Calloway v. State Compensation Com'r

• Decision Date: 15 November 1932
• Docket Number: 7489.
• Citation: 166 S.E. 700,113 W.Va. 47
• Parties: CALLOWAY v. STATE COMPENSATION COMMISSIONER.
• Court: West Virginia Supreme Court

166 S.E. 700

113 W.Va. 47

CALLOWAY v. STATE COMPENSATION COMMISSIONER.

No. 7489.

Supreme Court of Appeals of West Virginia.

November 15, 1932

Submitted November 1, 1932.

Syllabus by the Court.

Compensation commissioner, who received, filed, and investigated claim not filed within time, could not refuse hearing, where employer failed to report injury (Code 1931, 234-15, 23-5-1).

Where the state compensation commissioner has received, filed, and investigated an application for compensation not filed with him within six months from the date of injury to the employee, and not reported by the employer under 23-4-15 Code 1931, he cannot refuse the applicant a full hearing on the merits because the application was not filed within the above statutory period.

Mandamus proceeding by G. H. Calloway against the State Compensation Commissioner.

Writ granted.

Ira J Partlow, of Welch, and Samuel A. Christie, of Keystone, for relator.

H. B Lee, Atty. Gen., and R. Dennis Steed, Asst. Atty. Gen., for respondent.

LIVELY J.

Petitioner seeks to compel the state compensation commissioner to grant him a hearing for compensation for an alleged injury received by him on September 24, 1929. The commissioner, after investigation, refused a hearing because the application had not been filed within six months from the date of the injury.

Petitioner alleges that on the above date he was an employee of the Empire Coal & Coke Company in McDowell county, a subscriber to the workmen's compensation fund, as a meat cutter in one of its stores; and, while conveying some meat from the refrigerator to a cutting block, he stumbled and his hand was caught and injured between the meat and the block, which injury later caused paralysis, incapacitating him from any work.

No notice of the injury was communicated to the commissioner until April, 1932, when petitioner's attorney, by letter reported it, and asked for blanks for making a claim for compensation. He was promptly answered that the claim could not be heard because application had not been made therefor within six months from the time of the alleged injury. The commissioner later wrote counsel that he made a thorough search of the files of his office and no record could be found of a report of an injury, and asked for information as to how the injury occurred, and stated that he would give the matter further consideration. On April 27, 1932, counsel advised the commissioner of the injury, how it occurred, in whose employ the petitioner was at the time, and its nature and extent, and asked for blanks for making a formal application. The commissioner replied that he would not forward forms for application until after receipt of a report of the injury, and that he was at that time taking the matter up with the employer, and that, as soon as a report was made from the employer, forms would be forwarded. On May 4, 1932, the attorney again requested forms, and was answered by the commissioner on May 12th that he made an investigation of the matter and was in doubt if the petitioner could establish an injury, and at the same time inclosed a blank application for compensation. The application was made out and sworn to by petitioner and sent to the commissioner on May 23, 1932; and, on September 1st following the commissioner, by letter, advised petitioner that his claim was refused on the ground that it was not proven that his disability was due to an injury. Petitioner objected...