Harvey v. Workmen's Compensation Commissioner & Island Creek Coal Co.

McGraw, Justice,

dissenting:

I respectfully dissent from the majority opinion on the grounds that the Appeal Board and the Commissioner did not liberally construe the evidence or the Workman’s Compensation Act in favor of the claimant, consistent with the well established law in West Virginia. Sowder v. State Workmen’s Compensation Commissioner, 155 W. Va. 889, 189 S.E.2d 674 (1972); Buckalew v. State Compensation Director, 149 W.Va. 239, 140 S.E.2d 453 (1965).

The majority finds that the claimant’s aggregated ascertainable impairments do not amount to an 85% total disability. They concede that if the evidence were interpreted in the light most favorable to the claimant, his disability would exceed 85%. They refuse, however, to apply the liberality rule, saying that contradictions among the medical experts and inconsistencies in favorable medical testimony make it impossible to find that the claimant’s condition was attributable to his work-related injury. Poppycock! I see no merit in either argument as a restriction on the application of the liberality rule.

Conflicts in expert medical evidence are subject to the rule of liberal construction just as are conflicts in other evidence and the Commissioner may not arbitrarily disbelieve or exclude from consideration competent medical testimony, absent credible evidence that the testimony is unreliable. Persiani v. State Workmen’s Compensation Commissioner, _ W.Va. _, 248 S.E.2d 844 (1978). All *961of the medical experts here agree that the claimant’s present condition is the result of the traumatic injury in 1970, which progressively aggravated his pre-existing congenital back infirmity and psychological problems. They simply do not agree to what extent his condition was aggravated. These contradictions should be resolved in favor of the claimant upon application of the liberality rule.

As to the alleged inconsistencies and contradictions in the favorable testimony of Dr. Raub and Dr. Borbeley, I am hard-pressed to find them. Dr. Raub’s testimony indicates that he believed the back injury alone did not impose total disability on the claimant but when the injury was combined with the pre-exising back condition, the chances were good that the claimant was totally disabled and incapable of doing strenuous, active work. Dr. Raub also opined that the claimant would be employable if his work did not involve bending or lifting, but this opinion is not inconsistent with his prior testimony. Rather, the unmistakable import of Dr. Raub’s testimony was to the effect that if the claimant were put in a work situation where his condition did not prevent him from working, he would be able to work. I cannot understand how the majority would interpret this statement of the obvious as being a contradiction.

Dr. Borberley’s testimony indicated that the claimant’s psychological condition was related to the trauma of the back injury. The majority apparently believes that the fact that Dr. Borberley’s opinion involved speculation vitiates any value that opinion has. In this context, I would simply note that the nature of psychological disorders makes its practically impossible to precisely measure the extent of the infirmity. An x-ray can detect a broken bone or sometimes a diseased lung and give us a picture revealing the severity of the injury, but there is no diagnostic device which can produce a picture of pain or mental disorder. Instead, we rely on the opinions of experts trained to recognize symptoms and to track down their causes. Speculation or deliberative hypothesis, as the doctor pointed out, is one of the *962tools a psychiatrist is trained to use in making treatment judgments involving his patients and his use of that tool in evaluating a patient’s illness does not make his opinion any less valid.

For these reasons I believe the majority erred in not finding the claimant to have an 85% disability. I think a liberal interpretation of the evidence clearly indicates that the claimant was permanently and totally disabled and should have been granted a life award.