Morris v. State Compensation Commissioner

Lovins, Judge:

This is a statutory appeal from an order of the Workmen’s Compensation Appeal Board, denying workmen’s compensation benefits to Mrs. Carrie Morris, hereinafter referred to as “claimant”, whose deceased husband, Harry Morris, at the time <?f his death, was an employee of the Page Mining Company, hereinafter referred, to as “employer.”

Harry Morris, a sixty-one year old pump man, was found dead in the employer’s mine on the afternoon of February 17, 1949. The widow’s claim, based on the contention that death was due to an electrical shock sustained by her husband in the course of his employment, was originally rejected by the State Compensation Commissioner on the ground that Morris’s death was not due to an injury received in the course of and as a result of his employment. The certificate of death, furnished by the claimant with her application for benefits, and then considered by the commissioner, stated that the cause of death was unknown.

A pathologist, in a report of an autopsy performed on the day of death, stated that the cause of. death was undetermined, but that a terminal event in the death of Morris was edema of the brain and meninges. According to his report, decedent’s son had told the pathologist that on the morning of his death his father had mentioned casually that “he was so tired that he would rather stay at home than go to work.” The employer in its report to the commissioner was unable to account for the death of its employee.

Hearings were held by the commissioner pursuant to a protest filed by the claimant, and the following facts were developed.

Several employees with whom Harry Morris was working testified that he appeared to be in good health when he reported for duty on the day of his death, and that he seeemed to be in good physical condition during the course of the morning’s work. At approximately 2:15 P.M., the customary quitting time, the decedent was not present for the trip out of the mine. His fellow employees, being concerned over his absence, went to a section of the mine where Morris had gone to change the discharge lines on a pump. The work to be done by decedent consisted of taking a hose from the end of one pipe and putting it on the end of another. Decedent was found dead, lying on his back, both hands down by his sides. His body was partly under one of the discharge lines of the pump and across two return ground wires, one of .which was uninsulated. His head was even with the motor of the pump. The body was not touching the pump, the motor or the discharge pipe, which was about three feet above the ground. The pump motor was not running, and the job which decedent was sent to do had not been performed.

The clothing of the decedent was wet, and he had vomited. There are two possible ways to account for the fact that Morris’s clothing was wet. One witness testified that it was impossible for a person to perform the duties of pump man without getting wet. There is testimony that there was a water hole along the most direct and convenient approach to the pump. It is certain that if Morris had gone through the water hole, his clothing would have been at least partially wet.

The motor of the pump where decedent’s body was found was operated by electricity, which was obtained by connecting the wire leading to the motor with the main current wire, sometimes called the “trolley wire”. Such connection was effected by manually placing the nip of the motor wire over the trolley wire. To stop the flow of electric power into the motor wire, the nip had to be removed. • Decedent could not have done the work which he intended to do without first cutting off the pump motor, and removal of the nip was the only manner in which that could have been done.

A portion of the electric wire leading to the pump was immersed in the above-mentioned water hole, and one witness, a member of the searching party, testified that he removed the nip of this wire from the trolley wire before the party passed through the water, the witness being fearful that unless this precaution were taken, the water would be charged with electricity. The plain inference from such evidence is that the decedent, if he had passed through the water, might have been electrocuted. There is no evidence as to the distance from the water hole to the place where the body was lying. In view of the testimony of the witness, that he had removed the nip and thus stopped the pump motor, it is reasonable to say that the motor was running at the time of decedent’s death, and that the flow of electric power to the pump motor had not ceased at that time.

There is no evidence as to the voltage, of electric power transmitted by any of the wires mentioned in the record.

