Evans v. State Compensation Director , 150 W. Va. 161 ( 1965 )

Berry, Judge:

This is an appeal by the claimant Virgie M. Evans, the widow of Jess B. Evans, from an order of the Workmen’s Compensation Appeal Board dated May 10, 1965, affirming the ruling of the Workmen’s Compensation Director which denied compensation benefits to the claimant on the ground that her husband’s death was not due to an injury received in the course of and as a result of his employment. The claimant’s decedent, Jess B. Evans, died January 2, 1963. Application for benefits under the Workmen’s Compensation Law was filed by the claimant on August 21, 1963, alleging that the decedent’s death was due to an injury sustained by him on May 7, 1962, while he was working for the employer, Minden Sewell Coal Company. On September 12,1963, the Workmen’s Compensation Director rejected the claim on the ground that her husband’s death was not due to an injury received in the course of and as a result of his employment, to which ruling a protest was filed and full hearings held, after which the Director on December 7, 1964, affirmed the former ruling which resulted in this appeal.

The evidence taken at the hearings held in connection with this claim is to the effect that the claimant’s decedent was apparently working alone as a tipple mechanic at the mine of the employer on May 7, 1962, and after returning to his home from work on that day he told his wife that he had fallen while at work and injured the left side of his back just above the waist. His wife testified that after he told her about falling and injuring himself he showed her a red bruise mark on his back in the area indicated above. She testified that he appeared to be nervous and in pain, that he took some aspirin and bufferin and went to bed; that at the request of her husband she called his foreman, Mr. Clifford Davis, and after getting Mr. Davis on the telephone she heard her husband tell him that he had been injured that day and probably would not be able to work the next day. (Mr. Davis did not testify at the hearings.) The claimant’s decedent remained at home on May 8, 1962, but returned to work on May 9, 1962. William Harmon, a fellow-employee, testified that when he, Harmon, returned to work around May 14, 1962, after being confined to a hospital, claimant’s decedent told him that he had fallen and injured his back while working and that he complained of his back hurting him at that time. Mrs. Evans stated that about a week or ten days after the injury her deceased husband was still having pain in his back which was causing him so much trouble that he went to see Dr. J. B. Thompson, the family doctor. Dr. Thompson testified that when the claimant’s decedent came to see him for treatment he gave him a history that he had fallen on an angle iron while working for the employer on May 7, 1962. He stated that he observed no bruises on the body of claimant’s decedent at the time he examined him, although he complained of soreness on the left side of his back and that he treated him for prostate trouble. This was done because he had treated him before for the same trouble and by virtue of his complaints he continued the same treatment. The claimant’s decedent visited this doctor several times during May and June, 1962, and the treatment remained the same. On June 7, 1962, Dr. Thompson found blood in the urine. The claimant’s decedent was referred to Dr. Ray M. Bobbitt, Huntington, West Virginia, whom he visited on June 8, 1962. Dr. Bobbitt, after examining Mr. Evans, reported to Dr. Thompson that he felt he might have a low grade nephritis, but that it remained to be proved. Dr. Bobbitt recommended that he be hospitalized although this was not done because claimant’s decedent was anxious to accumulate sufficient time in order to qualify for his pension, which was accomplished the latter part of June, 1962.

Claimant’s decedent was admitted to the Beckley Memorial Hospital on August 3, 1962, where he was examined by Dr. W. A. Laqueur who diagnosed his trouble as nephrosis syndrome. He was released from this hospital on September 29, 1962, was readmitted on November 19, 1962 and remained until November 30, 1962, was readmitted December 11, 1962 and discharged on December 24, in order to spend Christmas at home. On January 2, 1963 he entered the hospital again and died a few hours after his admission. Dr. Laqueur performed an autopsy which revealed that pros-tatitis for which he had originally been treated had no connection with his illness and death. The examination of claimant’s decedent while he was a patient in the Beck-ley Memorial Hospital was diagnosed as nephrotic syndrome and he was treated for nephrosis. The autopsy revealed that he had a renal thrombosis which resulted in nephrosis. It was Dr. Laqueur’s opinion that trauma or injury to the back would case the renal thrombosis resulting in nephrosis which could be clinically diagnosed. However, the thrombosis of the renal vein could not be diagnosed. The immediate cause of the death of claimant’s decedent was “bron-chopneumonia, diffuse, bilateral, upper lobes, staphylococ-cic”. The treatment given to the claimant’s decedent for nephrosis was very heavy doses of cortisone which did relieve his condition and prolonged his life. However, the heavy doses of cortisone made him immune to antibiotics and as a result thereof he developed a staph infection and pneumonia which was the immediate cause of his death. Dr. Laqueur’s testimony clearly indicates that had not this treatment been administered the claimant’s decedent would have died much sooner from nephrosis developed from the renal thrombosis caused by an injury to his lower back. Dr. Laqueur’s findings were supported by Dr. Peter Ladewig, a pathologist from Charleston, to whom the employer referred the medical record in this case. The last paragraph of Dr. Ladewig’s report, which was filed in this case and made a part of the record, reads as follows:

