Rapp v. Comp. Com'r.

I respectfully disagree with the conclusion reached in the majority opinion.

If the facts now before this Court were the same as on the former appeal, we would be bound to adhere to our former decision, that being the "law of the case". The testimony of Dr. Bundy and Lillian Rapp, in my opinion, substantially strengthened claimant's case. It is true that the testimony of the witnesses mentioned above is negative, but it does show that the family physician and wife of the deceased employee knew of no hernia prior to the date of the injury suffered by Rapp. In this instance death prevents the taking of positive evidence relative to the nonexistence of hernia before injury, and the natural inquiry arises: Who would have better opportunities to know Rapp's physical condition than his family physician and his widow? The answer is obvious. The testimony of the physician and Mrs. Rapp was such, in my opinion, that the requirement made by the finding of this Court on the former appeal is amply met.

It may be doubted whether Rapp was suffering from hernia prior to his injury, but that doubt, if it exists, should be resolved in favor of claimant. Pripich v. Comp. Comm'r, 112 W. Va. 540,166 S.E. 4; Fulk v. Comp. Comm'r, 112 W. Va. 555, 166 S.E. 5; Walden v. Comp. Comm'r, 112 W. Va. 571,166 S.E. 6; Lively v. Commissioner, 113 W. Va. 242,167 S.E. 583. The evidence supporting the claim of the widow and child of the deceased employee, when supplemented by the testimony taken after the remand and before this appeal, and appraised according to the liberal rule above mentioned, justifies an award of compensation benefits in this case.

I would reverse the order of the Workmen's Compensation Appeal Board.