The autopsy report disclosed no pathological symptoms or indications of electrocution, The mortician, who prepared the body for burial, testified that there was a brown mark about three-fourths of an inch long on the back of the left hand. The mark, though present before and after embalming, was more pronounced after embalming. Two witnesses who saw the body the following day said that they noticed a mark on the right temple about the size of a half dollar; that there was a mark extending across the inside portion of the fingers on the left hand; and that the hand appeared to be drawn into a cupped shape. The examining pathologist testified that he had removed a scab from the brown mark on the back of decedent’s left hand, and that he concluded, after microscopic examination, that the lesion was not of recent origin. The witness further testified that the mark on the temple was a superficial skin lesion of recent origin caused by scratching over a rough surface. He stated as his conclusion that neither mark contributed to decedent’s death. The pathologist further testified that decedent could have suffered an electrical shock without the body showing either pathological change or external marks. But in ninety to ninety-three per cent of cases of electrocution there are obvious marks resulting from it.

There is no evidence to show that decedent had been in ill health prior to the date of his death.

On April 24, 1950, the Compensation Commissioner set aside his former ruling, and allowed the widow’s claim, awarding her the benefits as provided in the statute. An appeal was taken to the Workmen’s Compensation Appeal Board. The commissioner’s ruling was reversed by the appeal board, and benefits were denied on the ground that the claimant had not shown by a preponderance of the evidence that the death of the decedent resulted from his employment.

It is clearly shown that the death of the decedent occurred in the course of his employment. Therefore, the single issue presented upon this appeal is whether decedent’s death resulted from his employment.

This Court has stated on many occasions that a spirit of liberality should be employed in applying the provisions of the Workmen’s Compensation Act. Miller v. Comp. Com’r., 126 W. Va. 78, 81, 27 S. E. 2d 586; Chiericozzi v. Comp. Com’r., 124 W. Va. 213, 217, 19 S. E. 2d 590; Lester v. Comp. Com’r., 123 W. Va. 516, 520, 16 S. E. 2d 920, 923; Prince v. Comp. Com’r., 123 W. Va. 67, 13 S. E. 2d 396; Burgess v. Comp. Com’r., 121 W. Va. 571, 573, 5 S. E. 2d 804; Martin v. Commissioner, 111 W. Va. 420, 162 S. E. 486; Vandall v. Comp. Com’r., 110 W. Va. 61, 158 S. E. 499; Bonner v. Comp. Com’r., 110 W. Va. 38, 156 S. E. 847; Kincannon v. Comp. Com’r., 107 W. Va. 533, 149 S. E. 665; Caldwell v. Comp. Com’r., 106 W. Va. 14, 18, 144 S. E. 568.

The record discloses no direct evidence of how the death of Harry Morris occurred, but the absence of such evidence does not preclude an allowance of compensation benefits, if circumstances are shown from which it may be inferred that his death resulted from such employment. While it is incumbent upon the claimant to establish her claim by a preponderance of the evidence, this may be, and is, done by establishing physical facts that would warrant an inference that death was due to an injury received in the course of and resulting from the decedent’s employment.

The rigid rules of evidence and proof which prevail in the trial of actions at law do not govern proceedings in claims for workmen’s compensation. “The commissioner shall not be bound by the usual common law or statutory rules of evidence * * Code, 23-1-15. “We have here [Code, 23-1-15] not only the explicit sanction for a departure from the common law rules of proof but a direct legislative command that the commissioner shall not be bound by ‘common law or statutory rules of evidence.’ ” Machala v. Comp. Com’r., 109 W. Va. 413, 416, 155 S. E. 169. “* * * facts are permitted to be established by informal methods, decisions made therefrom, and probabilities weighed in a manner which would not be permitted in the trial of an action at law, governed by the more or less, rigid rules of evidence applicable to such cases.” Pannell v. Comp. Com’r., 126 W. Va. 725, 731, 30 S. E. 2d 129. The provisions of Code, 23-1-15, likewise govern proceedings before the Appeal Board, Vento v. Comp. Com’r., 130 W. Va. 577, 44 S. E. 2d 626.