“In summary, it is my opinion that Jess Evans’ illness was triggered by the mine injury leading to a thrombosis of the renal vein which in turn caused a relentlessly progressing nephrotic syndrome treated, among others, by long-standing steroid administration; whereupon death ensued as a complication of both the original illness and its treatment.”

It is the contention of the claimant that the Workmen’s Compensation Appeal Board erred in its finding that this claim was not compensable and thereby affirming the Workmen’s Compensation Director’s ruling.

It is the contention of the employer that the claimant has failed to prove by competent evidence: (1) That her deceased husband received an injury in the course of and as a result of his employment, and therefore the claim is not compensable; and (2) that the claimant has also failed to prove that the disability was continuous from the date of the alleged injury until the date of his death, and therefore the claim is not compensable under the provisions of Code, 23-4-10, as amended.

It is the employer’s position that there is no evidence other than “hearsay” in the record of this case to support the allegation that claimant’s decedent suffered an injury while employed by the employer on May 7,1962.

The recent case of Helen E. Hoff v. State Compensation Commissioner, 148 W. Va. 33, 132 S. E. 2d 772, is relied on to support this contention. In the Hoff case the only evidence supporting the claimant’s contention, that she was entitled to compensation as a result of injury was the statement of a deceased doctor contained in the file of the Commissioner. He did not testify at any hearing and was not subjected to cross examination. This ex parte statement, even though it was made at the direction of the Commissioner under authority of Code, 23-4-8, as amended, was hearsay evidence, and this Court held that an award of compensation could not be made on hearsay evidence alone. However, there is much more evidence in the case at bar to establish the fact that the claimant’s recedent received a compensable injury than was presented in the Hoff case.

It is true that there is considerable hearsay evidence in the hearings held in connection with this claim but at no time was there any objection interposed by the employer to any of this testimony, and the reports of Doctors Laqu-eur, Ladewig and Bobbitt were submitted into evidence and made a part of the record by agreement. It is generally held that if incompetent or hearsay evidence is admitted without objection it may be considered as evidence in the case and given such weight as is warranted, even if the trial is before a jury. Magruder v. Hagen-Ratcliff & Co., 131 W. Va. 679, 50 S. E. 2d 488; Gutshall v. Hamilton, et al., 134 Va. 416, 114 S. E. 595; Newberry v. Watts, 116 Va. 730, 82 S. E. 703.

In addition to the hearsay evidence presented in the instant case there is also direct and circumstantial evidence as well as evidence introduced under the exceptions to the hearsay rule. The testimony of the claimant that she saw a bruise on the body of her husband which he said he had received in a fall while at work for the employer, her testimony with regard to the telephone call to her deceased husband’s foreman and the reporting of his injury over the telephone all support and bolster the other hearsay evidence in this case. The testimony of the family doctor with regard to his medical conclusions reached or based on the history given to him by the claimant’s decedent with regard to his subjective symptoms is an exception to the hearsay rule. Sutherland v. Kroger Co., 144 W. Va. 673, 110 S. E. 2d 716; Foulkrod V. Standard Accident Ins. Co., 343 Pa. 505, 23 A. 2d 430, 67 A.L.R. III, page 15.

The failure on the part of the employer to have the foreman of the claimant’s decedent testify with regard to the telephone conversation, in which was reported the injury received in the course of and as a result of his employment, justifies a presumption that this evidence is true. Arbogast v. Shields, 123 W. Va. 167, 14 S. E. 2d 4.

The fact that no one saw claimant’s decedent fall and injure his back is not important. Many injuries have been held compensable where there have been no eye witnesses to an accident causing an injury. Machala v. State Compensation Commissioner, 109 W. Va. 413, 155 S. E. 169; Gulf Oil Corp. v. McManigal, 49 F. Supp. 75.

