Cole v. State Workmen's Compensation Com'r

• Decision Date: 19 December 1980
• Docket Number: No. 14876,14876
• Court: West Virginia Supreme Court
• Parties: Bob L. COLE v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Westmoreland Coal Company.

Page 586

273 S.E.2d 586

166 W.Va. 294

Bob L. COLE v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Westmoreland Coal Company.

No. 14876.

Supreme Court of Appeals of West Virginia.

Dec. 19, 1980.

Syllabus by the Court

1. Once an award has been made, the claimant or the claimant's dependents are entitled to the benefit of all statutory amendments which become effective while the claim is pending.

2. A procedural modification of the Workmen's Compensation Law is beneficially applicable to all claims pending in litigation on the date the statute becomes effective.

Lawrence R. Frail, Beckley, for appellant.

Jackson, Kelly, Holt & O'Farrell, John L. McClaugherty and J. Randolph Query, Charleston, for appellees.

McGRAW, Justice:

This is an appeal from a final order of the Workmen's Compensation Appeal Board dated March 27, 1980 which affirmed the ruling of the Commissioner denying benefits to the dependents of the deceased claimant, Bob Cole.

The claimant was examined by the Occupational Pneumoconiosis Board (OPB) for occupational pneumoconiosis and in May of 1976 the OPB found that Cole had contracted occupational pneumoconiosis but that the disease had resulted in no functional impairment in his capacity to work. A protest was filed in June of 1976. In April of 1978, Cole died of cardiorespiratory arrest unrelated to his pneumoconiosis. Between the time of Cole's death and the protest hearing in November of 1978, an amendment to W.Va. Code § 23-4-6a ¹ took effect. That amendment authorizes twenty weeks of benefits for claimants suffering from occupational pneumoconiosis without impairment. Upon the protest hearing, the Commissioner ruled that the dependent survivors of the claimant could not receive the benefits authorized by the amendment because the claimant's death preceded the effective date of the amendment. The ruling was upheld by the Workmen's Compensation Appeal Board in March of 1980.

The question presented is whether the dependents of a deceased claimant suffering from pneumoconiosis without impairment are entitled to twenty weeks of benefits under W.Va. Code § 23-4-6a, as amended, where the amendment authorizing the benefits became effective after the claimant's death but before the ruling of the Workmen's Compensation Appeal Board. In light of our holding in Pnakovich v. State Workmen's Compensation Commissioner, W.Va., 259 S.E.2d 127 (1979) and for other reasons stated below, the answer is clearly yes.

In Pnakovich, supra, we held that:

W.Va. Code § 23-4-6a (1978) which provides that a claimant who has occupational pneumoconiosis with no measurable impairment may receive twenty weeks of benefits, is a procedural modification applicable to all claims pending before the Commissioner or the Appeal Board on the date the statute became effective, 1 July 1978. Syllabus, Pnakovich, supra.

No one questions that Cole's claim was pending before the Appeal Board on the effective date of the amendment or that the OPB had fixed the extent of his disability. The language of Pnakovich, when applied to the facts of the case at bar, would seem to compel the conclusion that the claimant's dependents are entitled to the benefits of the amendment. The Board contends, however, that because the claimant died before the effective date of the amendment authorizing twenty weeks of benefits, our holdings in Sizemore v. State Workmen's Compensation Commissioner, W.Va., 219 S.E.2d 912 (1975), and Charles v. State Workmen's Compensation Commissioner, W.Va., 241 S.E.2d 816 (1978), preclude us from applying the amendment in the instant case. Those cases hold that the rights of dependents are fixed at the date of death of the employee. After a review of the purposes of the date of death rule, we find that the Board erroneously applied the rule in this case.

The date of death of the claimant comes into play in two very different circumstances. One circumstance is where the dependents are seeking death benefits as a right independent from the employee's claim for disability benefits. The other circumstance involves those cases where the dependents are seeking benefits the employee would have received but for his death. This case involves the latter circumstance.

In Sizemore, supra, this court wrestled with the distinction between a claim for disability benefits filed by an employee and a claim of the employee's dependents for death benefits. Chief Justice Haden, writing for the court, held that a claim for death benefits under W.Va. Code § 23-4-10 ² is separate and distinct from an employee's claim for disability benefits. In the context of death benefits, Sizemore stated that because the dependent's rights to compensation do not arise until death, these rights cannot be fixed until they arise. "(A)s the dependent's rights are truly separate and distinct from the injured employee's rights, the date of death of the employee logically governs which statute is to be applied." Sizemore, supra at 915. Accordingly, a dependent's claim for death benefits, is governed by the law in effect at the time of death of the employee. Syl. Pts. 1 and 2, Sizemore, supra. Because we do not here deal with death benefits, Sizemore, supra, is inapplicable.

