Bailes v. State Workmen's Compensation Commissioner, 12703

• Decision Date: 28 May 1968
• Docket Number: No. 12703,12703
• Court: West Virginia Supreme Court
• Parties: Holly V. BAILES v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Keystone Motor Express.

Page 261

161 S.E.2d 261

152 W.Va. 210

Holly V. BAILES v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Keystone Motor Express.

No. 12703.

Supreme Court of Appeals of West Virginia.

Submitted April 16, 1968.

Decided May 28, 1968.

Syllabus by the Court

The one year period of limitation provided by Section 16, Article 4, Chapter 23, Code, 1931, as amended, begins to run from the entry of a permanent partial disability compensation award when such award has been paid when made by prior payments of temporary total disability compensation and the amount of such compensation exceeds the amount of the permanent partial disability award; and an application to reopen a claim for compensation after the expiration of one year from the entry and payment of such award is barred by the statutory limitation of one year from the payment of such award and must be refused by the commissioner.

McDougle, Davis, Stealey & Morris, J. M. Handlan, Parkersburg, for appellant.

William L. Jacobs, Parkersburg, for appellee.

HAYMOND, Judge:

The question for determination upon this appeal is whether the West Virginia Workmen's Compensation Commissioner has jurisdiction to reopen the claim for compensation of an employee upon his application for further adjustment of such claim after the expiration of one year from the entry of an order of the commissioner granting the employee a 5% Permanent partial disability award, which award, though appealed from, was affirmed by the Workmen's Compensation Appeal Board by its order of May 5, 1966 and was likewise affirmed by order of the commissioner entered less than one year before the employee filed his application to reopen his claim for further adjustment, and which award was for an amount of compensation less than the compensation previously awarded the employee for temporary total disability which had been fully paid more than three years before the application to reopen was filed by the employee.

The material facts are not disputed and the question for decision is a question of law.

The claimant, Holly V. Bailes, an employee of Keystone Motor Express, a corporation, was injured in the course of his employment on January 9, 1962. The compensability of his claim was not questioned and the claimant was compensated on the basis of temporary total disability for a period of thirty and five-sevenths weeks. The last payment of temporary total disability compensation was made in August 1962. On April 2, 1963, the commissioner found that the claimant was entitled to a 5% Permanent partial disability award but held that no payment would be made on a permanent disability basis for the reason that the amount of the compensation for total temporary disability previously paid the claimant exceeded the amount of the compensation awarded for 5% Permanent partial disability. The claimant protested the ruling of the commissioner. After numerous hearings at which extensive medical facts were introduced and the claimant and the employer had agreed that the claim should be concluded and submitted, the original order of April 2, 1963 awarding 5% Permanent partial disability was affirmed by the commissioner by order entered January 4, 1966. Upon appeal by the claimant to the Workmen's Compensation Appeal Board, the order of the commissioner of January 4, 1966 was upheld on May 5, 1966 and the commissioner, by order of June 7, 1966, affirmed his previous order of January 4, 1966 which awarded the claimant compensation for 5% Permanent partial disability.

On January 30, 1967, the claimant filed his application to reopen the claim for further adjustment. The commissioner, by order of February 6, 1967, refused to grant the application to reopen for the stated reason that more than three years had elapsed since the last payment of total temporary disability compensation before the filing of the application. Upon appeal by the employer the Workmen's Compensation Appeal Board, by order of July 10, 1967, reversed and vacated the order of the commissioner of February 6, 1967 and remanded the claim to the commissioner for further proceedings. From the order of the appeal board of July 10, 1967, this Court granted this appeal upon the application of the employer.

The workmen's compensation system of this State is created by and based upon statute. Blevins v. State Compensation Commissioner, 127 W.Va. 481, 33 S.E.2d 408. The right to workmen's compensation is wholly statutory and is not in any way based on the common law. The statutes are controlling and the rights, remedies and procedure provided by them are exclusive. Dunlap v. State Compensation Director, 149 W.Va. 266, 140 S.E.2d 448. The jurisdiction of the commissioner is dealt with and limited by Section 16, Article 4, Chapter 23, Code, 1931, as amended. That section provides, to the extent here pertient, that 'The power and jurisdiction of the commissioner over each...