Cook v. Comp. Comm'r

• Decision Date: 21 February 1933
• Docket Number: (No. 7558)
• Citation: 113 W.Va. 370
• Court: West Virginia Supreme Court
• Parties: James Cook v. Compensation Commissioner

113 W.Va. 370

James Cook

v.Compensation Commissioner

(No. 7558)

Supreme Court of Appeals of West Virginia.

Submitted February 14, 1933.

Decided February 21, 1933.

Master and Servant

Code 1931, 23-4-16, providing that "no further award may be made * * * in cases of non-fatal injuries, except * * * within one year after the commissioner shall have made the last payment in any permanent disability case" does not confer jurisdiction on the compensation commissioner to re-open claims on petitions filed after the expiration of said one-year period.

Original proceeding in mandamus by James Cook against the State Compensation Commissioner.

Writ denied.

England & Kvtchie, for relator.

H. B. Lee, Attorney General, and R. Dennis Steed, Assistant Attorney General, for respondent.

Woods, Judge:

James Cook, who, on December 21, 1929, had his left ankle crushed in a slate fall, was granted a 20% partial permanent disability rating, the payments under the award expiring July 10, 1931. After much importuning on the part of the claimant, beginning within the year following the last payment, the commissioner finally refused to consider a petition, and attached exhibits, filed on January 3, 1933, on the ground that his jurisdiction in the premises was at an end. Citing Code 1931, 23-4-16. Thereupon, the present petition in mandamus was presented to this court, praying that the commissioner be required to grant claimant a hearing, as provided in Code 1931, 23-5-1.

In the case of Bonner v. Commissioner, 110 W. Va. 38, 156 S. E. 847, this court held: "When the State Compensation Commissioner has passed upon a claim and later proper representations are made to him of a progressive and aggravated condition of the injury not considered by him at his finding, he should reopen the case, provided his jurisdiction thereof has not ended." To like effect: Yacomolish v. Commissioner, 110 W. Va. 79, 157 S. E. 45. In the foregoing cases, the injuries occurred prior to the passage of the act of 1929. In the Bonner ease, the court said: "Code, 1923, chapter 15P, section 40, expressly confers on the commissioner continuing jurisdiction over each case, with the power to make from time to time such modifications of former findings as may be justified. This jurisdiction is not impaired by the amendment of 1929, as to cases originating prior to the amendment. Jenkins v. Commissioner, 107 W. Va. 287, 148 S. E. 117."

It appears from the record that on November 8, 1932, additional ex parte evidence...