Szalay v. State Comp. Comm'r.

• Decision Date: 27 February 1945
• Docket Number: (No. 9686)
• Court: West Virginia Supreme Court
• Parties: Dick Szalay v. State Compensation Commissioner et al.

127 W.Va. 449

Dick Szalay

v.State Compensation Commissioner et al.

(No. 9686)

Supreme Court of Appeals of West Virginia.

Submitted January 30, 1945.

Decided February 27, 1945.

Workmen's Compensation

"The Workmen's Compensation Appeal Board is a factfinding body, and its rulings on questions of fact will not be set aside by this Court unless they appear to be clearly wrong." Syl. 1, Burgess v. State Compensation Commissioner, 121 W. Va. 571.

Appeal from Workmen's Compensation Appeal Board.

Proceeding under the Workmen's Compensation Act by Dick Szalay, claimant, opposed by the New River & Pocahontas Consolidated Coal Company, employer. From an order of the Workmen's Compensation Appeal Board, setting aside an order of the State Compensation Commissioner denying compensation, the employer appeals.

Afirmed.

Strother & Christie, for appellant. Patrick J. Flanagan, for appellee.

Szalay v. Comp. Com'r. [Feb. 1945

Riley, Judge:

New River and Pocahontas Consolidated Coal Company appeals from an order of the Workmen's Compensation Appeal Board, which set aside an order of the commissioner denying claimant, Dick Szalay, compensation for an inguinal hernia on the ground that it was not sustained in the course of and resulting from claimant's employment.

The record discloses that claimant had an inguinal hernia which was successfully reduced by an operation on January 7, 1944, at Welch Emergency Hospital, at Welch, West Virginia. The sole issue before us is whether the requirements of Code, 23-4-7, have been met. The statute reads, in part, as follows:

"In all claims for compensation for hernia resulting from personal injury received in the course of and resulting from the employee's employment, it must be definitely proven to the satisfaction of the commissioner: First, that there was an injury resulting in hernia; second, that the hernia appeared suddenly; third, that it was accompanied by pain; fourth, that the hernia immediately followed an injury; fifth, that the hernia did not exist prior to the injury for which compensation is claimed. * * *."

The claim is based largely upon claimant's own testimony, together with that of his wife and one Potter, a coal loader. Claimant is a coal loader, fifty-two years of age, speaks broken English, and has been in the company's employ for several years. According to the record, the injury, if any, was suffered on Thursday, December 2, 1943, though claimant repeatedly referred to December 4 as the date. Evidently, claimant thought December 4, 1943, was on Thursday, and this resulted in his confusion as to the date of his alleged injury.

Claimant testified that after cleaning his place, he started at the direction of the mine foreman to lay track; that about one o'clock in the afternoon, while pulling a thirty-foot steel rail from the adjoining room into the place where he was working, he felt a little pain in his right side; that he continued in spite of the pain until the track was completed about two o'clock; and that the pain became more severe as he walked home. When he bathed that evening, he testified he noticed a swelling about the size of a silver dollar, which he at the time called to his wife's attention. According to claimant's wife, he reported having "hurt his side", and that "there was some little knots came out on his side", and that she told him they were "kernels and would disappear". She also testified that he had never complained of that condition prior to that time.

Claimant remained at home on Friday and Saturday, December 3 and 4, and returned to work on the 6th. At that time, or a few days later, according to the employer's evidence, he complained to the assistant mine foreman that his side was hurting and was advised to see a physician. On December 17, he stopped work because of a cold, and on December 20 a physician who had been called to his home to minister to his wife, examined him and advised him that he had a hernia, and should report as soon as he was recovered from his cold to have it corrected. According to the record, he so reported.

Claimant was given a routine examination by the company physician during the latter part of October, 1943, and found to be "O. K." P. P. Kerr, employer's general superintendent, filed a statement with the commissioner in which he stated that "No existing hernia" was disclosed in any examination when claimant was employed or later. The hernia was reduced by operation on January 7, 1944, by Dr. J. S. Hutchinson of the Welch Emergency Hospital. Dr. Hutchinson testified that he had examined claimant on the day before the operation and found "an inguinal hernia, right", which, in view of conditions revealed by operation, was "apparently of recent origin." A...