Consentina v. State Compensation Com'r

• Decision Date: 26 September 1944
• Docket Number: 9612.
• Citation: 31 S.E.2d 499,127 W.Va. 67
• Parties: CONSENTINA v. STATE COMPENSATION COMMISSIONER et al.
• Court: West Virginia Supreme Court

31 S.E.2d 499

127 W.Va. 67

CONSENTINA v. STATE COMPENSATION COMMISSIONER et al.

No. 9612.

Supreme Court of Appeals of West Virginia.

September 26, 1944

Mahan Bacon & White, of Fayetteville, for appellants.

Mrs Lucile C. Jeter, of Charleston, for appellee.

ROSE, President.

Joe Consentina, by his counsel, under date of April 23, 1943 addressed a communication to the Workmen's Compensation Commissioner regarding the proceedings heretofore had upon a claim for additional compensation filed by him in 1937. In this communication it was stated that he, Consentina, had received an injury May 28, 1924, for which he was awarded compensation on the basis of 65% permanent partial disability, the last payment of which was made May 29, 1929 and that in 1937 an application by him for further compensation was rejected by the Commissioner on the ground that he had been fully compensated; but that the action rejecting the claimant's petition was defective and not final, in that it failed to state that the petitioner had thirty days in which to appeal therefrom, and because the claimant was not notified of such right, as required by statute.

The only demand or request made in the communication was as follows:

"The purpose of this letter is to now ask the Commissioner to comply with the law, as it should have been complied with at the time of the May 5, 1937 order."

To this communication the Commissioner replied, under date of May 1st, 1943, saying:

"A short time ago all of the claim files in this department--with a few exceptions covering cases prior to the 27th day of December, 1928--were destroyed. Inasmuch as we have no record of the procedure had in this claim I am, of course, unable to affirm or deny the allegations made by you.

It is the opinion of the Commissioner, however, not to disturb the rulings of former Commissioners when it appears that the claim is barred by the statute of limitations and, therefore, I regret to inform you that the prayer of your petition to the effect that this claim be reopened is denied.

If you desire to appeal from this ruling, you may do so within the statutory period."

On appeal, the Workmen's Compensation Appeal Board reversed the Commissioner by an order dated August 7, 1943, the pertinent part of whiech reads:

"*** it is adjudged, ordered and decreed that the order of the Commissioner as of the 1st day of May, 1943, be annulled, set aside and held for naught, that said cause be remanded to the Commissioner with direction to reopen said case and take evidence and develop said case relative to the notice complained of by the claimant, and such other testimony as may be desired, pertinent to the issue."

A hearing was had accordingly before the Commissioner, who, under the date of December 29, 1943, entered an order providing:

"*** that the claim remained closed upon a finding of facts that:

(a) the Commissioner has lost jurisdiction to reopen and consider this claim upon its merits for the reason that said application for reopening was not filed until after the time had expired for the filing of same as fixed by the Workmen's Compensation Law; (b) that proper showing for reopening of this claim was not made in that the evidence does not show that there was a progression or aggravation in the claimant's physical condition since the date of the last award to the claimant; (c) that the claimant has been amply and properly compensated for disability arising out of his injury by the awards heretofore granted him, and that any disability from which he may now be suffering beyond that covered by the said awards is due to causes other than his injury of May 28, 1924; ***."

Upon a second appeal, the Board of Appeals reversed the Commissioner, and ordered:

"*** that the order of the Commissioner as of December 29, 1943, be annulled, vacated, set aside and held for naught; that upon a review of the record the Board is of the opinion that the Commissioner's failure to advise the claimant in his notice of May 5, 1937, that he had thirty days in which to appeal his case, was not a final order, and said claim continued to remain open and the Commissioner continued to retain jurisdiction of this case, and the same being opened, active and pending before the Commissioner, the Act passed by the Legislature of 1939, did not apply to this case. That upon the rehearing of the same, the Board is of the further opinion, from a review of the evidence, that there was progression and aggravation of claimant's physical condition since the last award by the Commissioner shown, and that said claimant is now permanently and totally disabled. It is therefore adjudged and ordered that said cause be remanded to the Commissioner with direction to compensate the claimant from the date of the last payment under the previous award and to continue such compensation for the rest of his natural life."

