Rushman v. Lewis
| Decision Date | 02 March 1984 |
| Docket Number | No. 15996,15996 |
| Citation | 173 W.Va. 149,313 S.E.2d 426 |
| Court | West Virginia Supreme Court |
| Parties | Thomas E. RUSHMAN v. Gretchen O. LEWIS, Commissioner, Workers' Compensation Fund, and Lewis Marx Toy Factory. |
Syllabus by the Court
"This Court will not reverse a finding of fact made by the Workmen's Compensation Appeal Board unless it appears from the proof upon which the appeal board acted that the finding is plainly wrong." Syl. pt. 2, Jordan v. State Workmen's Compensation Commissioner, 156 W.Va. 159, 191 S.E.2d 497 (1972), quoting, Syllabus, Dunlap v. State Workmen's Compensation Commissioner, 152 W.Va. 359, 163 S.E.2d 605 (1968).
Schrader, Stamp, Byrd, Byrum & Companion, Barbara L. Baxter, Wheeling, for appellant.
Frank W. Helvey, Jr., Workmen's Compensation Fund, Charleston, for appellee.
This workers' compensation case involving Thomas E. Rushman's claim for dependency benefits is before the Court upon a writ of certiorari. The State Workers' Compensation Commissioner has provided a complete record of all proceedings below. After mature consideration of all matters of record, the writ is discharged.
Bertha Rushman, who had been employed for twenty-eight years at Lewis Marx Toy Factory, fell while at work in August of 1979. Coworkers found her lying on the floor unconscious with no vital signs. She was resuscitated but remained in a coma and never regained consciousness.
Thomas Rushman filed a timely claim for dependent's benefits. Based on the autopsy report, discharge summary, death certificate, and other medical evidence, the Commissioner denied the claim on January 3, 1980. Rushman did not protest the Commissioner's ruling and it became a final adjudication of the claim.
Rushman, acting pro se, eventually came here seeking relief. The evidence indicates that the contributing cause of the death was a myocardial infarction that occurred at work. The decedent also sustained a head trauma, apparently when she collapsed. The evidence does clearly indicate that the death did not result from the head injury. From all that appears of record, the decedent's death was not due to either a job-related injury or disease resulting from employment. Evidence that the heart attack occurred at work is not, standing alone, sufficient proof to support an award. See, e.g., Sowder v. State Workmen's Compensation Commissioner, 155 W.Va. 889, 189 S.E.2d 674 (1972); Martin v. State Workmen's Compensation Commissioner, 107 W.Va. 583, 149 S.E. 824 (1929). Had Rushman protested the Commissioner's ruling and the case came to us...
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