Bounds v. State Workmen's Compensation Com'r, No. 12885

• Court: Supreme Court of West Virginia
• Writing for the Court: CALHOUN
• Citation: 172 S.E.2d 379,153 W.Va. 670
• Parties: James BOUNDS v. STATE WORKMEN'S COMPENSATION COMMISSIONER, and Riverton Coal Company.
• Docket Number: No. 12885
• Decision Date: 17 February 1970

Page 379

172 S.E.2d 379 153 W.Va. 670 James BOUNDS
v.
STATE WORKMEN'S COMPENSATION COMMISSIONER, and Riverton Coal Company. No. 12885. Supreme Court of Appeals of West Virginia. Submitted Jan. 28, 1970.
Decided Feb. 17, 1970.

Page 380

Syllabus by the Court

1. The right to workmen's compensation benefits is created wholly by statute. Under the workmen's compensation statutes of this state, a claimant has a right to receive benefits and the workmen's compensation commissioner may pay benefits to a claimant only as authorized by statute.

2. 'Where the language of a statute is plain and unambiguous, there is no basis for application of rules of statutory construction; but courts must apply the statute according to the legislative intent plainly expressed therein.' Point 1 Syllabus, Dunlap v. State Compensation Director, 149 W.Va. 266, (140 S.E.2d 448.)

3. 'The word 'shall', in the absence of language in the statute showing a contrary intent on the part of the legislature, should be afforded a mandatory connotation.' Point 2 Syllabus, Terry v. Sencindiver, W.Va. (171 S.E.2d 480) (decided December 16, 1969).

[153 W.Va. 671] 4. Under the provisions of Subdivision (i), Section 6, Article 4 of Chapter 23, Code, 1931, as amended, prior to an amendment thereof by the legislature in 1969, in a case in which the claimant, as a consequence of a compensable injury to a finger, received a 'statutory award' of 4% For partial loss of the finger by surgical severance and an additional award of 2% For other disability resulting from the same injury, the claimant previously having been paid temporary total benefits for the injury in excess of the 2% Award, the state workmen's compensation commissioner had a mandatory, nondiscretionary duty to treat the 2% Portion of the award as having been paid by the temporary total benefits previously paid to the claimant and a like mandatory, nondiscretionary duty to treat the 4% Portion of the award as not having been paid to the claimant by temporary total benefits previously paid to him.

5. 'This Court will not reverse a finding of fact made by the Workmen's Compensation Appeal Board unless it appears from the proof upon which the appeal board acted that the finding is plainly wrong.' Syllabus, Hosey v. Workmen's Compensation Commission, 151 W.Va. 172, (151 S.E.2d 729).

Toney E. Cline, Charleston, for appellant.

Spilman, Thomas, Battle & Klostermeyer, W. Victor Ross, Charleston, for appellees.

CALHOUN, Judge.

This workmen's compensation case is before the Court on appeal by James Bounds, the claimant, from an order entered on September 10, 1969, by the Workmen's Compensation Appeal Board which affirmed an order entered on June 6, 1969, by the State Workmen's Compensation Commissioner by which the commissioner made a 6% Award of permanent partial disability benefits to the claimant for an

Page 381

injury received by him on October 4, 1965, [153 W.Va. 672] during the course of and as a result of his employment by the Riverton Coal Company.

The injury received by the claimant consisted of a comminuted fracture of a portion of the distal phalanx and a comminuted fracture of a portion of the middle phalanx of the little or fourth finger of the right hand. The injury also caused a traumatic severance of a portion of the distal phalanx of the same finger. The treating physician reduced the fractures and restored the severed portion of the finger by means of sutures. The finger later became infected, as a consequence of which the claimant was admitted to Charleston General Hospital on October 21, 1965, for treatment. He was discharged from the hospital on November 1, 1965.

Upon subsequent medical examination of the injured finger, it was determined that surgical amputation was necessary and consequently on December 13, 1965, the finger was surgically amputated at a point within the middle phalanx. The claimant returned to work on January 24, 1966, after having received payment of temporary total disability benefits for a period of sixteen weeks commencing on the date of the injury.

On June 13, 1966, the commissioner made a 5% Award to the claimant for the amputation. That award was protested by the employer on the ground that 4% Constituted a correct statutory award for the amputation. The claimant also protested the 5% Award on the ground that it did not adequately compensate the claimant for the injury.

On July 1, 1966, the commissioner entered an order by which he set aside the 5% Award and made an award of 4% Permanent partial disability benefits for the amputation. The record does not disclose that the 4% Award was protested either by the claimant or by the employer. A letter to the commissioner dated August 20, 1966, written by the attorney then representing the claimant, stated that the claimant thereby withdrew his protest to the order of the commissioner which made an award of 5% And his subsequent corrective order making an award of [153 W.Va. 673] 4%, and requested that the attorney's letter be...