Opinion
No. 7466
Submitted October 25, 1932.
Decided November 22, 1932.
Original proceeding in mandamus by James M. Pugh against the State Compensation Commissioner.
Writ awarded.
England Ritchie, for relator.
H. B. Lee, Attorney General, and R. Dennis Steed, Assistant Attorney General, for respondent.
Claimant's right leg was amputated 5-1/2 inches above the ankle, due to injuries to the right leg and foot in a slate fall on August 16, 1929. On October 30, 1929, the commissioner fixed the disability at 40%, and made an award of $8.00 per week for 160 weeks, the same expiring September 16, 1932. On November 12, 1929, upon additional evidence and information, the weekly rate was increased to $16.00.
Mandamus is sought to be invoked to require the commissioner to make an additional award of 5%, the statute (Code 1931, 23-4-6, subsection d) providing 45% for loss of leg; and to pay $150.00, claimed to be due on the original award.
The answer and return sets up the fact that the commissioner has graduated the leg into three parts, and that to entitle claimant to 45%, the amputation must be made in the upper third thereof; and that the $150.00 was paid out to Foster Treuheit Company for an artificial leg in conformity with orders from claimant.
The statute does not graduate for the loss of a leg. Reed v. Commissioner, 112 W. Va. 524, 166 S.E. 282. The relief being sought within the limitation period, claimant is clearly entitled to the additional 5%. Reed v. Commissioner, supra. As to the $150.00, it appears from the record exhibited with the pleading that the payment of this money was arranged for by claimant, and the warrant issued on his positive order.
The writ will issue as to the 5%.
Writ awarded.