While a finding of fact by the Appeal Board is not to be disturbed unless shown to be clearly wrong, such rule is. not applicable where the facts are undisputed, and the record will admit of reasonable inferences favorable to the claimant. Demastes v. Comp. Com’r., 112 W. Va. 498, 165 S. E. 667; Goble v. Comp. Com’r., 111 W. Va. 404, 162 S. E. 314; Poccardi v. Public Service Commission, 75 W. Va. 542, 84 S. E. 242. In the instant case, the claimant is aided by such inferences from the physical facts which have been established. Decedent’s body was found lying across two electric wires, one of which was not insulated. His clothing was wet and he had vomited. The motor wire was partially immersed in a water hole through which it was necessary to pass to reach the pump. In order to stop the flow of electricity to the pump motor, it was necessary to remove the nip of the motor wire from the trolley wire, and such removal was effected by a member of the searching party after decedent’s death, which fact indicates that the pump motor was running at the time of his death. Although a pathologist, who performed a thorough and complete post-mortem examination of decedent’s body, reported no pathological change or external marks indicating electrocution, he testified that death could have resulted from electrical shock without such evidence being present after death. The foregoing facts, in our opinion, warrant an inference that death was probably due to electrocution.

The theory upon which the employer would resist an award of compensation, that death probably resulted from natural causes, is based on unsupported conjecture. There is nothing in the record of this case to indicate that Morris was suffering from ill health either before or on the day of his death. It is true that the decedent’s son told the examining pathologist that his father had said on the morning of his death that “he was so tired that he would rather stay at home than go to work,” but we do not deem this casual remark of the father to his son as evidence of ill health. Moreover, the sole abnormal finding in the report of autopsy is an edema of the brain and meninges, which the pathologist has stated was a terminal event in the death of Morris but not the cause of his death.

The employer contends that the case at bar is. similar to that with which the Court was presented in Williams v. Comp. Com’r., 127 W. Va. 78, 31 S. E. 2d 546. But we do not consider the Williams case as analagous to the instant case. In the Williams case it was definitely established that the employee’s death was due either to heat prostration or to a heart attack, the sole question for decision being whether his death from a diseased physical condition was caused by some special or particular risk or danger attendant upon his employment. In the instant case the death, if connected with the decedent’s employment at all, must be characterized as traumatic, since no indication of disease or organic deficiency which would cause death is disclosed by the complete and full autopsy performed by the pathologist.

The holding of this Court in Demastes v. Comp. Com’r., supra, states a sound principle. In the Demastes case, the decedent, who worked alone, was found dead, lying on the ground, at the site of his work. The exact cause of his death was not disclosed, but the physical facts indicated that he had probably fallen or jumped about six or eight feet to the ground from a log. Although there was evidence that prior to the day of injury the decedent had suffered from sick headaches, neuralgia of the stomach and heart trouble, the Court rejected the theory that death was due to natural causes as being negatived by the undisputed physical facts. In the Demastes case the Court stated the basis of its conclusion in the following appropriate language: “We are not impressed with the theory that death resulted from a diseased physical condition. Testimony relating to such a theory does not negative the physical facts which stand undisputed; and since it is not a strained inference to connect death with the events which the physical facts indicate, we prefer probability rather than mere conjecture.”

A casualty, disease or failure of some vital organ “severs the thread of life” of a human being. There is no material evidence that decedent suffered from any disease, and there is no evidence that any of his vital organs had failed to function. If the decedent had suffered from a disease or organic failure, such fact would undoubtedly have been disclosed by the full and complete autopsy. Death of the decedent from natural causes being eliminated, we think nothing remains as the cause of his death except a casualty. Decedent having been found dead in the circumstances hereinbefore stated, there remains the outstanding probability that he was electrocuted as a result of his employment;

Accordingly, the order of the Workmen’s Compensation Appeal Board is reversed and the order of the State Compensation Commissioner is reinstated.

Order of Workmen’s Compensation Appeal Board reversed; order of State Compensation Commissioner reinstated.