The Machala case cited above is almost identical to the case presented here. The question involved in that case was whether the claimant’s decedent received an injury in the course of and as a result of his employment. No one saw the alleged accident and no person knew about it except from the decedent’s own statements. The claimant testified that her husband told her when he came home that he had been hit by a stoking bar striking him in the stomach before he quit work. The doctor who attended him testified to the effect that claimant’s decedent had informed him of his injury on his first visit. One of the claimant’s fellow-employees testified that he had informed the boss of claimant’s decedent about the injury the day following the accident. This Court in that case cited the statute which says that the Compensation Commissioner shall not be bound by the usual common law or statutory rules of evidence, Code, 23-1-15, and further held that under the law laid down in the first appeal of the Machala case, Machala v. Ott, State Compensation Commissioner, 108 W. Va. 391, 151 S. E. 313, that: “ * * * an award may not be had upon hearsay alone, but that in view of our statutes it was proper to be considered in connection with competent and sufficient corroborating testimony.” The Court further stated in the second appeal of the Machala case, Machala v. Ott, State Compensation Commissioner, 109 W. Va. 413, 416, 155 S. E. 169, that:

“The applicant, in this sort of proceeding, as in others, has the burden of proving his claim. But evidence sufficient to make a reasonable person conclude that the decedent was injured while performing his duties in the course of his employment is sufficient. 2 Schneider on Comp. sec. 537. So the burden of proof rests upon the applicant to furnish evidence from which it can be logically drawn that the injury arose out of and in due course of the employment, but that such proof may be hearsay as well as direct. No rule may be laid down as to the degree of proof which is sufficient to justify such recovery. If the evidence, though slight, is sufficient to make a reasonable person conclude that decedent was injured while performing his duties in the course of his employment or duties incidental to that employment, then that feature of the case is proved.”

It was held in that case that the evidence supported a finding in favor of the claimant.

The medical evidence in the case presented here is to the effect that the injury led to a thrombosed renal vein which in turn caused nephrosis, and that the death of claimant’s decedent was caused by a complication of both the neph-rosis and its treatment. It has been held that where death ensues because an injury is responsible for a lack of resistance to an infection, the causal connection can be traced directly to the injury. Lockhart, etc. v. State Compensation Commissioner et al., 115 W. Va. 144, 174 S. E. 780. Where serious disability is attributed to an injury suffered by an employee which arises out of and in the course of employment and death results therefrom, the claim is compensable. Vankirk v. State Compensation Commissioner, 144 W. Va. 447, 108 S. E. 2d 567. Where there is a causal connection between an injury received by an employee in the course of and resulting from his employment and his death, a claim for compensation in such case is allowable. Fennell v. Maryland Casualty Company, (Tenn.) 344 S. W. 2d 352. Evidence in the instant case supports the finding that claimant’s decedent received an injury in the course of and as a result of his employment, and we so hold.

Another contention of the employer that this claim is not compensable is that the claimant has failed to prove that the claim complies with the provisions of the dependency statute that the disability of the claimant’s decedent was continuous from the date of the injury until the date of his death, because the claimant returned to work after being injured. The statute in question upon which this claim is based, Code, 23-4-10, as amended, reads in part as follows:

“In case of personal injury other than silicosis or other occupational disease, suffered by an employee in the course of and resulting from his employment, causes death within the period of six years and disability is continuous from date of such injury until date of death * * * the benefits shall be in the amounts and to the persons as follows: ” [Italics supplied]

It will be noted that the statute merely requires that the disability be continuous from the date of the injury until the date of the death and it does not say that the disability must be total as is found in statutes in other states in cases cited in employer’s brief.

The common definition of disability means some “impairment”, which may be either total or partial. A person may be injured but continue to work although he still has a partial disability. 99 C.J.S., Workmen’s Compensation, §302 (1958).

The evidence in this case is clear that the disability of claimant’s decedent continued from the time of the injury until the time of his death, and although he worked, he was still suffering from the disability caused by the injury. He continued to see doctors with regard to the disability and was treated for it at the hospital. It has been held that one can receive compensation for a disability even though he continues to work. Blosser v. State Compensation Commission, et al., 132 W. Va. 112, 51 S. E. 2d 71; Walk v. State Compensation Commissioner, et al., 134 W. Va. 223, 58 S. E. 2d 791. We are, therefore, of the opinion that under the facts in the case at bar the disability of claimant’s decedent was continuous from the date of the injury until the date of his death and that it meets the requirements of the provisions of Code, 23-4-10, as amended.

For the reasons stated herein, we are of the opinion that the evidence in this case clearly shows that the claimant has sufficiently proved that an injury was received by her deceased husband in the course of and as a result of his employment; that there is sufficient medical evidence to indicate a causal connection between the injury and the disability suffered by claimant’s decedent and that the disability was continuous from the date of the injury until the date of his death; and that the claim is compensable.

The orders of the Appeal Board and the Director are reversed, the case is remanded with directions that the claimant be awarded compensation.

Reversed, with directions.