Adkins v. State Compensation Director, No. 12440

CourtSupreme Court of West Virginia
Writing for the CourtBERRY
Docket NumberNo. 12440
PartiesHerman D. ADKINS v. STATE COMPENSATION DIRECTOR and Pocahontas Fuel Company, a Corporation.
Decision Date01 June 1965

Page 466

142 S.E.2d 466
149 W.Va. 540
Herman D. ADKINS
v.
STATE COMPENSATION DIRECTOR and Pocahontas Fuel Company, a
Corporation.
No. 12440.
Supreme Court of Appeals of West Virginia.
Submitted April 27, 1965.
Decided June 1, 1965.

Page 467

Syllabus by the Court

1. Code, 23-5-1, as amended, relating to the mailing of notice to interested parties upon an order entered by the Workmen's Compensation Director, provides for a period of 30 days after 'receipt of such notice' within which objection may be made to obtain a hearing before the Director. The notice must be actually or constructively[149 W.Va. 541] received, not merely mailed; and until such time as the notice is received by the party seeking to protest of object, notwithstanding the expiration of the 30 day period from the date such notice was mailed, the right to obtain a hearing by filing an objection still remains.

2. Where a statute, Code, 23-5-1, as amended, requires the receipt of a notice in order to start a period running within which to object to such notice or order and a controversy arises as to receipt thereof, a matter on which evidence was not taken by an administrative officer or body prior to a decision thereon, the proceeding must be remanded to the original fact-finding body or officer for the purpose of taking evidence and making up a record on the point in controversy before a finding of fact can be made thereon by the fact-finder from which a proper order may be entered.

Crockett, Tutwiler & Crockett, Charles A. Tutwiler, Welch, for appellant.

D. Grove Moler, Mullens, for appellee.

BERRY, Judge.

This is an appeal by the employer, Pocahontas Fuel Company, a corporation, from an order of the Workmen's Compensation Appeal Board dated January 8, 1965, which reversed and set aside an order of the State Compensation Director dated October 5, 1964, by which order the Director refused to further consider the claim upon motion of the claimant on the ground that objection by claimant had not been timely filed to the Director's ruling of August 15, 1963, by which ruling the Director held that the claimant had been fully compensated for his injury. Upon application to this Court an appeal was granted from the decision of the Appeal Board and the case was argued and submitted for decision at the April Special 1965 Term.

The claimant, Herman D. Adkins, was injured on September 25, 1961, while working in the mine of the Pocahontas Fuel Company, a corporation, at Itmann, West [149 W.Va. 542] Virginia, at which time he sustained a 'fracture of 5th lumbar vertebra; lumbosacral sprain'. The injury was held to be compensable and the claimant was awarded a 12 1/2% permanent partial disability

Page 468

on July 13, 1962, to which award no protest was filed, although an attempt to reopen was turned down by the Director on March 20, 1963. Upon further application of the claimant, the claim was reopened on July 2, 1963, and on August 15, 1963, after the Director had received an additional medical report, he held that claimant had been fully compensated for the disability as the result of his injury, stating in the letter that claimant had thirty days within which time to file objection to the finding of August 15, 1963. This letter indicated that carbon copies had been sent to the Pocahontas Fuel Company, the attorney for the claimant, and the Employers Service Corporation. No objection was filed by the claimant within thirty days of the date of this letter and it is because of this fact that the question involved in this case arises.

It is the position of both the claimant and his attorney that they did not know that such an order refusing additional compensation had been entered, that the claimant had never received the original notice and his attorney had never received a copy of the notice. The brief fined in behalf of the claimant indicates that the first information the claimant or his attorney had with regard to the order of August 15, 1963, was when the attorney for the claimant was examining the file in the Director's office in January or February, 1964, at which time he found a copy of the order in the file showing a distribution of the copies. He called attention of the secretary of the department to the matter and then returned and searched for a copy of said order but could find no trace of it in either his or his client's possession. However, a copy of the doctor's report, upon which the order was based, was found by the claimant's attorney in his file, although he did not know how he had obtained it. An affidavit was prepared and signed by the claimant to the effect that no notice of the Director's ruling of August 15, 1963 was ever received, and the claimant's attorney moved by letter dated June 2, 1964 to the Department to vacate the order and permit the claimant [149 W.Va. 543] to submit reports of additional [medical] examinations. The Director, on Cotober 5, 1964, without conducting a hearing as to the mailing and receipt of the order of August 15, 1963,...

