Colvin v. State Workmen's Compensation Com'r, 12923
| Decision Date | 23 June 1970 |
| Docket Number | No. 12923,12923 |
| Citation | 154 W.Va. 280,175 S.E.2d 186 |
| Parties | Matthew COLVIN v. STATE WORKMEN'S COMPENSATION COMMISSIONER, and United States SteelCorporation. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. While the powers of the State Workmen's Compensation Commissioner are granted and limited by pertinent statutes, and while a claimant has a right to receive benefits and the commissioner is authorized to award and to pay benefits to a claimant only as authorized by statute, the commissioner, in administering the workmen's compensation laws, has and may exercise, not only the powers expressly granted to him by statute, but also such additional powers of a procedural or administrative character as are fairly and reasonably implied as a necessary incident to the exercise of the powers expressly granted to him and the performance of the duties expressly imposed upon him by pertinent statutes.
2. The State Workmen's Compensation Commissioner is clothed with the power to exercise a reasonable discretion in determining whether good cause has been shown for granting a continuance of a hearing or a succession of continuances of hearings to a claimant who has protested a previous ruling of the commissioner. If, after having granted a succession of continuances to a claimant, the commissioner, in a reasonable exercise of his discretion, determines that the claimant has not shown good cause for an additional continuance and that the claimant, therefore, has not prosecuted his claim with reasonable diligence, the commissioner may refuse to grant to the claimant an additional continuance and may proceed to decide the case on the evidence before him or in the alternative, if the claimant has failed to present any proper evidence in support of his protest, the commissioner may disregard the protest and order that the claim be closed and terminated.
3. If, upon a protest by the claimant to a ruling of the State Workmen's Compensation Commissioner, a hearing is scheduled by the commissioner pursuant to such protest, and if, upon motion of the claimant the hearing is continued by the commissioner for good cause shown, the commissioner lacks authority thereafter to dismiss the protest and to terminate the claim without having afforded the claimant a reasonable opportunity to submit proper evidence; and if, in such circumstances, the commissioner proceeds to dismiss the protest and to terminate the claim, the action of the commissioner in doing so will be reversed and the case remanded to the commissioner with directions to afford the claimant a reasonable and proper opportunity to produce evidence in support of his protest and claim.
Campbell, Love, Woodroe & Kizer, George W. S. Grove, Jr., Charleston, for appellant.
Patrick Flanagan, Welch, for appellee.
This case is before the Court upon an appeal by the employer, United States Steel Corporation, from an order of the Workmen's Compensation Appeal Board which reversed an order of the State Workmen's Compensation Commissioner entered on July 8, 1969, and remanded the case to the commissioner for the taking of additional evidence.
The principal question presented for decision on this appeal is whether the Workmen's Compensation Appeal Board was in error in holding that the State Workmen's Compensation Commissioner exceeded his statutory authority in dismissing claimant's protest, and in directing that the claim be closed, on the ground that the claimant had failed to prosecute his claim diligently.
The claimant injured his back on November 11, 1959, when he stepped from a railroad car into a hole. He lost no time from his employment until July 21, 1960, when he recevied extensive treatment at Stevens Clinic Hospital in Welch. Dr. J. Hunter Smith of Stevens Clinic Hospital diagnosed his injuries as 'Radiculitis right sciatic nerve; Radiculitis of right ilioinguinal nerve; Probable herniated intervertebral disc.'
On October 11, 1960, the claim was determined to be compensable and on August 2, 1961, the claimant was granted a twenty-five percent permanent partial disability award. No protest was made by either party to the twenty-five percent award.
On June 25, 1963, the claimant applied for a reopening of his claim upon the basis of a medical report submitted by Dr. Lewis Wright indicating a progression of claimant's condition and recommending an additional fifteen percent award. The claim was reopened on August 1, 1963, and the claimant was referred to Dr. Russel Kessel for reexamination.
