Chaney v. State Comp. Comm'r., (No. 9674)

• Decision Date: 06 March 1945
• Docket Number: (No. 9674)
• Citation: 127 W.Va. 521
• Court: West Virginia Supreme Court
• Parties: Hillary Chaney v. State CompensationCommissioner et al.

127 W.Va. 521

Hillary Chaney

v.State Compensation

Commissioner et al.

(No. 9674)

Supreme Court of Appeals of West Virginia.

Submitted January 10, 1945.

Decided March 6, 1945.

1. Workmen's Compensation

The Workmen's Compensation Appeal Board has no authority to enter a nunc pro tunc order.

2. Workmen's Compensation

Where a final order was made and entered at a regular session of the Workmen's Compensation Appeal Board, and at a subsequent regular session the first order was set aside and another order substantially different was made and entered as of the date of the first order, the latter order is void for lack of jurisdiction.

Appeal from Workmen's Compensation Appeal Board.

Proceedings under the Workmen's Compensation Act by Hillary Chaney, claimant, employee, against the State Compensation Commissioner and others. From an order of the Workmen's Compensation Appeal Board for payment to claimant of an additional 15 per cent permanent partial disability, the Youngstown Mines Corporation, employer, appeals.

Reversed and remanded.

Chas. L. Estep, for appellant. Ira P. Hager, for appellees.

LovIns, President:

This appeal comes to this Court on petition of claimant's employer. The validity of an order entered by the Workmen's Compensation Appeal Board on October 7, 1944, is the sole question presented.

Claimant, Hillary Chaney, was employed as a coal loader by Youngstown Mines Corporation, and in the course of such employment on October 11, 1940, suffered a simple fracture of the bones of his left leg near the ankle. Compensation benefits were paid claimant on a total temporary basis until June 8, 1941. Shortly after the cessation of such payments, claimant resumed his former employment, but on account of the effect of his injuries later ceased work.

Thereafter he was examined by physicians at the direction of the commissioner, and was awarded compensation benefits on the basis of a ten per cent permanent partial disability. On objection by claimant, and after a hearing held pursuant to statute, the award above mentioned was on April 14, 1942, increased to twenty-five per cent, and claimant was notified of such increase. In ordinary course, the last payment of the twenty-five per cent award should have been made on or about September 13, 1942, but the record is not clear as to the exact date of such payment. However, claimant on September 29, 1942, made application for further adjustment of his claim, which, being refused, claimant filed his objection to the commissioner's finding, and another hearing was held. Upon completion of the hearing the commissioner on March 25, 1944, affirmed his former order and refused further adjustment of the claim. The pertinent portion of the order entered by the commissioner denying additional compensation reads as follows:" * * * and the claim is, therefore, to remain closed upon a finding of fact that with the payment of compensation heretofore made herein upon a 25% permanent partial basis, the claimant has been amply compensated for any disability arising out of his injury of October 11, 1940; * * *." But in a letter addressed to claimant and his employer signed by the secretary of the commissioner purporting to quote the commissioner's order, the prior award on a permanent partial basis is erroneously set forth as fifteen per cent. After the finding of the commissioner last mentioned, claimant appealed to the Workmen's Compensation Appeal Board. In the notice of appeal filed by claimant, it is erroneously stated that the commissioner had awarded compensation benefits on the basis of fifteen per cent permanent partial disability, although at the time the award of twenty-five per cent was made claimant was correctly informed by the commissioner of the amount of the award.

The Workmen's Compensation Appeal Board entered an order at its June, 1944, session, by which the commissioner's order of March 25, 1944, was set aside and the claim remanded to the commissioner with directions to pay claimant on a basis of twenty-five per cent permanent partial disability, from which order no appeal was taken. Upon remand of the claim, the commissioner in July, 1944, entered an order closing the claim for the reason that claimant had been paid a twenty-five per cent permanent partial disability award, in accordance with the order of the board.

On October 7, 1944, the Workmen's Compensation Appeal Board entered an order reading in part as follows:

"This cause came on again to be heard upon the record certified to the Appeal Board by the State Compensation Commissioner on the 31st day of May, 1944, and upon the order of the Board entered on the 10th day of June, 1944, in which it vacated the Commissioner's order of March 25, 1944, and remanded said cause to the Commissioner with direction to pay the claimant upon a 25% partial permanent disability basis. On consideration whereof, the Board is of opinion that an error was made in its order of June 10, 1944, in that the claimant had on December 6, 1941, been awarded a 10% permanent partial disability, and on April 14, 1942, an additional award of 15% was made, making a total award of 25% paid the claimant for the disability complained of, it does hereby vacate its said order of June 10, 1944. And the Board being of the opinion that the claimant is entitled to an additional award of 15%, it is adjudged and ordered that the order of the Commissioner as of March 25, 1944, affirming his order of October 29, 1943, be annulled, set aside and held for naught; that said cause be remanded to the Commissioner with direction to pay the claimant on a 40% disability basis, charging him with all amounts heretofore paid to him by the Commissioner. And this shall be certified to the Commissioner.

"This order should have been entered at the June 1944 Session of the Board, and is entered now for then."

The question here for decision relates to the jurisdiction of the Workmen's Compensation Appeal Board, and it is therefore unnecessary to consider claimant's present physical condition.

Employer contends that the appeal board was without jurisdiction to enter the order above quoted, the June session of said board having ended, and the orders entered thereat having become final; and that even if jurisdiction existed no such order could be entered in the absence of notice to the employer.

Instances in which nunc pro tunc orders and decrees may be entered by a court of record having general jurisdiction are aptly classified as follows: "The cases calling for the exercise...