This concept of fixing rights as of the date of death was applied to claims involving derivative dependent's benefits in Charles v. State Workmen's Compensation Commissioner, supra. There the court held that W.Va. Code § 23-4-6(h), ³ which deems findings of the OPB an "award", would be applied to a claim filed before the effective date of the amendment. The amendment became effective before the claimant's death and while the claim was still pending before the Appeal Board. In holding that the widow could recover because the amendment was in effect at the date of the claimant's death, the court stated that the 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". (Footnote omitted). 241 S.E.2d at 818. In Charles, the date of death was a convenient time reference which, with the precedential value of Sizemore, provided a workable rationale for disposing of the erroneous ruling of the Appeal Board that the dependent's rights were fixed at the time of the filing of the claim. Charles, however, should not be mechanically applied.

The date of death rule, in its most usual application with derivative dependent's benefits attempts to resolve the problem of fixing the extent of a disability. To this end, the rule often revolves around the question of whether the deceased employee received an "award", or the equivalent, before his death. While the outcome of such an inquiry frequently turns on statutory variables, most jurisdictions hold that if a claim has been filed, but no award is made at the time of death, the death will not abate the claim. 2 Larson, Workmen's Compensation Law, § 58.40 (1976). While West Virginia seems, at this juncture, to require that an "award" be made pursuant to W.Va. Code § 23-4-6a before dependents may recover, see e. g., Hagy v. State Workmen's Compensation Commissioner, W.Va., 255 S.E.2d 906 (1979); Richmond v. State Compensation Commissioner, 136 W.Va. 234, 67 S.E.2d 39 (1951), other courts have criticized this view as unfairly providing the employer with a windfall because of the death of the employee before a formal award. Reed v. Industrial Commission of Arizona, 104 Ariz. 412, 454 P.2d 157 (1969); State Department of Motor Vehicles v. Richardson, 233 Md. 534, 197 A.2d 428 (1964); Cureton v. Joma Plumbing & Heating Co., 38 N.J. 326, 184 A.2d 644 (1962); Russo v. Wright Aeronautical Corp., 25 N.J.Misc. 109, 51 A.2d 100 (1947).

The question of when death precludes derivative benefits is often addressed in the context of determinations on permanent partial disability awards. According to Professor Larson, the death of the claimant before an award is made does not make the disability impossible to prove and should not result in defeating an award. Rather, the better approach "is to make the best possible medical estimate of the probable residual disability that would have remained if the employee had lived to complete his healing period". This approach has been adopted by courts with a view towards minimizing problems of proving the extent of disability while remaining true to the beneficent purposes of workmen's compensation. See, e. g., Bridges v. McCrary Stone Services, Inc., 48 N.C.App. 185, 268 S.E.2d 559 (1980); Wilhite v. Liberty Veneer Co., 47 N.C.App. 434, 267 S.E.2d 566 (1980). But see, County of Spotsylvania v. Hart, 218 Va. 565, 238 S.E.2d 813 (1977) wherein the court ruled that the dependent widow was not entitled to an award because her husband died before the end of his healing period.

Still other courts have seen fit to allow dependents to recover when no award has been made and in the face of statutes requiring that an award be made. In Powell v. Department of Labor and Industries, 79 Wash.2d 378, 485 P.2d 990 (1971), the court discussed statutory provisions which allowed a widow to receive total disability payments without an award but restricted the payment of permanent partial benefits to those situations where an award has been made prior to death.

We find no rational basis for an inference that the legislature, when it used the term award, meant to restrict the right of a widow whose husband suffered a permanent partial disability to receive payment of compensation which he would have received had he lived, to a greater degree than it restricted the right of a widow whose husband was totally disabled. Powell, supra, 79 Wash.2d at 384, 485 P.2d at 993.

A similar result was rendered in Snyder v. Wickwire Spencer Steel Co., 277 App.Div. 233, 98 N.Y.S.2d 1006 (1950), leave to appeal denied, 301 N.Y. 816, 95 N.E.2d 59 (1...