Conovas v. Ott, (No. 6687)

• Court: Supreme Court of West Virginia
• Writing for the Court: MAXWELL, J.
• Citation: 108 W.Va. 397
• Parties: Frank Conovas v. Lee Ott, State CompensationCommissioner
• Decision Date: 14 January 1930
• Docket Number: (No. 6687)

108 W.Va. 397

Frank Conovas
v.
Lee Ott, State CompensationCommissioner

(No. 6687)

Supreme Court of Appeals of West Virginia.

Submitted January 8. 1930.
Decided January 14, 1930.

[108 W.Va. 397]

1. Master and Servant Compensation Commissioner's Finding is Not Applicable, Unless It Goes to Basis of Claimant's or Employer's Right (Code, c. 15P, § 43, as amended by Acts 1929, c. 71).

Under section 43, Chapter 15P, Code, as amended by section 43, Chapter 71, Acts of 1929, a finding of the State

[108 W.Va. 398]

Compensation Commissioner is not appealable unless it goes to the basis of the claimant's or employer's right, (p. 399.)

2. Same Initial Finding of Compensation Commissioner is Not

Applicable, but Only His Order Based on Rehearing is Applicable (Code, c. 15P, § U3, as amended by Acts 1929, c. 71).

Under said section there cannot be an appeal from such initial finding by the Commissioner, but it may be objected to by employer, employee or dependent within ten days after receiving notice thereof, whereupon it becomes the duty of the Commissioner to grant a rehearing, and from his order predicated on such rehearing an application may be made to this Court for an appeal, (p. 399.)

3. Same Compensation Coinmissioner's Fact Finding, Based,

on Substantial Evidence and Not at Variance With Plain Preponderance of Whole Evidence, Will Not be Reversed.

A finding of fact by the State Compensation Commissioner based on substantial evidence, not at variance with a plain preponderance of the whole evidence, will not be reversed on appeal, (p. 401.)

(Workmen's Compensation Acts, C. J. § 127, p. 122, N. 40.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Proceeding under the Workmen's Compensation Act by Frank Conovas, claimant, for injury received while in the employ of West Virginia Coal & Coke Company. From a decision of the State Compensation Commissioner denying further compensation, complainant appeals.

Affirmed.

England & Ritchie, for appellant.

Howard B. Lee, Attorney General, R. Dennis Steed, Assistant Attorney General, and Chas. D. Smith, for respondents.

Maxwell, Judge:

Frank Conovas prosecutes this appeal to a finding of the State Compensation Commissioner denying him further compensation because of an injury received in the course of his employment.

On the 16th of February, 1929, petitioner was injured while in the employ of the West Virginia Coal & Coke Company

[108 W.Va. 399]

in a mine at Omar, this state. He was awarded compensation on a basis of thirty per centum disability. After the expiration of one hundred and twenty weeks which covered the period during which he was paid compensation under said award, he filed before the State Compensation Commissioner a claim for further compensation on the ground of permanent total disability. This claim was disallowed by order of the Commissioner August 5, 1929. Thereafter the claimant sought to have the case re-opened and reconsidered. Supplemental testimony was offered. On November 20, 1929, the Commissioner refused further compensation and closed the case. This appeal was awarded soon thereafter.

A serious question arises at the outset. The statute allows appeals to this Court from findings of the State Compensation Commissioner only as to matters which go to the basis of a claimant's or employer's right with reference to the former's claim for compensation. Acts 1929, Chapter 71, section 43. Whether an adverse finding on a supplemental claim of total permanent disability, after a percentage rating had been made to the claimant, goes to the basis of the...