Baker v. State Compensation Commissioner, 10972
Citation | 103 S.E.2d 391,143 W.Va. 536 |
Decision Date | 16 June 1958 |
Docket Number | No. 10972,10972 |
Court | Supreme Court of West Virginia |
Parties | Walter C. BAKER v. STATE COMPENSATION COMMISSIONER and Island Creek Coal Company. |
Syllabus by the Court.
1. Under the provisions of Code, 23-5-1b, as amended, and Rule 1 of Rules of the Workmen's Compensation Appeal Board, promulgated and approved by this Court, pursuant to Code, 23-5-2, as amended, an appeal to the Workmen's Compensation Appeal Board from an adverse order of the State Compensation Commissioner must be perfected by filing notice of such appeal, on forms prescribed by the Workmen's Compensation Appeal Board, or similar thereto, with the State Compensation Commissioner within thirty days or receipt of notice of such adverse ruling.
2. The Workmen's Compensation Appeal Board is without jurisdiction to consider a purported appeal from an adverse ruling of the State Compensation Commissioner not filed with the State Compensation Commissioner in compliance with the provisions of 23-5-1b of the West Virginia Code, as amended, and the Rules of the Workmen's Compensation Appeal Board, as approved by this Court.
Franklin W. Kern, Holden, for appellant.
Patrick J. Flanagan, Welch, for appellee.
Island Creek Coal Company, hereinafter referred to as employer, appeals from an order of the Workmen's Compensation Appeal Board of February 7, 1958, reversing an order of the State Compensation Commissioner of August 9, 1957, holding that the claim of Walter C. Baker, claimant, was barred from further consideration by virtue of the provisions of Chapter 23, Article 4, Section 16 of the Code, as amended, and remanding the claim to the Commissioner for further consideration.
Claimant was injured in the course of his employment with the employer on May 2, 1955. The claim was held compensable, employer protested, and, after hearing, the compensability was affirmed. On April 20, 1956, claimant was awarded a five (5) per cent permanent partial disability for his injury, payable at the rate of $30 weekly from the date of injury. The balance due claimant was then $394.28, and a check for that amount, thus paying the claim in full, was issued by the Commissioner on April 23, 1956, and mailed to the employer for delivery to the claimant. It is undisputed that claimant did not receive the check until May 5, 1956.
Claimant, by letter dated April 20, 1957, which was received by the Commissioner on April 26, 1957, petitioned the Commissioner for a reopening and reconsideration of his claim, stating his condition had grown worse, He also stated that he was being examined by a physician and as soon as the physician's report was received it would be forwarded to the Commissioner in support of his petition for reopening. Such report, dated July 15, 1957, and recommending a fifteen per cent permanent disability rating, was received by the Commissioner on July 17, 1957.
On August 9, 1957, the Commissioner entered an order holding the claim barred from further consideration, inasmuch as more than one year had elapsed since the last payment under the previous permanent partial disability award, such order being transmitted by letter dated August 12, 1957. Counsel for claimant, by letter of August 22, 1957, requested the necessary appeal forms stating: 'This is to notify both the Compensation Commissioner and the Workmen's Compensation Appeal Board that the above named claimant, Walter C. Baker, hereby appeals to the Workmen's Compensation Appeal Board from the ruling of the Commissioner dated August 9, 1957, * * *.' The Commissioner, on August 27, 1957, sent the requested forms, the letter of transmittal stating: 'In accordance with the rules of the board, we are enclosing eight copies of formal notice of protest, seven of which must be filed with the Commissioner within thirty days from receipt of notice of the action complained of.' These forms were completed and returned by counsel for claimant under date of October 4, 1957.
As heretofore stated, the Appeal Board reversed the Commissioner and remanded the claim for further development, from which action the employer appeals.
Chapter 23, Article 4, Section 16, provides:
The statute imposing a time limitation upon the right of appeal to the Workmen's Compensation Appeal Board, from an order of the Commissioner refusing to reopen a...
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