in question was mounted upon a steel flatcar running on rails; that the crane was operated by a gasoline engine housed in a steel shed with a steel roof, the back and front of which were removed at the time in question; that there was a steel seat within two and a half or three feet of the engine upon which the operator sat at times, and that a fan intended to keep the engine cool threw the engine heat from the front back toward the operator; that there was steel and other metal junk in the yard on each side of the crane piled from two feet to ten or twelve feet in depth. Based upon these physical conditions, Dr. J. R. McClung, a witness for the claimant who had testified in the former hearing, stated that in his opinion the circumstances surrounding the decedent in the crane, and the presence of metal in large quantities and in close proximity to the place where Rasmus was working, would subject him to greater danger of heat prostration than that which would be encountered by others working under the same weather conditions in the open. Rasmus seems to have suffered the stroke from which he died at between 11 and 11:30 in the morning. Earlier that morning, he seems to have complained of feeling ill, doubtless also due to the heat. The temperatures in the city of Wheeling on the day in question are shown at several different times of the day and range from 89 degress at 8 o'clock to 100 degress at noon. There is testimony tending to show that it was cooler in the cab of the crane than upon the ground immediately surrounding the crane.
In this state of the case, an award of compensation was made by the Compensation Commissioner, and upon appeal to the Workmen's Compensation Appeal Board the award was reversed, and this appeal is prosecuted from the order of the board reversing the award of the commissioner.
The first question to be presented and decided is the weight that must be given by the Workmen's Compensation Appeal Board to the finding of fact by the Compensation Commissioner upon an appeal to the board from a finding of the commissioner. This question, we think, is entirely covered by the statute (chapter 78, Regular Session of 1935) creating the Workmen's Compensation Appeal Board, and more particularly by the following language quoted from section 3 of article 5 of that act. The language in question, with italics supplied, is as follows: "At any such hearing the board shall consider the record before...
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