Walk v. State Compensation Com'r, 10214

• Decision Date: 14 April 1950
• Docket Number: No. 10214,10214
• Citation: 58 S.E.2d 791,134 W.Va. 223
• Parties: WALK, v. STATE COMPENSATION COMMISSIONER et al.
• Court: West Virginia Supreme Court

Page 791

58 S.E.2d 791

134 W.Va. 223

WALK, v. STATE COMPENSATION COMMISSIONER et al.

No. 10214.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 11, 1950.

Decided April 4, 1950.

Dissenting Opinion April 14, 1950.

Syllabus by the Court.

1. An injury occurring in the course of and resulting from the employment of a claimant which permanently injured his genitals and, though causing no present loss in wages, impairs his physical efficiency to work to the extent that he is now unable to perform the same work with the same ease as before he was injured and is unable to do heavy work which he was able to do previous to his injury, is compensable under the Workmen's Compensation Law of this State.

2. An order of the Workmen's Compensation Appeal Board, affirming an award of compensation by the State Compensation Commissioner upon a percentage basis which is not supported by the evidence and, for that reason, is plainly wrong, will be reversed and set aside by this Court.

Dayton, Campbell & Love, Charleston, Charles M. Love, Charleston, Thomas W. Moses, Charleston, for appellant.

Hillis Townsend, Charleston, for appellee.

HAYMOND, Judge.

This is an appeal by the employer, Hutchinson Coal Company, from an order of the Workmen's Compensation Appeal Board of June 11, 1949, affirming an order of the State Compensation Commissioner of February 25, 1949, which awarded the claimant, William Walk, fifty per cent permanent partial disability for an injury which he sustained as an employee of the company on January 29, 1946. Upon the petition of the employer this appeal was granted by this Court on October 3, 1949.

The claimant was injured in the course and as a result of his employment while operating an electric drill in the mine of his employer in Logan County on January 29, 1946. An appliance on the machine caught in his clothing and severely lacerated and injured his genitals. The claim was promptly reported and the claimant was hospitalized and treated for his injury. He was discharged from the hospital on May 13, 1946, and returned to his regular work on June 1, 1946. For the period January 29, 1946, to June 1, 1946, when he resumed his regular work, the claimant was awarded and paid total temporary disability benefits.

The questions presented for decision upon this appeal are: (1) Whether the injury is compensable; and, if so, (2) whether the evidence justifies an award of fifty per cent permanent partial disability. No question is raised with respect to the award and the payment to the claimant of total temporary disability benefits between the date of his injury and the date he resumed work.

The claimant was examined by several doctors and the medical reports show that the injury has resulted in pain to the claimant in the normal use of his sex organs, the permanent loss of the mechanical ability to engage in sexual intercourse, and a psychological condition the ultimate effect of which is presently undertermined with respect to his capacity to work. The medical reports also indicate that the injury, which is permanent except the pain which in time will probably disappear, has resulted in no permanent disability which will prevent, or has prevented, in any substantial degree, the claimant from performing any kind of work.

The evidence produced at hearings held at Logan and Charleston in 1947 and 1948 is brief and consists of a statement of the earnings of the claimant from his regular employment from June 1, 1946, when he resumed his former work, to June 24, 1947; a stipulation of facts agreed to by the representative of the claimant and the attorney for the employer; and the testimony of a doctor who examined but did not treat the claimant. The statement shows that the claimant worked regularly upon his return to the same employment after his injury, that he earned $4,538.46 during the period June 1, 1946, to June 24, 1947, or $4,192.92 for one year's work from June 1, 1946, and indicates that his earning capacity had not been impaired during that time. The stipulation constituted proof that the record of work and earnings by the claimant represented his share of the labor performed by a group of four or five men in loading coal at the mine where he worked as a member of the group; that, because of his injury, the other men with whom he worked performed most of the hard labor; that he is unable to drag rails or do any heavy work, but that he does shovel coal when he is on his knees. The testimony of the doctor was that the claimant, as a result of the injury, had lost the ability to engage in the sexual act but there was no disability with respect to his capacity to work and earn a living. On cross-examination the doctor did not give any positive answer relative to the effect of the injury upon the mental attitude of the claimant. To the only question asked on that subject: 'Doctor, does an injury such as he suffered causing such a result as you find have any effect upon his mental attitude?', the doctor replied: 'That is a hard question to answer correctly. Some men it may, others it may not.'

