Sisk v. State Workmen's Compensation Commissioner, No. 12842

• Court: Supreme Court of West Virginia
• Writing for the Court: CAPLAN
• Citation: 153 W.Va. 461,170 S.E.2d 20
• Parties: Gideon F. SISK v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Winding Gulf Coals, Inc.
• Decision Date: 02 December 1969
• Docket Number: No. 12842

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170 S.E.2d 20 153 W.Va. 461 Gideon F. SISK
v.
STATE WORKMEN'S COMPENSATION COMMISSIONER and Winding Gulf Coals, Inc. No. 12842. Supreme Court of Appeals of West Virginia. Submitted Sept. 3, 1969.
Decided Oct. 14, 1969.
Rehearing Denied Dec. 2, 1969.

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Syllabus by the Court

1. 'Where, in the course of and arising out of his employment, an employee in good health and of strong physique, suffers physical injury which is followed by serious disabilities, competent physicians differing as to whether the disabilities are attributable to the injury, but only probable or conjectural reasons or causes are assigned by physicians in an effort to explain the disabilities on grounds other than the injury, the presumptions should be resolved in favor of the employee rather than against him.' Point 1, Syllabus, Pripich v. State Compensation Commissioner, 112 W.Va. 540 (166 S.E. 4).

2. 'It is the prerogative of the workmen's compensation commissioner, not that of the examining physician, to determine the amount of the award, if any, to which the claimant is entitled.' Point 2, Syllabus, Haines v. Workmen's Compensation Commissioner, 151 W.Va. 152 (150 S.E.2d 883).

3. '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.' Point 3, Syllabus, Haines v. Workmen's Compensation Commissioner, 151 W.Va.2d 152 (150 S.E.2d 883).

4. Where a reasonable appraisal of all the evidence shows that the appeal board did not take into consideration all of the factors to be considered in making a proper award, the board's ruling is plainly wrong and its order will be reversed on appeal and the case will be remanded with directions to enter an order consistent with all the evidence.

[153 W.Va. 462] D. Grove Moler, Mullens, for appellant.

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Higgins, Thrift & Mahan, Frank K. Mahan, Fayetteville, for appellees.

CAPLAN, Judge:

On this appeal the claimant, Gideon F. Sisk, a former employee of Winding Gulf Coals, Inc., seeks a reversal of a final order of the Workmen's Compensation Appeal Board dated April 30, 1969, wherein the board set aside an award of 10% Permanent partial disability and granted one in the amount of 20%. Basically it is the contention of the claimant that, in view of the evidence, the ruling of the board was clearly wrong in not granting him a total permanent disability award.

Gideon Sisk, while employed by Winding Gulf Coals, Inc., was injured during the course of said employment when on November 24, 1961 he was struck on the head by a piece of slate. The claimant filed a claim with the Workmen's Compensation Commissioner on November 27, 1961 and the doctor's report was filed on December 21, 1961, the latter noting, as a diagnosis of the injury, 'Severe contusion left frontal area above eye with laceration. Cerebral concussion mild.' Subsequently the Workmen's Compensation Commissioner entered an order holding the claim compensable and awarding the claimant $38.00 per week as payment of total temporary disability. After the claimant was examined by several physicians the commissioner, on July 16, 1962 entered an order stating that the claimant had suffered no permanent disability and that there would be no further award.

In 1963, upon timely receipt from the claimant's counsel of a report of Dr. I. B. Anderson and a request to further consider the claim, the commissioner by letter of March 6, 1963 held that a proper showing had been made, reopened the claim and referred the claimant to Dr. E. L. Gage for further examination.

Dr. Gage had examined Mr. Sisk on prior occasions at the instance of the commissioner. On one of those occasions he reported that the claimant's principal complaint [153 W.Va. 463] was 'blurring of his left eye, dizziness and headaches.' Tests were then made to determine whether the claimant had any post-traumatic cerebral syndrome. As a result of these tests Dr. Gage reported, 'Except for a slight increase in the cortical markings nothing abnormal is seen in the pneumoencephalogram.' He reported to the commissioner that the claimant was nervous and jittery and that following the air encephalogram 'he behaved more like a nervous individual than a true post-traumatic cerebral syndrome.'

Prior to the commissioner's July 16 ruling stating that there was a finding of no permanent disability, Dr. Gage again examined the claimant. On that occasion he reported to the commissioner that the patient continued to complain a great deal. An x-ray of the cervical spine and lumbosacral spine showed no bone injury. He ended the report by saying 'I could not find any evidence of organic residual from injury or disease to explain this patient's multiple complaints.'

Upon examining the claimant after the reopening of this claim, Dr. Gage reported that the claimant was still complaining of dizziness and headaches. He revealed that the claimant had told him that he had had a nervous breakdown and had been in St. Albans Sanitarium at Radford, Virginia. He reported that Mr. Sisk was distinctly nervous and jittery and more agitated than when he last saw him. He still could not find any organic residual or evidence to account for this patient's many complaints. On May 9, 1963 Dr. Gage stated that in his opinion 'this man certainly does not have more than a 10% Permanent partial disability as the result of his injury, this to include any influence which the injury may have had upon his psychological behavior or psychiatric status.'

By an order of the commissioner dated May 22, 1963 the claimant was awarded 10% Permanent partial disability. The

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claimant filed a protest and after further hearings the 10% Award was affirmed by an order of the [153 W.Va. 464] commissioner dated July 16, 1968. Upon appeal of this ruling to the Workmen's Compensation Appeal Board the said order of the commissioner was reversed and set aside and the claimant was granted a 20% Permanent partial disability award. It is from this order that the claimant now prosecutes this appeal.

It is the position of the claimant that he is totally and permanently disabled by reason of his psychiatric condition and that the Workmen's Compensation Appeal Board was clearly wrong in awarding only 20% Permanent partial disability. Therefore, contends the claimant, the order of said board should be set aside and an award of total permanent disability should be allowed. The employer, appellee, contends also that the board was clearly wrong in its ruling. It asserts that there is no evidence to support the additional 10% And that the ruling of the commissioner, awarding 10% Permanent partial disability, should be reinstated.

As noted in the opinion of the appeal board, the record here is 'voluminous and confusing.' This claimant received a compensable injury on November 24, 1961 and the order of the Workmen's Compensation Appeal Board purporting to finally decide this case was dated April 30, 1969. In this period of almost eight years Gideon Sisk has been examined and reexamined by numerous doctors. Many hearings have been held and multiple medical reports submitted. In these circumstances it is necessary to consider the overall evidence in order to make a proper determination of the percentage of permanent disability to which the claimant is entitled and to ultimately decide whether the board was right or wrong. If a reasonable appraisal...