To continue reading

Request your trial
4 practice notes
  • State ex rel. Smith v. Boles, No. 12485
    • United States
    • Supreme Court of West Virginia
    • January 12, 1966
    ...attorney, it is presumed that a public official will perform his duties as required by law. Adkins v. State Compensation Director, W.Va., 142 S.E.2d 466, 469; Liberty Coal Co. et. al. v. Bassett, 108 W.Va. 293, 150 S.E. 745. Then, too, the affidavit of the petitioner's attorney at the time ......
  • Thompson v. Workers' Compensation Com'r, No. 18762
    • United States
    • Supreme Court of West Virginia
    • March 28, 1989
    ...was mailed, the right to obtain a hearing by filing an objection still remains." Syllabus Point 1, Adkins v. State Compensation Director, 149 W.Va. 540, 142 S.E.2d 466 2. The time period for filing objections to rulings of the Workers' Compensation Commissioner under W.Va.Code, 23-5-1 (1986......
  • Morgan v. Allianz Life Ins. Co. of North America, Civil Action No. 5:96-1978.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • August 29, 1997
    ...as the Beneficiary contends, that the cases relied upon for this proposition, National Grange and Adkins v. State Compensation Dir., 149 W.Va. 540, 142 S.E.2d 466 (1965), involve letters sent by certified mail, the courts have not held application of the presumption requires notice be maile......
  • State ex rel. Cephas v. Boles, No. 12419
    • United States
    • Supreme Court of West Virginia
    • June 1, 1965
    ...been convicted in the Criminal Court of Raleigh County, it was incumbent upon the petitioner, if he desired to appeal such conviction, [149 W.Va. 540] to have applied therefor in the circuit court of said county within four months from the date of the judgment. Code, 1931, 58-4-4. The petit......
4 cases
  • State ex rel. Smith v. Boles, No. 12485
    • United States
    • Supreme Court of West Virginia
    • January 12, 1966
    ...attorney, it is presumed that a public official will perform his duties as required by law. Adkins v. State Compensation Director, W.Va., 142 S.E.2d 466, 469; Liberty Coal Co. et. al. v. Bassett, 108 W.Va. 293, 150 S.E. 745. Then, too, the affidavit of the petitioner's attorney at the time ......
  • Thompson v. Workers' Compensation Com'r, No. 18762
    • United States
    • Supreme Court of West Virginia
    • March 28, 1989
    ...was mailed, the right to obtain a hearing by filing an objection still remains." Syllabus Point 1, Adkins v. State Compensation Director, 149 W.Va. 540, 142 S.E.2d 466 2. The time period for filing objections to rulings of the Workers' Compensation Commissioner under W.Va.Code, 23-5-1 (1986......
  • Morgan v. Allianz Life Ins. Co. of North America, Civil Action No. 5:96-1978.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • August 29, 1997
    ...as the Beneficiary contends, that the cases relied upon for this proposition, National Grange and Adkins v. State Compensation Dir., 149 W.Va. 540, 142 S.E.2d 466 (1965), involve letters sent by certified mail, the courts have not held application of the presumption requires notice be maile......
  • State ex rel. Cephas v. Boles, No. 12419
    • United States
    • Supreme Court of West Virginia
    • June 1, 1965
    ...been convicted in the Criminal Court of Raleigh County, it was incumbent upon the petitioner, if he desired to appeal such conviction, [149 W.Va. 540] to have applied therefor in the circuit court of said county within four months from the date of the judgment. Code, 1931, 58-4-4. The petit......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT