Cottrell v. State Compensation Commissioner

CourtSupreme Court of West Virginia
Citation145 W.Va. 336,115 S.E.2d 153
Decision Date21 June 1960
Docket NumberNo. 12014,12014
PartiesHarry T. COTTRELL v. STATE COMPENSATION COMMISSIONER and Union Carbide Corporation.

Page 153

115 S.E.2d 153
145 W.Va. 336
Harry T. COTTRELL
v.
STATE COMPENSATION COMMISSIONER and Union Carbide Corporation.
No. 12014.
Supreme Court of Appeals of West Virginia.
Submitted April 13, 1960.
Decided June 21, 1960.

Syllabus by the Court

1. The State Compensation Commissioner has no power or jurisdiction to vacate, set aside or modify a final order made by him, except in the instances specifically provided by statute.

2. An order made by the State Compensation Commissioner, though final, may be interpreted and applied in accordance with clear evidence on which it is based, where its meaning is doubtful, or where there exists therein a latent or patent ambiguity.

Page 154

[145 W.Va. 337] James G. Jeter, Jr., Charleston, for appellant.

Benjamin D. Tissue, South Charleston, for appellee.

GIVEN, Judge.

This appeal is from an order of the Workmen's Compensation Appeal Board, made on the 10th day of December, 1959, which affirmed an order of the State Compensation Commissioner made on the 15th day of July, 1959. The order of the commissioner which is affirmed attempted to set aside, vacate and annual an order made by the commissioner on the 14th day of May, 1959, from which order no appeal was sought.

Claimant, Harry T. Cottrell, suffered a compensable injury on January 6, 1954, for which he was ultimately paid a twenty five per cent permanent partial disability, the last payment therefor having been made January 22, 1956. More than a year later, February 4, 1957, claimant suffered a second injury, somewhat in the nature of the first, and his claim for compensation therefor was timely filed. In the second claim the commissioner first held the injury not compensable, but the injury was ultimately held compensable and the claimant was, by the commissioner, referred to a physician for an examination, who recommended 'an award of 10% permanent partial disability for this man's injury of February 4, 1957'. Claimant, on motion of the employer, was then by the commissioner referred to three physicians for further examination.

One of the three physicians, after mentioning in his report the effects of each injury, was of the 'opinion the permanent partial disability is 35 per cent', but did not indicate what percentage of the disability resulted from the second injury. Another of the physicians, to whom claimant was referred on motion of [145 W.Va. 338] the employer, recommended 'an award for 10% permanent partial disability attributable to this

Page 155

injury', meaning the second injury. The other physician gave an opinion that 'in addition to the 25% p. p. d. already granted this claimant has an additional 10% p. p. d. and I attribute this to aggravation that has occurred since his original injury'. The claimant offered no evidence, but agreed that the matter be submitted on the evidence detailed.

The commissioner then entered the order of May 14, 1959, which granted claimant a '35% permanent partial disability award, less any compensation heretofore paid'. The self insured employer did not object to the entry of the order but, after having been directed by the commissioner to pay the thirty five per cent award, and after the expiration of thirty days from the entry of the order, objected to making the payment, contending that the intention of the order of May 14, 1959, was that the amount of the twenty five per cent award for which payment had theretofore been made should be deducted from the amount of the thirty five per cent award. The commissioner, without any notice to claimant, reconsidered the matter and entered the order of July 15, 1959, which reads: 'This claim came on again to be considered this 15th day of July, 1959, upon the entire record, particularly upon the Commissioner's ruling of May 14, 1959; upon consideration of all of which, it is hereby ordered and directed that the aforesaid ruling of May 14, 1959, be and the same is hereby set aside, vacated and annulled, it appearing that the aforesaid ruling of May 14, 1959, was inadvertently entered; it is further ordered and directed that the Commissioner's ruling of October 21, 1958, granting the claimant a 10% permanent partial disability award, be and the same is hereby affirmed; all of which is accordingly so ordered.'

Two questions are posed. Did the commissioner have jurisdiction to vacate or set aside the order of May 14, 1959, or to enter the order of July 15, 1959, and, if not, should the order of May 14, 1959, be interpreted [145 W.Va. 339] in accordance with the proof before the commissioner, to the effect that claimant was granted only a ten per...

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13 cases
  • State ex rel. Beckett v. Boles
    • United States
    • Supreme Court of West Virginia
    • November 24, 1964
    ...which occurred immediately before the sentence of life imprisonment was imposed upon the petitioner. See Cottrell v. State Compensation Commissioner, 145 W.Va. 336, 115 S.E.2d 153; Shears v. Adams, 145 W.Va. 250, 114 S.E.2d 585; Tressler Coal Mining Company v. Klefeld, 125 W.Va., 301, 24 S.......
  • Hubbard v. SWCC and Pageton Coal Co., 15237
    • United States
    • Supreme Court of West Virginia
    • December 18, 1981
    ...132 S.E.2d 743 (1963); Burr v. State Compensation Commissioner. 148 W.Va. 17, 132 S.E.2d 636 (1963); Cottrell v. State Compensation Commissioner, 145 W.Va. 336, 115 S.E.2d 153 (1960). However, there is an exception to this rule where the final order was procured through fraud or mistake. Mu......
  • Burr v. State Compensation Commissioner
    • United States
    • Supreme Court of West Virginia
    • November 26, 1963
    ......Rehearing Denied Nov. 26, 1963. Page 637.         Syllabus by the Court.         1. 'The State Compensation Commissioner has no power or jurisdiction to vacate, set aside or modify a final order made by him, except in the instances specifically provided by statute.' Cottrell v. State Compensation Commissioner, et al., 145 W.Va. 336, Point 1 Syllabus [115 S.E.2d 153]. Page 638.         2. Where the state compensation commissioner, prior to any final hearing, as provided for in Code, 1931, 23-5-1, as amended, enters an order based on a doctor's report by which he ......
  • Dismond v. State Compensation Commissioner, 12267
    • United States
    • Supreme Court of West Virginia
    • October 22, 1963
    ...or modify a final order made by him, except in the instances specifically provided by statute.' Point 1, Syllabus, Cottrell v. State Compensation Commissioner, 145 W.Va. 336 Patrick J. Flanagan, Welch, for appellant. Crockett, Tutwiler & Crockett, Charles A. Tutwiler, Welch, for appellee. C......
  • Request a trial to view additional results

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