Johnson v. State Compensation Commissioner

7 Citing cases

  1. Hammons v. W. Va. Office of the Ins. Comm'r

    775 S.E.2d 458 (W. Va. 2015)

    See also Syl., in part, Justice v. State Comp. Dir., 149 W.Va. 216, 140 S.E.2d 424 (1965) (“When a claimant makes timely application in writing ... for further adjustment of his claim and upon such application establishes a fact or facts not previously considered by the Director in his former findings which would entitle claimant to greater benefits than he was already received, the claim should be reopened, and this Court will reverse an order of the Workmen's Compensation Appeal Board affirming an order of the Director which denies a reopening of the claim.”); Syl., in part, Johnson v. State Comp. Comm'r, 128 W.Va. 37, 35 S.E.2d 677 (1945) (“Where a claimant in a workman's compensation case makes timely application in writing under Code, 23–5–1, as amended and reenacted by Chapter 137, Acts, West Virginia Legislature, 1939, Article 5, Sections 1(a) and 1(b), for further adjustment of his claim, and upon such application claimant establishes a progression or aggravation in his condition, or a fact or facts not theretofore considered by the commissioner in his former findings, and which would entitle claimant to greater benefits than he has already received, this Court will reverse an order of the appeal board affirming the order of the commissioner which denies a reopening of the case.”). Should a claimant appealing from an adverse decision of the Claims Administrator to the Office of Judges still fail to obtain a favorable resolution of his/her claim, he/she may then appeal the adverse ruling to the Board of Review. W. Va.Code § 23–5–10 (2005) (Repl.

  2. Hammons v. W. Va. Office of the Ins. Comm'r

    235 W. Va. 577 (W. Va. 2015)

    See Syl., in part, Harper v. State Workmen's Comp. Comm'r, 160 W.Va. 364, 234 S.E.2d 779 (1977) (“For purposes of obtaining a reopening of a Workmen's Compensation claim ..., the claimant must show a prima facie cause, which means nothing more than any evidence which would tend to justify, but not to compel the inference that there has been a progression or aggravation of the former injury.”). See also Syl., in part, Justice v. State Comp. Dir., 149 W.Va. 216, 140 S.E.2d 424 (1965) (“When a claimant makes timely application in writing ... for further adjustment of his claim and upon such application establishes a fact or facts not previously considered by the Director in his former findings which would entitle claimant to greater benefits than he was already received, the claim should be reopened, and this Court will reverse an order of the Workmen's Compensation Appeal Board affirming an order of the Director which denies a reopening of the claim.”); Syl., in part, Johnson v. State Comp. Comm'r, 128 W.Va. 37, 35 S.E.2d 677 (1945) (“Where a claimant in a workman's compensation case makes timely application in writing under Code, 23–5–1, as amended and reenacted by Chapter 137, Acts, West Virginia Legislature, 1939, Article 5, Sections 1(a) and 1(b), for further adjustment of his claim, and upon such application claimant establishes a progression or aggravation in his condition, or a fact or facts not theretofore considered by the commissioner in his former findings, and which would entitle claimant to greater benefits than he has already received, this Court will reverse an order of the appeal board affirming the order of the commissioner which denies a reopening of the case.”). Should a claimant appealing from an adverse decision of the Claims Administrator to the Office of Judges still fail to obtain a favorable resolution of his/her claim, he/she may then appeal the adverse ruling to the Board of Review.

  3. Pertee v. State Workmen's Compensation Commissioner

    255 S.E.2d 914 (W. Va. 1979)   Cited 3 times

    Our cases do, however, reflect that this Court has perhaps been more liberal in viewing a hernia case in favor of the claimant than in most other industrial injury cases. See, e.g., Johnson v. State Compensation Commissioner, 128 W. Va. 37, 35 S.E.2d 677 (1945); Szalay v. State Compensation Commissioner, 127 W. Va. 449, 33 S.E.2d 236 (1945); Cole v. State Compensation Commissioner, 113 W. Va. 579, 169 S.E. 165 (1933); Poccardi v. Public Service Commission, 75 W. Va. 542, 84 S.E. 242 (1915). While the employer argues that the medical evidence indicates the claimant's hernia condition has been successfully repaired in the sense that there is no actual hernia protrusion, this argument ignores substantial medical evidence that his condition is such that he is extremely vulnerable to a recurrence of hernia.

