Cole v. State Compensation Com'r

• Decision Date: 18 April 1933
• Docket Number: 7597.
• Citation: 169 S.E. 165,113 W.Va. 579
• Parties: COLE v. STATE COMPENSATION COM'R.
• Court: West Virginia Supreme Court

169 S.E. 165

113 W.Va. 579

COLE v. STATE COMPENSATION COM'R.

No. 7597.

Supreme Court of Appeals of West Virginia.

April 18, 1933

Submitted April 11, 1933.

Syllabus by the Court.

Compensation commissioner, electing to investigate claim in which neither employer's report nor employee's application were timely filed, must dispose thereof on merits (Code 1931 23-4-15).

Compensation commissioner cannot arbitrarily require radical operation for hernia as condition precedent to right to compensation where operation would be unsafe to claimant.

Where facts are not sufficiently developed to enable compensation commissioner or court to arrive at merits of claim, case will be recommitted.

1. "The state compensation commissioner by electing to investigate the merits of a claim, in which neither the employer's report nor claimant's application were filed within six months after the alleged injury, thereby exercises the discretion given him by Code 1931, 23-4-15, to accept an application filed after the expiration of said six months' period, and must dispose of the claim upon its merits." Yeager v. State Compensation Commissioner (W. Va.) 167 S.E. 617.

2. The state compensation commissioner cannot arbitrarily require a radical operation for hernia as a condition precedent to the right to compensation for that injury, when the only proof before him on the question tends to show that such operation would be unsafe to claimant.

3. "Where the facts concerning a claim for compensation arising under the workmen's compensation act, are not sufficiently developed by evidence to enable the commissioner or the court to arrive at the real merits of the claim, an order may be entered here re-committing the case to the commissioner for further development." Bowling v. State Compensation Commissioner (W. Va.) 166 S.E. 9.

Proceedings under the Workmen's Compensation Act by George W. Cole to recover compensation for injuries sustained while working in the operation of the Ronda Coal Company. From a ruling of the State Compensation Commissioner denying compensation, the claimant appeals.

Reversed and remanded, with directions.

Ellison & Ellison, of Charleston, for appellant.

H. A Holt, Atty. Gen., and Kenneth E. Hines, Asst. Atty. Gen., for respondent.

KENNA Judge.

This appeal was granted from an order of the compensation commissioner refusing compensation to George W. Cole.

Cole was injured October 8, 1930, while working with his son in the operation of Ronda Coal Company. They were pushing a loaded car away from the face of the coal over a slight acclivity made by a buckle in the track. The son slipped, and in holding the car, the father claims that he was forced to his knees and so severely strained that he was rendered sick and dizzy. Thereafter according to his testimony, although he continued his employment intermittently, he was unable to work and earn as before. A hernia developed.

The company reported the injury under date of August 22, 1931. On August 29, 1931, the doctor of the company filed his report and the claimant's claim came in. Formal blanks were sent out by the commissioner September 3, 1931, and in the communication transmitting them the date of the injury was recited, showing that the commissioner's action was taken with knowledge of the expiration of the six months' limitation. On September 24, l931, an order was entered in the commissioner's office refusing compensation because of the fact that the statutory limitation of six months had expired before the claim was filed. This ruling of the commissioner was objected to by the claimant under date of October 1, 1931. On October 29, 1931, a communication signed by the secretary of the commissioner and addressed to the claimant stated that the claim had been refused, not because of the expiration of the six months' limitation, but because of the fact that the claimant had not undergone the radical operation for hernia required by the statute. On June 8, 1932, the assistant secretary of...