Carbon Fuel Co. v. State Comp. Comm'r.

• Decision Date: 01 March 1932
• Docket Number: (No. 7292)
• Citation: 111 W.Va. 639
• Court: West Virginia Supreme Court
• Parties: Carbon Fuel Company v. State CompensationCommissioner et al.

111 W.Va. 639

Carbon Fuel Company
v.
State Compensation
Commissioner et al.

(No. 7292)

Supreme Court of Appeals of West Virginia.

Submitted February 23, 1932.
Decided March 1, 1932.

[111 W.Va. 639]

Master and Servant

The limitation in section 40, chapter 71, Acts 1929, to the effect that no further award may be made in cases of non-fatal injuries, except within one year after the commissioner shall have made the last payment in any permanent disability case is not retroactive in its operation and does not affect the continuing jurisdiction of the commissioner in cases which had their origin prior to its enactment.

Original proceeding by the Carbon Fuel Company for a writ of prohibition prayed to be directed to the State Compensation Commissioner to restrain payment of a compensation award to John New.

Writ denied.

Hillis Townsend, for petitioner.

Howard B. Lee, Attorney General, and B. Dennis Steed, Assistant Attorney General, for respondent State Compensation Commissioner.

U. S. Albertson, for respondent John New.

Woods, Judge:

Petitioner seeks to invoke prohibition against payment, by the compensation commissioner, of an award, dated January 8, 1932, to John New, claiming in support of the writ that the

[111 W.Va. 640]

commissioner's jurisdiction over the claim had long since expired, by virtue of the limitation set out in section 40, chapter 71, Acts 1929.

Claimant was injured in 1925; an award of 45% disability was entered in 1927, payments expiring thereunder May 20, 1929; an additional award of 5% was entered on October 3, 1929, expiring October 7, 1929; in February, 1931, claimant was sent before a doctor for an X-ray of his pelvis; after a prolonged hearing, held on objection by petitioner herein to a proposed additional award of 25%, an award of 5% (payment of which is now sought to be prohibited) was made.

Section 40 of the original compensation statute, chapter 9, Acts 1915 (Code 1923, chap. 15-P, sec. 40), provided that: "The power and jurisdiction of the commissioner over each case shall be continuing, and he may from time to time, after due notice to the employer, make such modifications or change with respect to former findings or orders with respect thereto as in his opinion may be justified." That...