Burr v. State Compensation Commissioner

• Decision Date: 26 November 1963
• Docket Number: No. 12210,12210
• Parties: John F. BURR v. STATE COMPENSATION COMMISSIONER and Union Carbide Corporation.
• Court: West Virginia Supreme Court

Page 636

132 S.E.2d 636

148 W.Va. 17

John F. BURR v. STATE COMPENSATION COMMISSIONER and Union Carbide Corporation.

No. 12210.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 10, 1963.

Decided Oct. 8, 1963.

Rehearing Denied Nov. 26, 1963.

Syllabus by the Court

1. 'The State Compensation Commissioner has no power or jurisdiction to vacate, set aside or modify a final order made by him, except in the instances specifically provided by statute.' Cottrell v. State Compensation Commissioner, et al., 145 W.Va. 336, Point 1 Syllabus .

2. Where the state compensation commissioner, prior to any final hearing, as provided for in Code, 1931, 23-5-1, as amended, enters an order based on a doctor's report by which he holds that the claimant has sustained no degree of permanent disability as a consequence of an occupational disease and is entitled to no benefits other than benefits previously paid to him on a temporary basis; and where, after proper notice in writing by the commissioner to the claimant stating the time allowed for filing an objection to such finding, the claimant fails, within thirty days, after receipt of such notice, to object in writing to such finding; such order is conclusive on the proposition of the absence of permanent disability in relation to evidence or facts upon which such finding is made; and such finding cannot be reexamined or changed by the commissioner unless upon a reopening supported by a showing of progression, aggravation or some other fact or facts which were not theretofore considered by the commissioner in his former findings, and which would entitle such claimant to greater benefits than he has already received.

3. Where the state compensation commissioner makes an award of compensation to a claimant merely on a temporary basis and, following a subsequent hearing, denies benefits on a permanent basis, the claimant, pursuant to the provisions of Code, 1931, 23-4-16, as amended, is entitled to apply to the commissioner for further adjustment of his claim within three years after payments for the temporary disability shall have ceased.

4. The Workmen's Compensation Appeal Board is a fact finding body, and its rulings on questions of fact will not be reversed or set aside by this Court unless clearly wrong.

Franklin W. Kern, Charleston, for appellant.

Benjamin D. Tissue, South Charleston, for appellees.

CALHOUN, Judge.

This case is before the Court on appeal from an order of the Workmen's Compensation Appeal Board which affirmed an order of the state compensation commissioner (now the director of workmen's compensation) by which he held that the claimant, John F. Burr, had sustained no permanent injury as a consequence of an occupational disease arising from his employment by Union Carbide Corporation.

During the course of the claimant's employment by Union Carbide Corporation, there developed a condition in the left vestibule of his nose which was subsequently diagnosed by physicians as a nasal fissure resulting from his exposure to certain fumes or other irritants which are characteristic of the chemical industry in which he was employed.

The claimant first applied for compensation on January 24, 1957, stating in his application that he was thirty-five years of age and that he had been employed in Union Carbide Corporation's plant at South Charleston for sixteen years.

On April 9, 1957, the commissioner referred the claimant to the Occupational Diseases Medical Board which reported on April 18, 1957, its findings that the claimant was suffering from an occupational disease known as nasal fissure; that his condition was first noticed by the claimant about November, 1955; that the condition arose from the employment; and that the condition disabled the claimant intermittently from continuing his regular employment during the period from March 9, 1956, until February 15, 1957, at which time he had not returned to work. These findings were not objected to by either the claimant or the employer and hence all such findings on medical questions became 'plenary and conclusive' pursuant to Code, 1931, 24-4-8f, as amended.

On May 3, 1957, the commissioner ordered that the claimant be paid from March 9, 1956, until he was certified as being able to resume his employment, and that thereafter the claim would be closed on a 'temporary total basis.' Accordingly, the claimant was paid on a temporary total basis for 44 2/7 weeks.

On July 26, 1957, the claimant requested an examination to determine whether he was entitled to a permanent disability rating. The commissioner thereupon referred him to Dr. J. A. B. Holt, who examined the claimant. Dr. Holt's report was as follows:

'This patient has reached the maximum degree of improvement and does not need any treatment at present. However, we prescribed an antihistimine and Neo-delta-cortef ointment for him to apply before going to work and being exposed to the fumes. If with the two medications he still has difficulty we feel it will be necessary for him to refrain from working in the environment.

'In our opinion this patient has no permanent disability.'

By an order dated August 23, 1957, the commissioner ruled 'that no permanent partial disability, in excess of that paid to you on a total temporary basis, has resulted from your injury * * * and therefore, no further award of compensation will be made.' The commissioner's order concluded: 'Either party has thirty days from the receipt of this letter within which to file objection with the Commissioner to this finding.' No protest or objection was interposed.

On September 10, 1958, twelve months and eighteen days after the commissioner's order or finding of August 23, 1957, the claimant wrote a letter to the commissioner in which he stated: 'I would like to request that my claim, be reopened. * * * Enclosed you will find a report from Dr. Holt.' Dr. Holt's report, which accompanied the application for reopening, did not report any new fact or facts which had not theretofore been considered. It did not expressly state that there had been any progression or aggravation of the claimant's previous condition, but it did state that there 'is some increased nasal discharge but no evidence of malignancy.' The report stated that medication previously prescribed had 'improved him somewhat'. In relation to the claimant's condition, the report stated: 'We feel it should probably be checked every few months for observation of any malignant change. He is advised to keep the area coated with an ointment but the only other alternative that we see is for him to change jobs.'

It may be questionable whether the claim for reopening was supported by a showing of progression, aggravation or any new fact or facts not previously considered. The commissioner, nevertheless, reopened the claim and referred the claimant to Dr. W. F. Shirkey for examination. In his report, dated November 13, 1958, Dr. Shirkey did not indicate that there was any progression, aggravation or new fact not previously considered but stated that the claimant had told him that he had not reported for work for 2 1/2 months. The report concluded as follows:

'EXAMINATION OF NOSE: Examination revealed fissure along the vestibule of the right side of the tip of the nose. There is some irritation and dryness of the anterior nares of both sides. There is no evidence of malignant changes. I consider this an occupational disease.

'RECOMMENDATION: I recommend that he change his occupational environment. This change is necessary to prevent recurrence of this condition. I think he should keep up the local application of the ointment as prescribed by Dr. Holt.

'I do not recommend any permanent partial disability but I do recommend a change in occupation.'

Following Dr. Shirkey's report, the commissioner, on November 14, 1958, entered an order stating 'that no permanent partial disability, in excess of that paid * * * on a total temporary basis has resulted from your injury * * * and no further award of compensation will be made.' The claimant protested, a hearing was had at which the claimant testified, and the commissioner, on February 19, 1960, affirmed his prior ruling of November 14, 1958, thereby holding again that the claimant had suffered no permanent partial disability as a consequence of his injury.

On the same date, November 14, 1958, the commissioner notified the claimant that he should not...