The evidence at the hearing was directed to two questions: (1) Whether the claimant had been notified by the Commissioner that he had thirty days within which to appeal from the Commissioner's decision in 1937; and (2) whether, at the time of taking this evidence, there had been any aggravation and progression of claimant's injury.

The evidence relating to the proceedings before the Commissioner in 1937 could not come from the Commissioner's files or records, since these no longer existed. Secondary evidence of what was done became admissible. State v. Wright, 76 W.Va. 297, 85 S.E. 540; 22 C.J. 1005; 32 C.J.S., Evidence, § 807. Several letters from the Commissioner to the claimant's attorney were produced, as well as certain carbon copies of papers purporting to have been filed before the Commissioner. All these documents were conceded to be what they purported to be, and were admitted without objection.

From the files of Mr. Clay S. Crouse, the attorney who represented the claimant in the proceedings in 1937, is produced a carbon copy of the petition to the Commissioner, praying for the further award. This copy contains this paragraph:

"The claimant would further respectfully submit that by reason of his failure to place before the Commissioner medical evidence showing a disability greater than 65% (which said 65% disability award expired May 28, 1929) he is not entitled to compensation from May 28, 1929, up to the filing of this application but respectfully submits that he is, under the medical evidence offered in support of this application, entitled to an additional disability award and that payments on said additional disability award should begin as of the time this application and the medical evidence in support thereof is received by the Compensation Department."

The signature is in the form:

"Joe Cosentina

By ___, His Attorney"

Letters from the Compensation Department introduced show clearly that the petition was received and was proceeded on in regular course. On behalf of the employer, there is filed a carbon copy of a report by Dr. J. B. Banks, dated March 25, 1937, and one under date of April 29, 1937, made by Doctors Russel Kessel and Randolph L. Anderson jointly. These reports are addressed to the Compensation Commissioner and purport to have been made at his request.

A letter from the Compensation Commissioner to Mr. Crouse, dated May 5, 1943, from Mr. Crouse's files, reads as follows:

"This claimant has now been examined by the following well known physicians and surgeons:

Dr. Hugh A. Bailey, General Surgeon

Dr. Russel Kessel, General Surgeon The latter was a former Chief Medical Examiner of this department.

Dr. Randolph L. Anderson, well known Orthopedic Surgeon,

and by our Medical Advisers, Dr. J. B. Banks and Dr. William A. Thornhill, Jr.

"All of these examining physicians report that this claimant has been very fairly compensated by the award of 65% permanent partial disability and that he is not entitled to additional compensation rating. As you know, his award expired on May 29, 1929, and I feel that under the circumstances, I cannot consider re-opening of this claim. I have very carefully reviewed this entire claim, including all reports on file. I am always glad to review any competent medical evidence in such claims."

The claimant testified on his own behalf, but did not say, and was not asked, whether he had received notice from the Commissioner regarding the action taken on his claim in 1937, or whether he received notice that he had thirty days within which to appeal from said action. Mr. P. V. Sutherland, for ten years the chief of the claims department in the Commissioner's office, testified that in 1937 it was the practice that "any ruling made by the Commissioner at that time was conveyed to the claimant in a letter addressed to him, with copies going possibly to counsel of record and to other interested people, including the employer."

On the question of the aggravation and progression of the claimant's injury, Doctors H. A. Swart and R. L. Anderson were called as witnesses for the complainant. Dr. Swart, who first examined the complainant September 2, 1943, was of opinion that he was then totally and permanently disabled, but makes no statement that this condition is an aggravation or progression of his injury. Dr. Anderson, who examined the claimant on the same day, but without then recalling that he had also examined him in 1937, fixed his then permanent disability at 75%. On comparing his present finding with his report in 1937, he observed certain relatively small matters of progression which he attributes jointly to the claimant's injury and to his advanced years, stating that he is not able to apportion the result discovered between the two causes.

The award of compensation as for total disability, to begin at the date of the...