Butch v. State Comp. Comm'r., (No. 7406)

CourtSupreme Court of West Virginia
Writing for the CourtLIVELY, J.
Citation112 W.Va. 493
PartiesJohn Butch v. State Compensation Commissioner et al.
Docket Number(No. 7406)
Decision Date13 September 1932

112 W.Va. 493

John Butch
v.
State Compensation Commissioner et al.

(No. 7406)

Supreme Court of Appeals of West Virginia.

Submitted September 7, . 1932.
Decided September 13, 1932.

(Rehearing denied October 17, 1932)


[112 W.Va. 493]

Master and Servant Mandamus

Where the state compensation commissioner has made an award which goes to the basis of the claim for compensation, there must be objection to his award within ten days from the receipt of the notice of his award, else his award becomes final under Official Code, 23-5-1; and mandamus will not lie to compel the setting aside of such award made final by the statute.

Original proceeding in mandamus by John Butch against the State Compensation Commisioner.

Ellison & Ellison, for relator.

Howard B. Lee, Attorney General, and B. Dennis Steed, Assistant Attorney General, for respondents.

[112 W.Va. 494]

Lively, Judge:

The relator, John Butch, prays for manadamus against the state compensation commissioner to compel him to set aside his final order of April 18, 1932, and to hear his evidence on application for increased compensation.

Relator was working in the coal mine of the Guyan Eagle Coal Company and was injured by a slate fall on April 14,

1930. He was sent to a hospital in the city of Logan and was examined by Dr. Brewer of that hospital who made a diagnosis of his injuries and reported them to be a fracture of the right ramis and ischium; and fractures of the great toe and other toes of the right foot. His great, second and third toes of his right foot were amputated and treatment given to the injury to back and pelvis. On August 11, 1930, claimant made application for compensation. In March,

1931, Dr. Brewer reported the result of his treatment of claimant which he described, and reported satisfactory results, stating that Butch complained of pains in his back, that he walked with an odd limp, and complained of pains in his foot; and suggested that he be called before the department for a determination of disability to the claimant's back. Dr. Lambert was directed to x-ray claimant's pelvis and made a report of his examination on October 16, 1931, stating that there was a transverse fracture of right ischium and that the bones had healed in slight abnormal position and that the x-ray showed no evidence of disease of the osseous tissue. Dr. Lawson also examined the claimant and made a report to the commissioner on October 9, 1931, in which he described the injury and the treatment, saying the treatment had proven satisfactory and that the claimant's condition then was good and that he was able to return to work. He again made a report to the commissioner on October 15, 1931, again describing the injuries and treatment, stating that the present condition of the claimant was good; that he was able to return to work and that further hospitalization and surgery would not improve his condition, nor lessen his disability. These reports of Dr. Lawson were received before the x-ray examination was ordered to be made by Dr. Lambert who reported as stated above. However, on March 7, 1931, the

[112 W.Va. 495]

claimant's petition for compensation was passed upon and he was awarded compensation for 72 weeks at $12.60 per week, which the commissioner found awardable under an eighteen per cent, disability. This compensation was paid, the last payment being September 6, 1931, when the case was closed. On December 24, 1931, Butch was again examined by the compensation department physician, who reported the injury to the right foot, showing upon the re-examination that he had a fracture of the pelvis in the area of the right ischium which had healed and was then causing no difficulty and in fair position and that the pelvis was causing no difficulty; that the...

To continue reading

Request your trial
7 practice notes
  • Perrine v. E.I. Du Pont De Nemours And Co., No. 34333
    • United States
    • Supreme Court of West Virginia
    • March 26, 2010
    ...it has waived its right to contest the issue of an allocation of punitive damages by the circuit court. See Butch v. State Comp. Comm'r, 112 W.Va. 493, 498, 165 S.E. 672, 674 (1932) (“The petition for rehearing now states the fact to be that the letter containing the protest was actually fi......
  • Bailey v. SWCC, Nos. 15479
    • United States
    • Supreme Court of West Virginia
    • June 24, 1982
    ...decisions at a time when procedures in administrative law were enormously primitive. Butch v. State Compensation Commissioner, 112 W.Va. 493, 165 S.E. 672, (1932); Proffitt v. State Compensation Commissioner, 108 W.Va. 438, 151 S.E. 307 (1930). In most decisions concerning time limitations,......
  • Cottrell v. State Compensation Commissioner, No. 12014
    • United States
    • Supreme Court of West Virginia
    • June 21, 1960
    ...v. State Page 156 Compensation Commissioner, 113 W.Va. 576, 169 S.E. 170; [145 W.Va. 340] Butch v. State Compensation Commissioner, 112 W.Va. 493, 165 S.E. 672; Yacomolish v. State Compensation Commissioner, 110 W.Va. 79, 157 S.E. The evidence on which the order of May 14, 1959, was based, ......
  • Perrine v. E.I. du Pont de Nemours and Company, No. 34333 (W.Va. 6/2/2010), No. 34333.
    • United States
    • Supreme Court of West Virginia
    • June 2, 2010
    ...it has waived its right to contest the issue of an allocation of punitive damages by the circuit court. See Butch v. State Comp. Comm'r, 112 W. Va. 493, 498, 165 S.E. 672, 674 (1932) ("The petition for rehearing now states the fact to be that the letter containing the protest was actually f......
  • Request a trial to view additional results
7 cases
  • Perrine v. E.I. Du Pont De Nemours And Co., No. 34333
    • United States
    • Supreme Court of West Virginia
    • March 26, 2010
    ...it has waived its right to contest the issue of an allocation of punitive damages by the circuit court. See Butch v. State Comp. Comm'r, 112 W.Va. 493, 498, 165 S.E. 672, 674 (1932) (“The petition for rehearing now states the fact to be that the letter containing the protest was actually fi......
  • Bailey v. SWCC, Nos. 15479
    • United States
    • Supreme Court of West Virginia
    • June 24, 1982
    ...decisions at a time when procedures in administrative law were enormously primitive. Butch v. State Compensation Commissioner, 112 W.Va. 493, 165 S.E. 672, (1932); Proffitt v. State Compensation Commissioner, 108 W.Va. 438, 151 S.E. 307 (1930). In most decisions concerning time limitations,......
  • Cottrell v. State Compensation Commissioner, No. 12014
    • United States
    • Supreme Court of West Virginia
    • June 21, 1960
    ...v. State Page 156 Compensation Commissioner, 113 W.Va. 576, 169 S.E. 170; [145 W.Va. 340] Butch v. State Compensation Commissioner, 112 W.Va. 493, 165 S.E. 672; Yacomolish v. State Compensation Commissioner, 110 W.Va. 79, 157 S.E. The evidence on which the order of May 14, 1959, was based, ......
  • Perrine v. E.I. du Pont de Nemours and Company, No. 34333 (W.Va. 6/2/2010), No. 34333.
    • United States
    • Supreme Court of West Virginia
    • June 2, 2010
    ...it has waived its right to contest the issue of an allocation of punitive damages by the circuit court. See Butch v. State Comp. Comm'r, 112 W. Va. 493, 498, 165 S.E. 672, 674 (1932) ("The petition for rehearing now states the fact to be that the letter containing the protest was actua......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT