Charles v. State Workmen's Compensation Com'r

• Decision Date: 07 March 1978
• Docket Number: Nos. 14017 and 14018,s. 14017 and 14018
• Citation: 161 W.Va. 285,241 S.E.2d 816
• Court: West Virginia Supreme Court
• Parties: Violet CHARLES v. STATE WORKMEN'S COMP. COMMR., and Eastern Associated Coal Corp. Violet TACKETT v. STATE WORKMEN'S COMP. COMMR., and Union Carbide Corp.

Page 816

241 S.E.2d 816

161 W.Va. 285

Violet CHARLES v. STATE WORKMEN'S COMP. COMMR., and Eastern Associated Coal Corp.

Violet TACKETT v. STATE WORKMEN'S COMP. COMMR., and Union Carbide Corp.

Nos. 14017 and 14018.

Supreme Court of Appeals of West Virginia.

March 7, 1978.

Syllabus by the Court

1. "A workmen's compensation statute in effect at the date of an injured employee's death governs the deceased employee's dependents' claims for death benefits." Point 2, Syllabus, Sizemore v. State Workmen's Compensation Com'r, W.Va., 219 S.E.2d 912 (1975).

2. "A law is not retroactive merely because part of the factual situation to which it is applied occurred prior to its enactment; only when it operates upon transactions which have been completed or upon rights which have been acquired or upon obligations which have existed prior to its passage can it be considered to be retroactive in application." Point 3, Syllabus, Sizemore v. State Workmen's Compensation Com'r, W.Va., 219 S.E.2d 912 (1975).

George G. Burnette, Jr., Charleston, for appellants.

Shaffer, Theibert, Ikner & Schlaegel, R. L. Theibert, Madison, for appellee (Eastern Associated).

Benjamin D. Tissue, Legal Division, Carbide, South Charleston, for appellee (Union Carbide).

HARSHBARGER, Justice:

These actions are appeals from two separate orders of the Workmen's Compensation Appeal Board denying appellants, Mrs. Violet Charles and Mrs. Violet Tackett, payment of the unpaid balances of permanent partial awards for occupational pneumoconiosis disability suffered by their deceased husbands, George Charles and James Tackett. There are no factual disputes.

Mr. Charles and Mr. Tackett had filed claims and had been determined by the Workmen's Compensation Commissioner to be eligible for benefits. Both had been rated as to percent of disability by the Occupational Pneumoconiosis Board and both men died thereafter, before the Commissioner's formal award was made.

In Ferguson v. State Workmen's Compensation Commissioner, 152 W.Va. 366, 163 S.E.2d 465 (1968), this Court held that a widow was not entitled to receive her husband's workmen's compensation pneumoconiosis benefits if he died after his claim was filed but before the Commissioner made the award of benefits. The case interpreted W.Va.Code, 23-4-6(f) ¹ as of 1968.

Later, our legislature amended Code, 23-4-6 to modify the Ferguson decision, and provided that what had theretofore been an intermediate step in Workmen's Compensation procedure the Occupational Pneumoconiosis Board's ruling on the medical questions in each "black lung" case would have the force and effect of the Commissioner's award for purposes of establishing dependents' entitlement. ²

The obvious purpose of the amendment was to allow dependents to receive a deceased employee's benefits where, as was often the case, the internal workmen's compensation procedure was so burdened and lengthy that many claimants died before a final Commissioner's award was made. ³

The act making the OPB findings an award became effective after Mr. Charles and Mr. Tackett filed their claims, but before they died. However, the Workmen's Compensation Appeal Board held that their widows' rights to recover the accrued employees' benefits were fixed by the law in effect when the employees filed: old 23-4-6 as interpreted in Ferguson.

Appellants contend that their claim is governed by Sizemore v. State Workmen's Compensation Com'r, W.Va., 219 S.E.2d 912 (1975), in which we held that the workmen's compensation statute in effect on the date of the injured employee's death, not that in effect on the date of his injury, governs his dependents' claim for death benefits under Code, 23-4-10. ⁴ The Appeal Board declined to apply Sizemore to these claims, reasoning:

We have considered the exact issue raised in this claim on several prior occasions . . . In our prior opinion, we held that the statute in effect on the date of last exposure controls and governs an occupational pneumoconiosis claim; that when the date of last exposure for the deceased employe(e) was prior to the enactment of the present provisions of Code 23-4-6(h), the statutory revisions were not applicable in the claims since amendments could not be applied retroactively in a Workmen's Compensation claim ; and, therefore, denied payment of benefits to dependents on the strength of the findings of the Occupational Pneumoconiosis Board standing alone . . . (W)e were of the opinion and still remain of the opinion that the decision of Sizemore v. Commissioner, Supra (sic ) is not applicable as contended by the claimant widow in this claim . . . (T)he widow or dependent claim (23-4-10) is separate and apart from the claim of the deceased employee and does not involve accrued benefits which would have been payable to the deceased employee had he died after the entry of a final order. (Emphasis added.)

In Sizemore, Chief Justice Haden wrestled with prior inconsistent rulings by this Court about application of workmen's compensation laws as of date of injury or date of death. The resulting rule was succinctly stated in syllabus 2:

A workmen's compensation statute in effect at the date of an injured employee's death governs the deceased employee's dependents' claims for death benefits.

We see no reason to...