Blosser v. State Comp. Comm'n

• Decision Date: 07 December 1948
• Docket Number: (No. 10073)
• Citation: 132 W.Va. 112
• Court: West Virginia Supreme Court
• Parties: Earl Blosser v. State Compensation Commission, et al.

132 W.Va. 112

Earl Blosser

v.State Compensation Commission, et al.

(No. 10073)

Supreme Court of Appeals of West Virginia.

Submitted September 1, 1948.

Decided December 7, 1948.

1. Jurisdiction

A question involving the jurisdiction of the State Compensation Commissioner of a proceeding, which is not presented by any party by assignment of error or brief of counsel but which fairly arises on the record, will be considered and determined by this Court on its own motion on appeal.

2. Jurisdiction

The provision of Section 16, Article 4, Chapter 23, Code, 1931, as amended and reenacted by Section 16, Article 4, Chap- ter 131, Acts of the Legislature, 1945, Regular Session, relating to the continuing jurisdiction of the State Compensation Commissioner over each case, that no further award may be made "in case of nonfatal injuries * * * * except within three years after payments for temporary disability shall have ceased and within one year after the commissioner shall have made the last payment in any permanent disability case," properly construed, means that the three year period of limitation of jurisdiction applies only to a nonfatal case involving a claim for temporary disability which continues and remains on that basis, and not to a nonfatal case in which there is an award of permanent disability after temporary disability has been awarded and payments for temporary disability have ceased, and that the one year period of limitation of jurisdiction applies only to a nonfatal case in which permanent disability is awarded and paid whether there has or has not been prior award and payment for temporary disability.

3. Compensation Award

Under the provisions of Sections 1-c and 1-d, Article 5, Chapter 137, Acts of the Legislature, 1939, Regular Session, an application in writing by an employer for modification of an award previously made to his employee, supported by affidavits whose statements are not controverted and which disclose that after an award of compensation on the basis of permanent total disability the employee has been regularly employed for several months in the performance of heavy manual labor of the character ordinarily performed only by able bodied men in normal physical condition, is sufficient and entitles the employer to have the case reopened and a hearing held by the commissioner upon the question presented by the application of modification of the previous award.

Appeal from Workmen's Compensation Appeal Board.

Proceeding-under the Workmen's Compensation Act, by Earl Blosser, claimant, opposed by the Bethlehem Collieries Company, formerly Industrial Collieries Corporation, employer, wherein the claimant was awarded compensation for permanent total disability. From an order of the Workmen's Compensation Appeal Board affirming an order of the State Compensation Commissioner refusing to reopen the case and to modify the award, the employer appeals.

Reversed and remanded with directions.

Amos & Amos and Robert W. Lowe, for appellant. Louis D. Meisel, for appellee.

Haymond, Judge:

This is an appeal by the employer, Bethlehem Collieries Company, formerly Industrial Collieries Corporation, from an order of the Workmen's Compensation Appeal Board of April 10, 1948, affirming an order of the State Compensation Commissioner of January 6, 1948, refusing to reopen a case in which its employee, Earl Blosser, was awarded permanent total disability on July 3, 1946. The commissioner denied the application of the employer to reopen the case and modify the award under Sections 1-c and 1-d, Article 5, Chapter 137, Acts of the Legislature, 1939, Regular Session, on the ground that a proper showing to reopen the case had not been made by the application of the employer. Upon the petition of the employer this appeal was granted by this Court on May 24, 1948.

