Bailey v. SWCC, Nos. 15479

• Court: Supreme Court of West Virginia
• Writing for the Court: NEELY
• Citation: 296 S.E.2d 901,170 W.Va. 771
• Docket Number: Nos. 15479,15462 and 15459
• Decision Date: 24 June 1982
• Parties: Charles BAILEY v. SWCC and Eastern Associated Coal Corp. Delmar Eugene BERRY v. SWCC and Orders & Haynes Paving Company. Kay W. CHAPMAN v. SWCC and G.C. Murphy Co.

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296 S.E.2d 901 170 W.Va. 771 Charles BAILEY
v.
SWCC and Eastern Associated Coal Corp.
Delmar Eugene BERRY
v.
SWCC and Orders & Haynes Paving Company.
Kay W. CHAPMAN
v.
SWCC and G.C. Murphy Co. Nos. 15479, 15462 and 15459. Supreme Court of Appeals of West Virginia. June 24, 1982.

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[170 W.Va. 772] Syllabus by the Court

1. Time limitations under the Workmen's Compensation Act are not jurisdictional, but procedural, and all prior opinions to the contrary are overruled.

2. In the event that a late filing is excusable by virtue of innocent mistake, excusable neglect, unavoidable cause, fraud, misrepresentation or other misconduct of an adverse party, or any other reason justifying relief from the running of the time period, then timely filing shall not be considered mandatory.

3. In any future claim where claimant seeks to file after the expiration of a statutory time limitation, claimant shall append to his filing a statement of reasons in affidavit form with supporting affidavits where appropriate, explaining his delay, and the tribunal before which the claimant seeks to be heard shall decide on the basis of that statement whether excuse of the delay is warranted; a decision on this subject may be appealed like any other issue in the case.

Kay W. Chapman, pro se, for appellants.

Jackson, Kelly, Holt & O'Farrell, John L. McClaugherty and George E. Roeder, III, Charleston, for appellees.

NEELY, Justice:

We have consolidated the appeals in these three cases in order to consider whether to adhere to prior decisions holding that non-compliance with directory time limitations of the Workmen's Compensation Act erects a jurisdictional hurdle that can [170 W.Va. 773] never be overcome. No convincing reason to adhere to that proposition presents itself, so today we overrule our holdings concerning the jurisdictional nature of time periods in Spaulding v. State Workmen's Compensation Commissioner, 157 W.Va. 849, 205 S.E.2d 130 (1974); Baker v. State Workmen's Compensation Commissioner, 143 W.Va. 536, 103 S.E.2d 391 (1958); Whited v. State Workmen's Compensation Commissioner,

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131 W.Va. 646, 49 S.E.2d 838 (1948); Bowdler v. State Workmen's Compensation Commissioner, 124 W.Va. 629, 22 S.E.2d 359 (1942), and any other case holdings to the effect that statutory time limitations under the Workmen's Compensation Act operate as a limit on the jurisdiction of the Court, the appeal board or the commissioner.

We further overrule all previous opinions holding that compliance with time limitations is absolutely mandatory. Nichols v. State Compensation Commissioner, 111 W.Va. 34, 160 S.E. 854 (1931); Myers v. State Compensation Commissioner, 110 W.Va. 425, 158 S.E. 512 (1931); Enyart v. State Compensation Commissioner, 109 W.Va. 613, 155 S.E. 913 (1930).

The appellants, Kay Chapman, Delmar Berry and Eugene Bailey, have all run afoul of statutory time limitations in their prosecution of Workmen's Compensation claims. Mrs. Chapman, who was represented by counsel in her hearings before the Workmen's Compensation Commissioner, appeals pro se from an order of the Appeal Board dated 30 September 1981. On 6 November 1981 we received her request for appeal dated 2 November. Her appeal thus exceeds by a few days the thirty-day time period allowed for appeals to this Court.

Mr. Berry is alleged to have been late in giving notice of appeal of the Board's final order of 31 March 1981. A letter dated 27 April 1981 signed by Mr. Berry and his counsel and acknowledging receipt of the order was received by the Workmen's Compensation Fund on 28 April. Another letter of 27 April, identical in every respect except adding the language "and we do protest the same" was received on 26 October 1981. The circumstances of this second letter's delay are unexplained.

The third appellant, Mr. Bailey, was injured in a work-related accident on 22 March 1971. On 30 December 1971 he was awarded a permanent partial disability of five percent which was increased to thirty percent and then sixty percent as a result of further proceedings on 11 March 1975 and 19 April 1977. In both awards, previous temporary total disability payments were subtracted from the permanent partial disability payment. The law requiring this subtraction had been changed on 1 July 1971--three months after the injury--so that such subtractions were no longer authorized. On 15 October 1979 Mr. Bailey petitioned the Commissioner for the amount subtracted from his award. This petition was denied, and the Commissioner's decision was affirmed by the Appeal Board on 29 January 1981. Timely notice of appeal was filed with this Court. Mr. Bailey, however, had not filed a notice of appeal within thirty days of receipt of the Commissioner's final order of 19 April 1977.

