Petrey v. State Workmen's Compensation Commissioner

181 S.E.2d 26, 155 W. Va. 47, 1971 W. Va. LEXIS 170
CourtWest Virginia Supreme Court
DecidedMay 11, 1971
DocketNo. 13053
StatusPublished

This text of 181 S.E.2d 26 (Petrey v. State 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
Petrey v. State Workmen's Compensation Commissioner, 181 S.E.2d 26, 155 W. Va. 47, 1971 W. Va. LEXIS 170 (W. Va. 1971).

Opinion

Calhoun, Judge:

This case is before the Court upon an appeal by the employer, Bishop Coal Company, from an order of the Workmen’s Compensation Appeal Board, entered on November 25, 1970, affirming an order entered by the State Workmen’s Compensation Commissioner on April 15, 1970, granting the claimant, Henry Petrey, an award of $1,000 for first stage silicosis in addition to a prior award of total permanent disability benefits.

The facts of the case are undisputed. The primary question presented for decision is whether the commissioner was justified in granting the claimant an award of benefits in the sum of $1,000 for silicosis in the first stage based upon the medical evidence presented.

The claimant was employed by Bishop Coal Company as a mining motorman from August 22, 1962, until he sustained a compensable injury on July 17, 1967. He was granted a total permanent disability award for the injury thus sustained.

On August 16, 1969, the claimant filed a claim for silicosis benefits. By an order entered on December 5, 1969, the commissioner made certain nonmedical findings and referred the claim to the Occupational Pneumoco-niosis Board for review and evaluation. No protest to this order was made by either party. The board, after examining the claimant, found and reported that he was “suffering from an advanced stage of silicosis with 20% impairment of his capacity to work due to the disease.” The only medical evidence presented in relation to the claim for silicosis benefits was the report of the members of the Occupational Pneumoconiosis Board.

The findings of the board reveal that the X-rays made of the claimant show “an occasional small fine granular nodule scattered throughout the lung fields with increased peribronchial fibrosis throughout.”

In addition to its clinical examination and X-ray findings, the board also considered the results of the [49]*49pulmonary function studies. These studies revealed that the claimant’s maximum breathing capacity, the measurement of the amount of air an individual can move at maximum effort in a given amount of time, represented 93 percent of the predicted normal for the claimant. Moreover, these pulmonary function studies disclosed that the claimant’s vital capacity, the amount of air the lungs will hold at maximum inspiration, was 78 percent of predicted normal.

According to the board’s findings, the claimant’s medical history and medical records revealed that the claimant had been employed for about thirty years, “in an atmosphere containing silicon dioxide in sufficient quantity to have produced the disease silicosis or to1 have perceptibly aggravated the pre-existent silicosis and this harmful exposure continued up to within the statutory period of time”; that the claimant had been short of breath about 20 years; that he suffers from occasional wheezing and bilateral anterior chest pain; and that he has a mild chronic cough.

No objections to the report and findings of the Occupational Pneumoconiosis Board were filed. By an order entered on April 15, 1970, the commissioner ordered and directed “that the * * * findings of the Occupational Pneumoconiosis Board be and the same are hereby set aside, vacated and annulled, and the claimant be and he hereby is granted compensation in the amount of $1,000 for silicosis in the first stage, * *

Upon an appeal by the employer to the Workmen’s Compensation Appeal Board, the appeal board affirmed the action taken by the commissioner. Despite certain factual inaccuracies stated in the appeal board’s written opinion, the appeal board concluded that, based upon the evidence, the commissioner was “within his right” in granting the claimant a $1,000 award for silicosis in the first stage.

Counsel for the appellant, Bishop Coal Company, contends that the order of the commissioner and the findings [50]*50of the appeal board are not supported by the evidence; that the undisputed medical evidence shows clearly that the claimant suffers from an advanced stage of silicosis; and that neither the commissioner nor the appeal board can arbitrarily reduce the findings of the Occupational Pneumoconiosis Board from “an advanced stage of silicosis” and a finding of twenty percent disability to an award of first stage silicosis benefits so that a claimant, who has previously been granted a total permanent disability award, shall be entitled to an additional $1,000 in conformity with the second point of the syllabus of Cummins v. State Workmen’s Compensation Commissioner, 152 W.Va. 781, 166 S.E.2d 562.

Counsel for the claimant maintains that the findings of the Occupational Pneumoconiosis Board are “minimal” and show that the claimant suffers only from silicosis in the first stage; that the appeal board acted properly in affirming the action of the commissioner in granting an award for first stage silicosis; and that the claimant is entitled to receive an award of first stage silicosis benefits in addition to the total permanent disability award previously granted.

In Cummins v. State Workmen’s Compensation Commissioner, 152 W.Va. 781, 166 S.E.2d 562, this Court held that a claimant who seeks compensation for silicosis and who has previously been awarded compensation for total permanent disability resulting from injury may also be awarded compensation for silicosis in the first stage. The Cummins case recognized an exception to the general rule that a claimant can be awarded no benefits in addition to or in excess of an award of benefits for total permanent disability. The exception relates only to an additional award of benefits for silicosis in the first stage. The question to be decided on this appeal, therefore, is whether the medical evidence supports a finding by the appeal board of silicosis in the first stage.

It is established by many prior decisions of this Court that the Workmen’s Compensation Appeal Board is a [51]*51fact-finding body and that its decisions based upon questions of fact will not be reversed or set aside on appeal unless clearly wrong. Ward v. State Workmen’s Compensation Commissioner, 154 W.Va. 454, 176 S.E.2d 592; Pennington v. State Workmen’s Compensation Commissioner, 154 W.Va. 378, 175 S.E.2d 440; Burr v. State Compensation Commissioner, 148 W.Va. 17, pt. 4 syl., 132 S.E.2d 636. It is also a well-established principle of law that an order of the appeal board which is not supported by the evidence and which for that reason is clearly wrong, will be reversed by this Court on appeal. Dunlap v. State Workmen’s Compensation Commissioner, 154 W.Va. 539, 177 S.E.2d 35; Staubs v. State Workmen’s Compensation Commissioner, 153 W.Va. 337, 168 S.E.2d 730; Deverick v. State Compensation Director, 150 W.Va. 145, pt.

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Related

Burr v. State Compensation Commissioner
132 S.E.2d 636 (West Virginia Supreme Court, 1963)
Haines v. Workmen's Compensation Commissioner
150 S.E.2d 883 (West Virginia Supreme Court, 1966)
Ward v. State Workmen's Compensation Commissioner
176 S.E.2d 592 (West Virginia Supreme Court, 1970)
Deverick v. State Compensation Director
144 S.E.2d 498 (West Virginia Supreme Court, 1965)
Sisk v. State Workmen's Compensation Commissioner
170 S.E.2d 20 (West Virginia Supreme Court, 1969)
Ferguson v. State Workmen's Compensation Commissioner
163 S.E.2d 465 (West Virginia Supreme Court, 1968)
Cummins v. State Workmen's Compensation Commissioner
166 S.E.2d 562 (West Virginia Supreme Court, 1969)
Staubs v. State Workmen's Compensation Commissioner
168 S.E.2d 730 (West Virginia Supreme Court, 1969)
Pennington v. State Workmen's Compensation Commissioner
175 S.E.2d 440 (West Virginia Supreme Court, 1970)
Dunlap v. State Workmen's Compensation Commissioner
177 S.E.2d 35 (West Virginia Supreme Court, 1970)

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Bluebook (online)
181 S.E.2d 26, 155 W. Va. 47, 1971 W. Va. LEXIS 170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petrey-v-state-workmens-compensation-commissioner-wva-1971.