Ashworth v. Workmen's Compensation Commissioner

• Decision Date: 24 May 1966
• Docket Number: No. 12558,12558
• Court: West Virginia Supreme Court
• Parties: Dorothea ASHWORTH, Widow, etc. v. WORKMEN'S COMPENSATION COMMISSIONER, and Huntington Alloy Products Division, the International Nickel Co., Inc.

Page 364

148 S.E.2d 364

150 W.Va. 537

Dorothea ASHWORTH, Widow, etc. v. WORKMEN'S COMPENSATION COMMISSIONER, and Huntington Alloy

Products Division, the International Nickel Co., Inc.

No. 12558.

Supreme Court of Appeals of West Virginia.

Submitted April 19, 1966.

Decided May 24, 1966.

Syllabus by the Court

Under Code, 23--4--6(e), as amended, where an employee to whom a permanent partial compensation award of from one per cent to eighty-four per cent has been made dies from sickness or non-compensable injury, the persons entitled to receive the unpaid balance of such award, if any, are limited to those persons dependent on such employee at the time of his death.

Harry Scherr, Jr., Huntington, for appellant.

Barrett & Chafin, James F. Barrett, Huntington, for appellee.

BROWNING, Judge.

W. B. Ashworth, an employee of the International Nickel Co., Inc., hereinafter referred to as 'employer', sustained an injury to his back while at work on June 7, 1957, which was diagnosed as 'recurrent strain, lumbosacral joint'. The claim was determined compensable on July 9, 1957, however, inasmuch as Ashworth lost no time from work in excess of one week, no payments of compensation were made on a temporary disability basis. On September 20, 1959, Ashworth was admitted to St. Mary's Hospital in Huntington, suffering from 'terrific muscle spasms' resulting from an attempt to hold a pile of falling metal. Upon inquiry by the commissioner as to whether this condition should be treated as a new injury, Ashworth's attending physician advised '* * * we feel very definitely that this is a continuation of his previous injury'. The claim was thereafter treated as originating on June 7, 1957, and medical bills and compensation benefits on a temporary disability basis were paid thereunder.

On March 15, 1962, Ashworth was awarded a 50% Permanent partial disability, equal to an amount of $6,000.00 which, less temporary benefits theretofore paid, left a balance due of $5,421.43, $3,248.57 of which had accrued to March 15, 1962. This award was protested by the employer, and the check for $3,248.57 returned to the commissioner, but, prior to any further action, Ashworth died on March 29, 1962, from causes unrelated to his injury, survived by his widow and two children. After hearings pursuant to the employer's protest to the amount of the award, the commissioner affirmed his previous order, which ruling, on appeal, was affirmed by the workmen's compensation appeal board but the claim was remanded to the commissioner for the purpose of determining whether there was anyone entitled to the unpaid balance of the award.

The commissioner, on October 7, 1964, entered an order directing that such unpaid balance 'be paid to Gary Martin Ashworth and Robert Allen Ashworth, sons of the decedent, in like manner and in like amount as it would have been paid to the decedent had he lived. * * *' The employer protested this order and the claim was set for hearing. At the hearing, the birth certificates of the sons were introduced showing that Gary Martin Ashworth and Robert Allen Ashworth were born on October 24, 1941, and March 26, 1943, respectively. Gary Ashworth testified that he last lived with his father in June, 1959, at which time he entered military service although he stayed with him on week ends and when on leave; he was supported by his father from June 7, 1957, until June, 1959, and received some financial help from him thereafter; his mother and father separated in June, 1960, his mother removng her residence to Miami, Florida; and, he married in December, 1961, while in service. Robert Ashworth stated that he lived with and was supported by his father until the summer of 1960, when he went to Florida with his mother and thereafter received no support from his father. It was stipulated that a separation agreement between Ashworth and his wife, dated January 25, 1962, 'contemplated no provision as to the support of or custody' of the two sons.

The commissioner thereafter affirmed his order of October 1, 1964, and the employer appealed. The appeal board affirmed the commissioner in holding that the two sons were the proper persons to receive anything due under the award but reversed the commissioner in holding that they were entitled to receive the entire unpaid balance and directed payment be made only from the injury date, June 7, 1957, up to the eighteenth birthday of each, less the amount previously paid, from which order, on application of the employer, this Court granted an appeal on March 7, 1966. Errors assigned in this Court are, in substance, the appeal board and the commissioner's determination that Ashworth had any dependents at the time of his death within the meaning of the compensation act; and the fixing of the date of June 7, 1957, as the date of injury.

Code, 23--4--6, subsections (e) and (i), as amended, provide: '(e) Should a claimant to whom has been made a permanent partial award of from one per cent to eighty- four per cent, both inclusive, die from sickness or noncompensable injury, the unpaid balance of such award shall be paid to claimant's dependents as defined in this chapter, if any; such payment to be made in the same installments that would have been paid to claimant if living: Provided, however, that no payment shall be made to any widow of such claimant after her remarriage, and that this liability shall not accrue to the estate of such claimant * * *.'

'(i) Where an injury results in temporary total disability for which compensation is awarded * * * and such injury is later determined permanent partial disability * * * the amount of compensation so paid (temporary) shall be considered as payment of the (permanent) compensation * * *. Compensation, either total temporary or permanent partial, under this section shall be payable only to the injured employee and the right thereto shall not vest in his or her estate, except that any unpaid compensation which would have been paid or payable to the employee up to the time of his death, if he had lived, shall be paid to the dependents of such injured employee if there be such dependents at the time od death.'

Code, 23--4--10, as amended, relating to cases in which the compensable injury results in death within six years and...