Partlow v. Workmen's Compensation Commissioner

146 S.E.2d 833, 150 W. Va. 416, 1966 W. Va. LEXIS 162
CourtWest Virginia Supreme Court
DecidedFebruary 15, 1966
Docket12531
StatusPublished
Cited by21 cases

This text of 146 S.E.2d 833 (Partlow v. Workmen's Compensation Commissioner) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Partlow v. Workmen's Compensation Commissioner, 146 S.E.2d 833, 150 W. Va. 416, 1966 W. Va. LEXIS 162 (W. Va. 1966).

Opinion

Raymond, Judge:

On this appeal the employer, Owens-Illinois Glass Company, a corporation, seeks reversal of the final order of the Workmen’s Compensation Appeal Board entered August 25, 1965 which affirmed the final order of the Workmen’s Compensation Director, now Commissioner, entered April 5, 1965, which held compensable the claim of its employee, Charles R. Partlow, and granted him, as claimant, compensation on the basis of a total temporary disability which-resulted from an injury sustained by the claimant on November 11, 1962, while employed by the Owens-Illinois Glass Company as a machine operator at its plant" in Huntington, West Virginia.

About 5:20 o’clock in the morning of November 11, 1962,-the claimant fell on a level floor of the plant. The evidence contains no explanation of the cause of this fall which resulted in a head injury consisting of a laceration of the left side of his scalp and, since the injury, the claimant has suffered from a disability diagnosed as a depressive reaction condition which has prevented him from returning to his work. The record does not disclose how the claimant’s fall *418 occurred. There is no showing that any blow was struck or that he slipped, or tripped or stumbled but immediately after the fall he was found lying on the floor during an epileptic fit or seizure. Prior to his injury he had suffered from a brain lesion and epilepsy and though there is some indication that he had experienced falls from previous epileptic seizures, there is no showing that any such occurrences interfered with the regularity of his employment for a period of approximately ten years before he fell during the early morning hours of November 11, 1962.

By order entered May 14,1963, the commissioner affirmed his ruling of April 22, 1963, insofar as such ruling held the condition of the claimant’s diagnosis as “head injury, laceration of left side of scalp” to be compensable but also held that the condition of the claimant’s diagnosis as “depressive reaction” was unrelated to his injury of November 11, 1962, and that such condition was not compensable and denied compensation for all medical and hospital bills and for such depressive reaction.

Within thirty days from the entry of the foregoing order the claimant protested the ruling of the commissioner as set forth in that order “that the condition diagnosed as ‘depressive reaction’ is unrelated to the aforesaid injury of November 11, 1962, and is hereby determined not to be compensable and it is therefore, ordered and directed that all medical and hospital bills and compensation related solely thereto be rejected; all of which is accordingly so ordered.” The employer did not protest or appeal from the ruling of the commissioner holding compensable the head injury sustained by the claimant as a result of the fall.

By subsequent final order entered April 5, 1965, the director sustained the protest of the claimant to the ruling of May 14, 1963 that the condition of the claimant diagnosed as “depressive reaction” was not compensable and held such depressive reaction to be compensable, that all proper medical and hospital bills be honored and paid, and that the claimant be granted compensation upon a total temporary disability basis for lost time, if any, resulting from such condition. By the same order the direotor affirmed his *419 ruling of May 14,1963 insofar as it determined the condition of the claimant diagnosed as “head injury, laceration of left side of scalp” to be compensable. From the final order of April 5, 1965, the employer appealed to the Workmen’s Compensation Appeal Board which, as previously indicated, affirmed that order by its final order of August 25, 1965.

The principal ground on which the employer relies for reversal upon this appeal is that the claimant has failed to show by evidence that his fall on November 11,1962, though occurring in the course of his employment, resulted from his employment and that for that reason the employer can not be held responsible for the disability arising from the depressive reaction condition of the claimant even if such condition was aggravated by the fall.

In support of the statutory requirement that the injury, to be compensable under Section 1, Article 4, Chapter 23, Code, 1931, as amended, must have been received by the claimant in the course of and resulting from his employment, the employer cites numerous cases of this Court which hold that the injury must not only occur in the course of the employment but must result from such employment. Among the cited decisions of this Court in support of that contention are Deverick v. State Compensation Director, 150 W. Va. 145, 144 S. E. 2d 498; Damron v. State Compensation Commissioner, 109 W. Va. 343, 155 S. E. 119; Martin v. State Compensation Commission, 107 W. Va. 583, 149 S. E. 824; and Archibald v. Compensation Commissioner, 77 W. Va. 448, 87 S. E. 791, L.R.A. 1916D, 1013. Those cases and numerous other decisions of this Court clearly impose that requirement; but in this proceeding and upon this appeal the employer can not successfully rely upon and benefit from those decisions for the reason that by the final order of the commissioner entered May 14, 1963, which was not protested or appealed by the employer, and has become final and unappealable, the commissioner, in holding the head injury of the claimant which resulted from his fall to be compensable necessarily held that the fall which caused such injury and which is alleged to have caused or contributed to the depressive reaction condition of the *420 claimant resulted from his employment. This Court has held in numerous recent cases that the commissioner is without authority or jurisdiction to vacate, set aside or modify a final order made by him, except in the instances specifically provided by statute, and that the'only exception to that ruling would be a determination by the commissioner upon proper proof that the final order was made or procured through fraud or mistake. Stewart v. State Compensation Director, 150 W. Va. 103, 144 S. E. 2d 327; Burr v. State Compensation Commissioner, 148 W. Va. 17, 132 S. E. 2d 636; Dismond v. State Compensation Commissioner, 148 W. Va. 26, 132 S. E. 2d 743; Collins v. State Compensation Commissioner, 145 W. Va. 774, 117 S. E. 2d 313; Cottrell v. State Compensation Commissioner, 145 W. Va. 336, 115 S. E. 2d 153. In Stewart v. State Compensation Director, 150 W. Va. 103, 144 S. E. 2d 327, this Court held in point 1 of the syllabus that “The State Compensation Commissioner has no power or jurisdiction to vacate, set aside or modify a final order made by him, except in the instances specifically provided by statute.” The syllabus in Collins v. State Compensation Commissioner, 145 W. Va. 774, 117 S. E. 2d 313, is identical with point 1 of the syllabus in the Stewart case; and in the opinion in the Collins

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Cite This Page — Counsel Stack

Bluebook (online)
146 S.E.2d 833, 150 W. Va. 416, 1966 W. Va. LEXIS 162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/partlow-v-workmens-compensation-commissioner-wva-1966.