In Dr. Kessel's report dated August 15, 1963, he stated:
Following the receipt of the report from Dr. Kessel, the commissioner entered an order on August 22, 1963, holding that the claimant had been fully compensated by the twenty-five percent award of permanent partial disability. By a letter dated September 13, 1963, the claimant, by counsel, objected to the ruling of the commissioner. Thereafter sixteen separate hearings were set and continued by the commissioner without the claimant having submitted any medical evidence in support of his protest to the ruling of the commissioner that the claimant had been fully compensated by the twenty-five percent award.
Pursuant to the claimant's protest, a hearing was held at Welch, West Virginia, on January 31, 1964. No medical evidence was submitted in behalf of the claimant at that hearing. Counsel for the claimant then had the hearing continued to the Charleston, West Virginia, docket for the purpose of cross-examining Dr. Russel Kessel. Thereafter hearings were scheduled to be held at Charleston on April 10, October 13, and December 8, 1964; February 26, May 7, June 15, and August 27, 1965, all without any evidence having been offered. The hearing on May 7, 1965, was continued on motion of counsel for the employer and the hearings set for October 13, 1964, and August 27, 1965, were continued by the commissioner. The remaining four scheduled hearings were continued on motions of counsel for the claimant.
By a letter to the commissioner dated July 26, 1965, and received on July 27, 1965, counsel for the employer referred to the fact that it had been more than three years since the claimant received the final payment under the twenty-five percent award and formally moved that the commissioner 'reject the claimant's protest on the ground that he has failed to prosecute the same.' No action was taken by the commissioner in relation to the motion, but still another hearing was scheduled to be held in Charleston on September 21, 1965. At that hearing, the claimant called the commissioner's examiner, Dr. Russel Kessel, for cross-examination in relation to his report dated August 15, 1963. Dr. Kessel testified that there had been no progression or aggravation of the claimant's physical condition relative to his injury. Counsel for the claimant moved that the hearing be 'continued back to Welch * * *.' Counsel for the employer objected to further continuance, whereupon the examiner made the following statement: 'Now we will continue this claim to the next Welch docket, but future continuances in this claim will be scrutinized most carefully because of the undue delay.'
An additional hearing was scheduled to be held at Welch, approximately six months later, on March 15, 1966, but was continued on the motion of counsel for the claimant. By a letter to the commissioner dated March 11, 1966, counsel for the employer again reviewed the circumstances of the great delay in the proceedings, including a reference to the numerous hearings which had been scheduled without the claimant having submitted any medical evidence in support of his protest to the twenty-five percent award. The concluding paragraph of the letter is as follows: 'Therefore the employer again moves that claimant's protest be dismissed on the ground that he has failed to prosecute the same, and that your order of August 22, 1963, be affirmed.'
The commissioner made no formal ruling on the employer's motion, but additional hearings were scheduled to be held in Welch on November 22, 1966, and July 21, 1967, both of which were continued on motions of counsel for the claimant. After receiving notice of the second of these two continuances, counsel for the employer, in a letter to the commissioner dated July 18, 1967, again reviewed in detail the history of the case, emphasizing the numerous hearings which had been scheduled and continued without any medical evidence having been submitted by the claimant in support of his protest to the twenty-five percent award made almost four years previously. The concluding paragraph of the letter is as follows: 'Therefore, the employer renews its motion, previously made, that the claimant's protest be dismissed on the ground that he has failed to prosecute the same and that your order of August 22, 1963, be affirmed.' In a letter dated July 20, 1967, directed to counsel for the employer, a copy having been sent to counsel for the claimant, an attorney in the commissioner's legal division made the following statement:
'Please be advised that the Commissioner is of the opinion to overrule your motion at this time.
'By a copy of this letter to counsel for the claimant, this office is urging a final disposition and submission of the claim following the next available hearing which will be set on the Welch docket for September or early October, 1967.'
A hearing was scheduled to be held...
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