Burgess v. State Comp. Comm'r
| Decision Date | 07 November 1939 |
| Docket Number | (No. 8987) |
| Citation | 121 W.Va. 571 |
| Court | West Virginia Supreme Court |
| Parties | Warnie Burgess v. State Compensation Commissioner,et al. |
1. Workmen's Compensation
The Workmen's Compensation Appeal Board is a factfinding body, and its rulings on questions of fact will not be set aside by this court unless they appear to be clearly wrong.
2. Workmen's Compensation
Where, prior to and up to the date when compensation is awarded or increased, a claimant has been actually employed and has received wages in excess of the amount he would have received as compensation during such period, had the same been awarded at the beginning thereof, the Compensation Commissioner or the Compensation Appeal Board may, in the discretion of either, in the order finding the character and percentage of disability and making an award or increase, provide that payments thereon shall begin at the date thereof.
Appeal from ruling of Workmen's Compensation Appeal Board.
Proceeding under the Workmen's Compensation Act, Code 1931, 23-1-1 et seq., by Warnie Burgess, claimant, opposed by the Koppers Coal Company, employer. From an award of the State Compensation Commissioner, the claimant appealed to the Compensation Appeal Board. From an order of the board finding claimant to be totally and permanently disabled, but refusing to direct that their payments under the order should commence as of the date of a previous award, the claimant appeals, and the employer cross-assigns error.
Affirmed.
Riley and Kenna, Judges, dissenting. Christie & Christie, for appellant.
Clarence W. Meadows, Attorney General, and Marlyn E. Lugar, Special Assistant Attorney General, for appellee Workmen's Compensation Appeal Board.
Sale, St. Clair & Sale, for appellee Koppers Coal Co.
Fox, President:
The claimant, Warnie Burgess, an employee of the Koppers Coal Company, suffered an injury in the course of and resulting from his employment, on September 8, 1933. He applied for compensation and received an award on a thirty per cent permanent partial disability basis, which was later increased to fifty per cent, the last payment under which was made on July 16, 1937. On April 2, 1938, claimant filed his petition asking that he be given a total and permanent disability rating. On July 19, 1938, the previous rating was continued but the percentage of disability was increased to seventy per cent, to which action of the Commissioner objection was made by the claimant, and a hearing had with the result that the seventy per cent award was "ratified and affirmed" by the Commissioner on March 21, 1939. On appeal to the Compensation Appeal Board the claimant was, on June 24, 1939, found to be totally and permanently disabled, and compensation directed to be paid on that basis, beginning as of the date of the entry of the order. It is the contention of the claimant that payments under this order should have commenced as of July 17th, 1937, immediately following the date when payments under the previous award ceased. It is obvious that under the order of the Appeal Board the claimant will receive no compensation for the period between July 16, 1937, and June 24, 1939.
The employer defends the action of the Appeal Board in directing payments under its award to begin on June 24, 1939; but by way of cross-assignment of error says the Appeal Board did not have authority to re-rate the disability resulting from the original injury, without evidence of substantial progression or aggravation thereof, and it is contended that no such evidence appears in the record.
Considering first the cross-assignment of error, we must bear in mind the repeated holdings of this court that the compensation statute must be given a liberal interpretation in order that its beneficient purposes may not fail through a strict construction of its terms. McVey v. C. & P. Tel. Co., 103 W. Va. 519, 138 S. E. 97; Caldwell v. Compensation Com'r., 106 W. Va. 14, 144 S. E. 568; Kincannon v. Compensation Com'r., 107 W. Va. 533, 149 S. E. 665; Bonner v. Compensation Com'r., 110 W. Va. 38, 156 S. E. 847; Vandall v. Compensation Com'r., 110 W. Va. 61, 62, 158 S. E. 499; Martin v. Compensation Com'r., lll W. Va. 420, 162 S. E. 486. Also, the rule no less well established that the Appeal Board is a fact-finding tribunal and that its findings will not be set aside by this court unless clearly wrong. Rasmus v. Workmen's Compensation Ap- peal Board, 117 W. Va. 55, 184 S. E. 250; Moore v. Appeal Board, 118 W. Va. 578, 191 S. E. 292. The record shows a serious spinal injury, the first award for which was for thirty per cent disability, later increased to fifty per cent. Within the statutory period a petition was filed asking that the case be reopened on the ground that his condition resulting from his injury had progressively grown worse, and stating the particulars thereof. Reports of physicians support the finding of total permanent disability, which in itself argues a change from his condition at the time the thirty and then fifty per cent disability was found by the Commissioner. Either his condition had progressively grown worse, or there should have been a finding of total permanent disability at the time the thirty and fifty per cent awards were made. We prefer to act on the assumption that the proper findings were made and that the condition of the claimant did grow worse after the dates of said awards. We cannot say that the holding of the Appeal Board on that question is clearly wrong, and, under the authority of the cases cited above, it must be affirmed.
The remaining question is whether the Appeal Board had the right to provide that the payments its ruling called for should begin with the date of its order instead of the date when payment on the last preceding award had ceased. The claimant relies on Code, 23-4-18, which provides:
"In all cases where compensation is awarded or increased, the amount thereof shall be calculated and paid from date of disability."
contending, as we understand, that his disability must be held to have existed at the time payments on his former award ceased. We do not think this necessarily follows. It is true one physician examined the claimant on July 21, 1937, shortly after the expiration of the former award, and suggested permanent total disability on the ground that he was not able to do manual labor; but his petition for compensation based on his present claim was not filed until April 4, 1938, some eight months later. He was examined by Dr. Straub on March 17, 1938, and by Dr. Laslie, a medical examiner for the Compensation Commissioner, on June 27, 1938; he was referred to Dr. Wilson, who reported a seventy per cent disability, and presumably, it was upon this report that the award of July 19, 1938, was made. Up to the date when the order of the Appeal Board was entered, June 24, 1939, the disability of the claimant was in dispute. The claimant declined to accept the increased award of July 19, 1938, and demanded a hearing and afterwards prosecuted an appeal. Under these circumstances, we think it can be said with reason that his disability was not ascertained, and could not be said to exist in legal effect, until the entry of the Appeal Board's order. If this be true, then the order of the Appeal Board did not violate the section of the statute quoted above.
It is not amiss to observe that, in practice, increased awards are made on the basis of present disability, and not that existing at date of injury, although, as a general rule, payments are made to begin at the date when payments on a previous award cease. In awards short of those based on total permanent disability the time when payments begin is not of controlling importance, because the limited number of payments will ultimately...
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