Bowdler v. State Comp. Comm'r.

• Decision Date: 22 September 1942
• Docket Number: (No. 9350)
• Court: West Virginia Supreme Court
• Parties: Eleanor Bowdler, Widow, etc. v. State CompensationCommissioner et al.

124 W.Va. 629

Eleanor Bowdler, Widow, etc.

v. State CompensationCommissioner et al.

(No. 9350)

Supreme Court of Appeals of West Virginia.

Submitted September 2, 1942.

Decided September 22, 1942.

Workmen's Compensation

Where an employee has been awarded compensation for third stage silicosis and dies more than one year after his last injurious exposure to silicon dioxide dust, an application filed by the widow of such employee, following his death, for benefits from the silicosis fund on behalf of herself and infant children, is properly rejected by the Compensation Commissioner under Chapter 79, Section 9(a), Acts West Virginia Legislature, 1935. and an order of the Workmen's Compensation Appeal Board granting benefits to such dependents is erroneous.

Appeal from Workmen's Compensation Appeal Board.

Proceeding under the Workmen's Compensation Act by Eleanor Bowdler, claimant, for the death of Percy G. Bowdler, her husband, opposed by the Homer Laughlin China Company, employer. From an order of the appeal board reversing an order of the Compensation Commissioner denying compensation, and awarding monthly benefits to the widow and infant children, the employer appeals.

Reversed and remanded.

Blue, Dayton & Campbell, for appellant. James G. Jeter, Jr., for appellee.

Riley, Judge:

On June 17, 1940, Percy G. Bowdler was awarded compensation under Chapter 79, Acts West Virginia Legislature, 1935, for third stage silicosis. The date of his last exposure to silicon dioxide dust in harmful quantities was November 27, 1939, and more than one year thereafter (August 9, 1941,) he died. Decedent's widow, Eleanor Bowdler, on September 3, 1941, filed application on behalf of herself and two infant children for benefits, and the Appeal Board having reversed an order of the Compensation Commissioner, which denied compensation thereon, and having awarded monthly benefits to the widow and infant children, the employer, The Homer Laughlin China Company, obtained an appeal from such order.

Denial of compensation by the Commissioner was predicated upon Section 9 of said act, which provides, in part, as follows:

"(a) To entitle any employee to compensation for silicosis under the provisions hereof, the application therefor must be made on a form or forms prescribed by the commissioner and filed in the office of the commissioner within one year from and after the date of the last injurious exposure to silicon dioxide dust, or in case of death, the application shall be filed as aforesaid by the dependent of such employee within one year from and after the date of the last injurious exposure to silicon dioxide dust."

The position of the employer is that the quoted provision is jurisdictional and that no widow or dependent is entitled to compensation in a fatal case unless death ensues within one year from the date of the last exposure. The contention of claimant is that there is no requirement that both the claimant and the widow (and dependents) should file a claim within the one-year period but that the statute requires only alternative action and, when the deceased employee filed application for benefits within the one-year period, it was unnecessary for the widow to file her application within such time.

This is the initial consideration by this Court of the issue here presented.

In Jones v. Rinehart & Dennis Co., 113 W. Va. 414, 168 S. E. 482 (1933), disease contracted in the course of and resulting from employment was characterized as noncompensable under the compensation act, "unless directly attributable to a definite, isolated, fortuitous occurrence"; and the period within which actions for such non-compen- sable diseases had to be brought was "one year next after the right to bring the same shall have accrued, and not after." Scott v. Rinehart & Dennis Co., 116 W. Va. 319, 180 S. E. 276 (1935). Chapter 79, Acts West Virginia Legislature, 1935, was enacted for the purpose of "providing compensation for disability, disablement or death resulting from silicosis." A primal and pertinent inquiry is, who is entitled to benefits under the statute? Section 5 directs disbursement of the silicosis fund to employees who "shall have contracted silicosis in this state in the course of and resulting from their employment, or to the...