Ratcliff v. State Compensation Com'r

• Decision Date: 13 February 1962
• Docket Number: No. 12127,12127
• Citation: 123 S.E.2d 829,146 W.Va. 920
• Court: West Virginia Supreme Court
• Parties: Theodore RATCLIFF v. STATE COMPENSATION COMMISSIONER and E. I. duPont deNemours & Company.

Page 829

123 S.E.2d 829

146 W.Va. 920

Theodore RATCLIFF v. STATE COMPENSATION COMMISSIONER and E. I. duPont deNemours & Company.

No. 12127.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 10, 1962.

Decided Feb. 13, 1962.

Syllabus by the Court

Where an employee files his application for workmen's compensation benefits, based on the occurrence of an occupational disease other than silicosis, to entitle him to an award, he must establish that the disease was contracted in the course of and resulted from the employment: it is not sufficient to establish that the employment resulted in an aggravation of a disease existing at the beginning of such employment.

James G. Jeter, Jr., Charleston, for appellant.

W. Victor Ross, Spilman, Thomas, Battle & Klostermeyer, Charleston, Fred L. Davis, McCluer, Davis, McDougle, Stealey & Morris, Parkersburg, for appellees.

GIVEN, Judge.

The claimant, Theodore Ratcliff, filed his application with the State Compensation Commissioner, claiming the right to benefits based on the occurrence of an occupational disease other than silicosis. The Commissioner granted an award for 'total temporary disability benefits from February 7, 1959 through June 6, 1960'. The Workmen's Compensation Appeal Board reversed the order of the Commissioner, holding that the pertinent statutory provision 'clearly excludes from compensability mere aggravation of disease other than silicosis'.

Claimant, a boiler maker and welder, was employed by E. I. duPont deNemours & Company from December 10, 1956 to February 7, 1959. A material part of his assigned duties was welding in the inside of metal tanks, where he was subjected to and inhaled welding fumes. He became ill in January, 1959, and has not worked since February, 1959. Claimant, prior to his employment with E. I. duPont deNemours & Company, was engaged in the same general type of welding with other employers in and out of the State. In view of the finding of the Occupational Diseases Medical Board, and the nature of the question now involved, details of the former employment appear immaterial.

The problem involved is made to clearly appear by reference to certain actions in proceedings before the Workmen's Compensation Appeal Board. In Leevale Collieries, Inc. v. Frank Peayatt, Appeal No. 4049, decided June 6, 1953, an award was allowed for the aggravation of a pre-existing eczema, wherein Mr. Moler, dissenting, stated that in his opinion 'the legislative intent to make a difference between silicosis as an occupational disease and all other occupational diseases is clearly apparent from the face of the statute and that since compensation for perceptible aggravation of silicosis is expressly included, the omission or any similar reference to aggravation of any other occupational disease in the same statute is too significant to be overcome by applying the analogy of treatment of silicosis and injury cases * * *'.

In a later proceeding, Union Carbide Corporation v. State Compensation Commissioner and Clifford C. Moss, Appeal No. 5540, decided August 10, 1959, involving a claim for aggravation of an occupational disease other than silicosis, the appeal board denied compensation, holding that mere aggravation of an occupational disease other than silicosis was not compensatory, saying: 'We concur with the reasoning in the dissenting opinion of Mr. Moler [in the Leevale Collieries, Inc., case] and hold that the statute clearly excludes from compensability mere aggravation of disease other than silicosis. Therefore, the Commissioner is reversed and the claim is held to be non-compensable.'

In the instant proceeding the Occupational Diseases Medical Board found that 'The claimant has suffered an aggravation of a pre-existing chronic bronchitis, bronchiectasis, pulmonary fibrosis and emphysema'. The finding of the board that claimant suffered only an aggravation of a pre-existing disease or diseases was clearly supported by the evidence, and is not here questioned. Therefore, the only question now involved is the one raised by the action of the appeal board, whether the mere aggravation of a pre-existing disease other than silicosis entitles a claimant to benefits under the...