The employee, Earl Blosser, on October 16, 1939, when thirty six years of age and while working for his employer, Industrial Collieries Corporation, in its mine No. 21, at Dellslow, West Virginia, was seriously injured in attempting to escape contact with a derailed mine car. He was caught between the moving car and a nearby rib or pillar in the mine. Both of his legs were skinned and bruised from his knees to his hips, his right femur was fractured about six inches above his right knee and his thumb on his left hand was dislocated. His right leg did not respond to treatment and, after having been placed on a temporary total disability basis, which confined for seventy eight weeks, he was awarded twentyfive per cent permanent partial disability on April 24, 1941. After an examination and a report of a physician, made at the request of the commissioner, an additional award of twenty per cent which increased the previous award to forty five per cent permanent partial disability was made on November 7, 1941. The examining physi- cian reported severe disability of the claimant due to his shortened leg accompanied by angulation of the femur and advised an operation which the claimant declined to undergo. Upon successive applications of the claimant, which were supported by proof, his permanent disability rating was increased by additional awards to fifty five per cent on October 19, 1943, sixty five per cent on January 28, 1944, eighty five per cent on January 17, 1945, and finally to permanent total disability which, under the statute, entitles the claimant to compensation for the remainder of his life. Compensation for life on the basis of permanent total disability was awarded on July 3, 1946, and continuing payments are now being made to the claimant. In connection with that award, the examining physician reported, with respect to the condition of the claimant, that he had a marked deformity from his injury; that his leg could not be straightened; that amputation of the leg might produce a moderate degree of rehabilitation; and that because of his mental attitude concerning his condition, he was totally incapacitated to return to work. The physician recommended that the claimant be given a rating of ninety per cent permanent partial disability.

The employer did not protest or object to the making of any of the foregoing awards in favor of the employee.

On November 8, 1947, the employer informed the commissioner by letter that Blosser had been employed by the State Road Commission since May 7, 1947, suggested that the situation be investigated, and applied for a modification of the award made July 3, 1946. By order entered December 2, 1947, the commissioner refused to modify the award. The employer then asked the commissioner to suspend his order of December 2, 1947, to enable the employer again to submit its application with affidavits and other documents and to direct the employee to undergo a physical examination by a physician. The commissioner by letter dated December 18, 1947, refused the request for a physical examination until a proper showing had been made for modification of the award and advised the employer that modification could be requested at any time but that the application must disclose some fact or facts which had not been considered by the commisioner in his former findings.

On December 27, 1947, the employer again made application in writing for modification of the award of July 3, 1946, which, application was supported by four affidavits to the effect that Blosser had been regularly employed by the State Road Commission in the performance of heavy manual labor as a member of a road maintenance crew, and contained an additional request that he be required to submit to a physical examination by a physician. By order entered January 6, 1948, the commissioner refused to reopen the case on the ground that no proper showing to reopen had been made. The employer appealed from this decision of the commissioner to the Workmen's Compensation Appeal Board which, by order entered April 10, 1948, affirmed the order of the commissioner of January 6, 1948.

A preliminary question which has not been presented by any of the parties by assignment of error or briefs of counsel, arises on the record with respect to the continuing jurisdiction of the State Compensation Commissioner in this case under the provisions of Section 16, Article 4, Chapter 131, Acts of the Legislature, 1945, Regular Session, which section amends and reenacts Section 16, Article 4, Chapter 23, Code, 1931, as amended. The question was raised in conference by some members of the Court. As the question is jurisdictional in character, it will be considered and resolved by this Court on its own motion on this appeal. Whited v. State Compensation Commissioner, 131 W.Va. 646, 49 S.E. 2d 838; Gapp v. Gapp, 126 W.Va. 847, 30 S.E. 2d 530; Morris v. Gates, 124 W.Va. 275, 20 S.E. 2d 118; Dawson v. Dawson, 123 W.Va. 380, 15 S.E. 2d 156; Charleston Apartments Corporation v. Appalachian Electric Power Company, 118 W.Va. 694, 192 S.E. 294; Arnold v. Mylius, 87 W.Va. 727, 105 S.E. 920; Buskirk v. Ragland, 65 W.Va. 749, 65 S.E. 101; Thompson v. Adams, 60 W.Va. 463, 55 S.E. 668; Cresap v. Kemble, 26 W.Va. 603; Kemble v. Cresap, 26 W.Va. 603.

The pertinent portion of the statute is in this language: "The power and jurisdiction of the commissioner over each case shall be continuing, and he may from time to time, after due notice to the employer, make such modifications or changes with respect to former findings or orders as may be justified: Provided, however, That no further award may be made * * * in case of nonfatal injuries on and after March seventh, one thousand nine hundred twenty-nine, except within three years after payments for temporary disability shall have ceased and within one year after the commissioner shall have made the last payment in any permanent disability case: * * *."

The important aspect of the jurisdictional question is whether in this case the limitation of the three year period after the payments to the employee, Earl Blosser, for his temporary disability ceased, which...