Vandall v. State Comp. Comm'r (Rehearing Denied ), (No. 6966)

• Court: Supreme Court of West Virginia
• Writing for the Court: HATCHER, J.
• Citation: 110 W.Va. 61
• Parties: James Vandall v. State Compensation Commissioner(Rehearing denied)
• Docket Number: (No. 6966)
• Decision Date: 03 February 1931

110 W.Va. 61

James Vandall
v.
State Compensation Commissioner
(Rehearing denied
)

(No. 6966)

Supreme Court of Appeals of West Virginia.

Submitted January 27, 1931.
Decided February 3, 1931.
April 3, 1931.

[110 W.Va. 61]

1. Workmen's Compensation

The workmen's compensation law, being remedial should be liberally construed.

2. Mandamus

The prayer of a petition in a mandamus proceeding may be amended to ask for the relief which the facts warrant.

Writ of Mandamus by James Vandall against State Compensation Commissioner to compel payment of 50% disability for loss of hand.

Writ will issue.

England & Ritchie, for relator.

Howard B. Lee, Attorney General, and R. Dennis Steed, Assistant Attorney General, for respondent.

Hatcher, Judge:

The petitioner was injured while employed by a subscriber to the workmen's compensation fund. The injury necessitated amputation of the four fingers and the palm of a hand. He was given an award of 32% disability by the State Compensation Commissioner. The petitioner claims he is entitled to an award of 50% disability and seeks, in this proceeding, a mandamus to require the commissioner to give him a hearing on the quantum of the award.

Section 31, chapter 68, Acts of 1925, which applies to the disability in this case, is as follows: "If the injury results in the total loss by severance of any of the members named in this paragraph, the percentage of disability will be determined in accordance with the following table * * *. The loss of four fingers shall be considered a thirty-two per centum disability. * * * The loss of hand shall be considered a 50 per centum disability." The commissioner takes the

[110 W.Va. 62]

position that as the thumb was not severed there is no "total loss by severance'' of the hand, and therefore the petitioner is not entitled to the disability (50%) provided for a loss of the entire hand. He further points to the fact that the statute allows a disability of 20% for the loss of the thumb alone, which shows that the legislature placed a material value on the thumb. That value is of course based on the part the thumb plays in connection with the rest of the hand in gripping or holding objects. In this case the entire palm being severed, nothing remains of the hand for...