  4. Buckalew v. Comp. Director

    140 S.E.2d 453 (W. Va. 1965)   Cited 17 times

    In the opinion in that case this Court used this pertinent language: "When a claimant makes timely application in writing for further adjustment of his claim and upon such application establishes progression or aggravation in his condition or a fact or facts not previously considered by the commissioner in his former findings which would entitle the claimant to greater benefits than he has already received, the claim should be reopened, and this Court will reverse an order of the appeal board affirming an order of the commissioner which denies a reopening of the claim. See Johnson v. State Compensation Commissioner, 128 W. Va. 37, 35 S.E.2d 677." In the Johnson case this Court held in the syllabus that where a claimant in a workmen's compensation case makes timely application in writing under the provisions of Chapter 23, Article 5, Sections 1 (a) and 1 (b), Code, 1931, as amended, for further adjustment of his claim, and upon such application establishes a progression or an aggravation in his condition, or a fact or facts not previously considered by the commissioner in his former findings, which would entitle claimant to greater benefits than he has already received, this Court will reverse the order of the appeal board affirming the order of the commissioner which denies the reopening of the claim.

  5. Justice v. Comp. Director

    140 S.E.2d 424 (W. Va. 1965)   Cited 7 times

    In Bare v. State Compensation Director, 148 W. Va. 760, 137 S.E.2d 435, this Court said: "When a claimant makes timely application in writing for further adjustment of his claim and upon such application establishes progression or aggravation in his condition or a fact or facts not previously considered by the commissioner in his former findings which would entitle the claimant to greater benefits than he has already received, the claim should be reopened, and this Court will reverse an order of the appeal board affirming an order of the commissioner which denies a reopening of the claim." Similar language is found in Johnson v. State Compensation Commissioner, 128 W. Va. 37, 35 S.E.2d 667. Believing as we do that the claimant has made a prima facie showing entitling him to a reopening of his claim, the orders of the Appeal Board and the Director are reversed and set aside and this proceeding is remanded to the Director with directions to grant the petition of the claimant to reopen his claim.

  6. Tate v. State Compensation Director

    138 S.E.2d 636 (W. Va. 1964)   Cited 6 times

    This matter is clearly stated in the first point of the syllabus in the Vento case, in the following language: "In order to reverse a finding of fact by the Workmen's Compensation Appeal Board it must appear from the proof upon which the board acted that the finding in question was plainly wrong. The case of Johnson v. State Compensation Commissioner, 128 W. Va. 37, 35 S.E.2d 677, clearly indicates that the finding of the Director and the State Compensation Appeal Board in this case should be affirmed. We are, therefore, of the opinion that under the facts presented to us in this instance that the finding of the Workmen's Compensation Director and the Workmen's Compensation Appeal Board based on the facts contained in the record are not plainly wrong and should be affirmed.

  7. Bare v. State Compensation Director

    137 S.E.2d 435 (W. Va. 1964)   Cited 9 times
    In Bare v. State Compensation Director, 148 W. Va. 760, 137 S.E.2d 435, this Court said: "When a claimant makes timely application in writing for further adjustment of his claim and upon such application establishes progression or aggravation in his condition or a fact or facts not previously considered by the commissioner in his former findings which would entitle the claimant to greater benefits than he has already received, the claim should be reopened, and this Court will reverse an order of the appeal board affirming an order of the commissioner which denies a reopening of the claim."

    When a claimant makes timely application in writing for further adjustment of his claim and upon such application establishes progression or aggravation in his condition or a fact or facts not previously considered by the commissioner in his former findings which would entitle the claimant to greater benefits than he has already received, the claim should be reopened, and this Court will reverse an order of the appeal board affirming an order of the commissioner which denies a reopening of the claim. See Johnson v. State Compensation Commissioner, 128 W. Va. 37, 35 S.E.2d 677. The claimant insists that the facts embraced in the report of Dr. Raub and the report and the testimony of Dr. Rossman were not considered by the commissioner when he denied the petition of the claimant to reopen on the basis of the facts contained in the report of Dr. Richie.