Conovas v. State Compensation Com'r

• Decision Date: 14 January 1930
• Docket Number: 6687.
• Citation: 151 S.E. 309,108 W.Va. 397
• Parties: CONOVAS v. STATE COMPENSATION COMMISSIONER et al.
• Court: West Virginia Supreme Court

151 S.E. 309

108 W.Va. 397

CONOVAS v. STATE COMPENSATION COMMISSIONER et al.

No. 6687.

Supreme Court of Appeals of West Virginia.

January 14, 1930

Submitted January 8, 1930.

Syllabus by the Court.

Under section 43, c. 15P, Code, as amended by section 43, chap ter 71, Acts of 1929, a finding of the State Compensation Commissioner is not appealable, unless it goes to the basis of the claimant's or employer's right.

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 10 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.

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.

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 claimant appeals. Affirmed.

England & Ritchie, of Charleston, for appellant.

Howard B. Lee, Atty. Gen., R. Dennis Steed, Asst. Atty. Gen., and Chas. D. Smith, of Parsons, for respondents.

MAXWELL J.

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 in a mine at Omar, this state. He was awarded compensation on a basis of 30 per centum disability. After the expiration of 120 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 reopened 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, c. 71, § 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 claimant's right within the meaning of the statute, need not here be decided, because, even conceding for purposes of discussion that such an order is appealable, there remains as an effective barrier to petitioner's claim the adverse finding of the Commissioner based on an issue of fact, which finding, being well founded in evidence, we cannot disturb.

The said section of the recent statute above cited provides that a finding of the Commissioner shall be final unless the employer, employee, or dependent, shall within 10 days after receiving from the Commissioner notice of his finding object thereto, whereupon the Commissioner shall set a time for a further hearing and shall give notice thereof to the parties in interest. The statute then provides: "After said hearing the action of the commissioner affirming, reversing or modifying his former action shall be final; provided however, that the claimant or the employer may, within ninety days after notice of the final action of the commissioner apply to the supreme court of appeals for a review of the record and such decision." It is to be noted that there is no appeal from the first finding. Only the subsequent finding is appealable, and it must have been made not only after objection to the first finding, but after notice by the Commissioner to the parties in interest of the time of the second hearing. This statute was under consideration in the case of State ex rel. Meeks v. State Compensation Commissioner, 108 W.Va. --, 150 S.E. 230 231, wherein it is stated: "It will be noted that the changes contemplated in this amendment are procedural. They merely provide for a further development of the case by the commissioner before appeal to this...