Adkins v. State Compensation Director

• Citation: 149 W.Va. 540,142 S.E.2d 466
• Decision Date: 01 June 1965
• Docket Number: No. 12440,12440
• Court: Supreme Court of West Virginia
• Parties: Herman D. ADKINS v. STATE COMPENSATION DIRECTOR and Pocahontas Fuel Company, a Corporation.

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.

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 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 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 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 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, but after receiving a letter in opposition from the employer, entered an ex parte order overruling the claimant's motion of June 2, 1964, on the ground that it was not filed within thirty days from the date of the order of August 15, 1963. The Director treated the motion as equivalent to an objection. This order of October 5, 1964 was timely appealed to the Workmen's Compensation Appeal Board by the claimant.

When the case was before the Appeal Board the employer, according to a statement in its brief, moved the Board to dismiss the claim on the ground that the Director had lost jurisdiction to take any other action than that taken by him. The Appeal Board did not specifically overrule the motion alleged to have been made on behalf of the meployer to dismiss the appeal, but did specifically, by written order, reverse the Director and remanded the case to the Director for further action outlined in the opinion of the Board attached to the order. The opinion, after stating that the Director's order of October 5, 1964 was set aside, merely remanded the claim to the Director 'for such consideration as he deems proper'.

The question involved in this case is governed by Code 23-5-1, as amended, and it specifically sets out the duties of the Director in connection with such matter and the requirements relating thereto. The pertinent provisions of this statute are as follows:

'The commissioner shall have full power and authority to hear and determine all questions within his jurisdiction, but upon the making or refusing to make any award, or upon the making of any modification or change with respect to former findings or orders, as provided by section sixteen article four ( § 2541) of this chapter, the commissioner shall give notice, in writing, to the employer, employee, claimant, or dependent, as the case may be, of his action, which notice shall state the time allowed for filing an objection to such finding, and such action of the commissioner shall be final unless the employer, employee, claimant or dependent shall, within thirty days after the receipt of such notice, object, in writing, to such finding.'

It will be noted that the statute in question provides that the parties have thirty days in which to make an objection or protest to the finding of the Director 'after the receipt of such notice'.

It is the claimant's contention that he never received the notice. The employer contends that there is a...