1. Jeffrey W. McCormick v. Workers’ Compensation Division and J. W. Machine Company, No. 28646. (W.Va. May 2, 2001) (Memorandum Order) (Davis, J., Maynard, J., dissent).

Refuse 4-1
[ Maynard, J. ]

The Court, having maturely considered the petition for rehearing filed on the 28th day of August, 2001, by the appellee, J. W. Machine Company, by Steptoe & Johnson, and Henry C. Bowen, its attorneys, is of the opinion to and doth hereby refuse said petition for rehearing. Justice Maynard would grant. Justice Albright states that based upon the evidence in the record and in light of the rule of liberality, the Workers’ Compensation Appeal Board was clearly wrong in concluding that the finding of compensability by the Administrative Law Judge was erroneous. Consequently, the Court declines to set aside the June 12, 2001 Court’s Mandate.

Justice Albright further states that in so ruling, we observe that the claimant’s deposition, upon which the employer now seeks to rely, was not in evidence before the lower tribunals. Moreover, contrary to the impression left by the rehearing petition, the treating physician’s medical notations immediately following claimant’s injury reference the fact that claimant was hurt while pulling something. The medical form reporting the injury to Workers’ Compensation Division, signed by the treating physician, states that the claimant was injured at work "while pulling a piece of metal pipe" and suffered swelling, pain and spasms in the low back due to the injury incurred while the claimant was "backwards in [an] awkward, twisting position to make a weld and pulling on heavy pipe." The form further notes the physician’s initial impression that the jury was not an aggravation of the earlier back injury for which the physician had treated the claimant. Later, in his deposition testimony, the physician stated a different opinion, concluding that the work-related injury of April 28, 1998, had indeed aggravated the prior back injury. However, whether the work-related injury was a completely new one or an aggravation of an older one does not affect the issue of compensability.

The evidence established a compensable injury, and the Workers’ Compensation Appeal Board’s reversal of that finding was clearly wrong. Justice Starcher joins in Justice Albright’s remarks.

 

2. James T. Wellman and Grace Wellman v. Energy Resources, Inc, No. 28209. (W.Va. July 6, 2001) (McGraw, C.J.).