The appellees in these cases contend that the appellants' failures to file timely notice of appeal operate as jurisdictional bars. In the past this Court has given ample authority for this proposition. See, e.g., Spaulding v. State Workmen's Compensation Commissioner, supra; Baker v. State Compensation Commissioner, supra. However, the question of jurisdiction has never been fully considered by this Court.

I

Two considerations immediately present themselves. The first is that a literal application of the jurisdictional rule as defined in syllabus point 1 of Sudraski v. State Compensation Commissioner, 116 W.Va. 441, 181 S.E. 545 (1935), ¹ would [170 W.Va. 774] preclude fraud, mistake, and the equitable principles of waiver and estoppel from tolling statutory time limitations. Such an extreme result, although it logically follows from the rule, has never been countenanced by this Court. We resolved this predicament by our holding in Lester v. State Workmen's Compensation Commissioner,

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161 W.Va. 299, 242 S.E.2d 443 (1978) rejecting the Sudraski rule. Thus a literal application of the "jurisdictional" theory has already been foreclosed by prior holdings.

Second, we note that the characterization of time periods as jurisdictional is a creation of this and other courts, and not usually the legislatures. With respect to appeals to this Court, the statutory language simply states that, "[f]rom any decision of the board ... an application for review may be prosecuted ... to the Supreme Court of Appeals within thirty days from the date thereof..." W.Va.Code, 23-5-4 [1945]. The statute is silent on jurisdiction.

The jurisdictional theory of time limitations arose from an early misconception of the nature of workmen's compensation statutes. In the early days of workmen's compensation it was necessary for compensation programs to appear voluntary in order to satisfy contemporary standards of constitutionality. ² Cases held that a claimant's right to "participate" in the compensation program depended on his satisfaction of statutory requirements. See, e.g., Moorefield v. State Compensation Commissioner, 112 W.Va. 229, 164 S.E. 26 (1932). Later cases recognized that the workmen's compensation system was a product of state police power and that "participation" was, in fact, compulsory. Lester, supra; Rogers v. State Compensation Commissioner, 140 W.Va. 376, 84 S.E.2d 218 (1954); Blevins v. State Compensation Commissioner, 127 W.Va. 481, 33 S.E.2d 408 (1945). The seeds had been sown, however, for an exclusive reading of statutory limitations and, in the rich soil of some now-discredited constitutional doctrines, they flourished.

The term "jurisdiction" was current in cases where the commissioner sought to reopen closed claims. See, e.g., Pauley v. State Compensation Commissioner, 111 W.Va. 456, 162 S.E. 891, 892 (1932); Burdette v. State Compensation Commissioner, 111 W.Va. 299, 161 S.E. 556, 557 (1931). It was also current because this Court was struggling to do justice under its original jurisdiction, namely by using writs of prohibition and mandamus, to review Workmen's Compensation decisions at a time when procedures in administrative law were enormously primitive. Butch v. State Compensation Commissioner, 112 W.Va. 493, 165 S.E. 672, (1932); Proffitt v. State Compensation Commissioner, 108 W.Va. 438, 151 S.E. 307 (1930). In most decisions concerning time limitations, language going to jurisdiction did not appear. The Court stated simply that compliance was "mandatory" or the decision "final and unappealable." Harris v. State Compensation Commissioner, 125 W.Va. 550, 25 S.E.2d 190 (1943); Cook v. State Compensation Commissioner, 113 W.Va. 370, 168 S.E. 369 (1933).

Where jurisdiction was mentioned, the Court was circumspect in its use of the term. In an early case where the issue of jurisdiction came before the Court we avoided the issue, observing that compliance was "mandatory," but excusing the claimant on the grounds that a technical flaw in the Commissioner's order prevented it from being final. Harris, supra. In a slightly later case the Court used "jurisdictional" in quotation marks, clearly a reluctant and qualified usage of the term. Stewart v. State Compensation Director, 150 W.Va. 103, 144 S.E.2d 327 (1965).

The rule of Sudraski, supra, was cited with approval and followed in Young v. State Workmen's Compensation Commissioner, 121 W.Va. 126, 3 S.E.2d 517 (1939) and its companion case Pridgen v. State [170 W.Va. 775] Workmen's Compensation Commissioner, 121 W.Va. 136, 3 S.E.2d 522 (1939). Although neither Sudraski, Young nor Pridgen actually used the term "jurisdictional," in Bowdler v. State Workmen's Compensation Commissioner, 124 W.Va. 629, 22 S.E.2d 359 (1942) the Court stated that "language ... that a dependent must file application within one year ... we have held to be jurisdictional," id., 124 W.Va. at 632-33, 22 S.E.2d at 632, and cited Young and Pridgen as authority for that proposition. This inartful identification of a strict view of statutory limitations with the jurisdiction of the

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Court has since been accepted in Spaulding v. State Workmen's...