As grounds for reversal of the orders of the Workmen's Compensation Appeal Board and the State Compensation Commissioner awarding compensation to the claimant, the employer insists that the injury is not compensable but that if it is compensable the award of fifty per cent permanent partial disability is not supported by any evidence disclosed by the record.

In support of the first contention of the employer it is asserted that inasmuch as no loss of earning capacity, present or future, has been established, and the injury is not specifically provided for in any schedule set forth in Code, 23-4-6, the claimant is not entitled to an award of compensation for any permanent disability. Though the principal object of workmen's compensation statutes is to compensate an injured employee for loss of earning capacity, this Court has said that the purpose of the workmen's compensation statute of this State is to compensate an employee for impairment of his physical efficiency, Ashworth v. State Compensation Commissioner, 117 W.Va. 73, 183 S.E. 912; and that the language of the statute grants compensation for disability or impairment of the physical efficiency of an employee. Johnson v. State Compensation Commissioner, 109 W.Va. 316, 154 S.E. 766. Though loss or impairment of earning capacity is, of course, an important element in the determination of the compensability of an injury, neither can properly be held to be the sole consideration upon which such compensability depends. In a number of cases this Court has recognized the rule that the right of an injured employee to compensation on a permanent disability basis is not defeated by his return to work and his receipt of wages even though his earnings, after such injury, may equal those previously received by him. See Blosser v. State Compensation Commissioner, W.Va., 51 S.E.2d 71; Burgess v. State Compensation Commissioner, 121 W.Va. 571, 5 S.E.2d 804; Gay Coal & Coke Company v. Workmen's Compensation Commissioner, 121 W.Va. 200, 2 S.E.2d 265; Johnson v. State Compensation Commissioner, 109 W.Va. 316, 154 S.E. 766.

Compensation is intended to take the place of ability to work and ability to work should always be considered in fixing compensation. Burgess v. State Compensation Commissioner, 121 W.Va. 571, 5 S.E.2d 804. 'The terms 'disability' and 'incapacity', as used in workmen's compensation statutes, seem to be regarded as practically synonymous. The term 'disability', as so used, ordinarily means loss or impairment of earning power, and has been held not to mean loss of a member. However, as used in some statutes, the word 'disability' is not restricted to mere loss of earning power; and the mere fact that an injured workman is employed at the same work and at the same wages as before the injury will not disentitle him to compensation under the act, if his physical efficiency has been substantially impaired.' 58 Am.Jur., Workmen's Compensation, Section 282. See also 71 C.J. 814; Quillen v. Wichita Gas Company, 128 Kan. 9, 275 P. 1075; Sauvain v. Battelle, 100 Kan. 468, 164 P. 1086; Woodcock v. Dodge Bros., 213 Mich. 233, 181 N.W. 976, 17 A.L.R. 203; Rice v. Denny Roll & Panel Company, 199 N.C. 154, 154 S.E. 69; Burbage v. Lee, 87 N.J.L. 36, 93 A. 859. Receipt of the same or larger wages after his injury does not necessarily defeat the right of an injured employee to compensation under the workmen's compensation statute of this State. Notwithstanding the receipt of such wages the capacity to earn of the injured workman may be disminished; and under various statutes it has been held that his incapacity is not to be measured solely by the wages or the earnings received by him after his injury. 58 Am.Jur., Workmen's Compensation, Section 284.

Though the evidence consisting of the medical reports and the testimony of a doctor indicate no impairment of the ability of the claimant to work and earn a living, the evidence in the form of the stipulation is that he can not perform heavy work such as moving rails, which he was able to do before his injury. It also indicates that he is required, in shoveling coal, to assume the irregular position of being on his knees and that he is unable, because of the injury, to work with the same ease and competency with which he worked before he was injured in discharging that task. The effect of the finding of the commissioner in awarding compensation, affirmed by the Workmen's Compensation Appeal Board, is that the injury sustained by the claimant has substantially impaired his physical efficiency to work.

The appeal board is a fact finding agency and its findings will not be disturbed by this Court unless they are clearly wrong. Burgess v. State Compensation Commissioner, 121 W.Va. 571, 5 S.E.2d 804; Moore v. Workmen's Compensation Appeal Board, 118 W.Va. 578, 191 S.E. 292; Rasmus v. Workmen's Compensation...