Eggleton v. State Workmen's Compensation Com'r

• Citation: 214 S.E.2d 864,158 W.Va. 973
• Decision Date: 20 May 1975
• Docket Number: Nos. 13563,13564,s. 13563
• Court: Supreme Court of West Virginia
• Parties: Woodrow EGGLETON v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Dougherty Company, Inc. James H. JOHNSON v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Mountain State Trucking COMPANY.

Page 864

214 S.E.2d 864

158 W.Va. 973

Woodrow EGGLETON v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Dougherty

Company, Inc.

James H. JOHNSON v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Mountain State

Trucking COMPANY.

Nos. 13563, 13564.

Supreme Court of Appeals of West Virginia.

May 20, 1975.

Rehearing Denied July 7, 1975.

Syllabus by the Court

1. W.Va.Code 1931, 23--4--16, as amended effective July 1, 1971, authorizes the Workmen's Compensation Commissioner to 'reopen' and consider for modification permanent partial disability awards relating to compensable injuries sustained prior to July 1, 1970, when the last payments for such awards, or increase thereto, were made by the Commissioner subsequent to July 1, 1971, although the applications for 'reopening' and modification of prior awards were made more than one year, but less than five years from the date of the last payments, and were not applied for more than twice during such five-year period.

2. Where a statute is plain and unambiguous, a court has a duty to apply and not to construe its provisions.

Edward G. Atkins and John R. Mitchell, Charleston, for appellants.

No counsel for appellees.

HADEN, Chief Justice:

Claimants Woodrow Eggleton and James H. Johnson appeal adverse decisions of the Workmen's Compensation Appeal Board, affirming the Workmen's Compensation Commissioner's refusal to reopen their claims for additional disability rating on the ground that more than one year had elapsed from and after the date of last payment of the respective permanent partial disability awards to the claimants, thereby barring any reopening of the claims.

The facts engendering these appeals are not in dispute and, except as stated in the issue, are not material to the resolution of these cases. The single legal issue presented for decision is as follows: Does the Commissioner have jurisdiction under W.Va.Code 1931, 23--4--16, as amended, effective July 1, 1971, to consider claimants' petitions to reopen and modify permanent partial disability awards which were based upon compensable injuries sustained prior to July 1, 1970, when the last payments for such awards, or increase thereto, were made by the Commissioner subsequent to July 1, 1971?

The predecessor provision to W.Va.Code 1931, 23--4--16, as amended, which was controlling prior to July 1, 1970, when claimants' compensable injuries were sustained precluded 'reopening' and modification of a prior award 'one year after the commissioner shall have made the last payment in any permanent disability case.' By legislative enactment effective July 1, 1970, the time limitation for petitions to reopen was expanded to 'not more than two times within five years after the commissioner shall have made the last payment in any permanent disability case. . . .' Then, through passage of Chapter 177, Acts, Regular Session, 1971, effective July 1, 1971, the statute was amended again to provide, inter alia:

'The power and jurisdiction of the commissioner over each case shall be continuing and he may from time to time, after due notice to the employer, make such modifications or changes with respect to former findings or orders as may be justified: Provided, that no further award may be made . . . in case of nonfatal injuries . . ., except . . . not more than two times within five years after the commissioner shall have made the last payment in the original award or any subsequent increase thereto in any permanent disability case: . . ..' (Emphasis supplied).

Thus, the 'reopening' proviso, as emphasized, evolved from a provision allowing the reopening of prior awards on an annual basis from the date of the last payment, to a new statutory scheme allowing reopenings twice within a five-year period from the date of 'the last payment in the original award or any subsequent increase thereto . . ..' (Emphasis supplied).

As noted, the records in these cases reveal that claimants...