Enyart v. State Comp. Comm'r, (No. 6862)

• Decision Date: 12 November 1930
• Docket Number: (No. 6862)
• Citation: 109 W.Va. 613
• Court: West Virginia Supreme Court
• Parties: Everett Enyart v. State Compensation Commissioner

109 W.Va. 613

Everett Enyart

v.State Compensation Commissioner

(No. 6862)

Supreme Court of Appeals of West Virginia.

Submitted October 28, 1930.

Decided November 12, 1930.

1. Where an allowance for temporary disability is awarded and paid to a claimant under workmen's compensation fund, and thereafter he seeks further compensation which is denied by the commissioner who notifies claimant that the "claim remains closed", and the claimant then takes no further steps in the matter for nearly four months, he thereby loses his right to have the matter reviewed in this court, because of failure of compliance with requirements of section 43, chapter 71, Acts of Legislature of 1929. As a preliminary to appellate proceedings, that section requires the claimant to object to such adverse finding within ten days after receipt of notice thereof, and provides for a further hearing by the commissioner following such objection by the claimant. Then, if final action of the commissioner be adverse to the claimant, the statute permits him to apply to the supreme court of appeals for "a review of the record and such decision within ninety days". Proceeding under the Workmen's Compensation Act by Everett Enyart. On appeal from a decision of the Compensation Commissioner refusing to reopen the case for purpose of awarding further compensation, claimant appeals.

Affirmed.

W. L. Taylor, for appellant.

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

Maxwell, Judge:

In the course of his employment claimant was injured in a mine of the West Virginia Coal & Coke Company, at Omar, Logan County, the 14th day of February, 1929. He was allowed compensation from the date of his injury to the first day of June, 1929, at which time he was supposed to be able to return to work, at least, that was the medical opinion upon which the commissioner acted. The claimant himself wrote the commissioner under date of July 1, 1929:" I am now ready to go to work or expect to within the next few days." In the same letter, however, he asserted that his right ankle was crooked and that he should have further compensation. Within a few days after the receipt of this letter, the commissioner replied thereto and sent to claimant a form upon which claimant's physician could make a further report. Such report was not made, but on the 11th of September, claimant appeared in person at the office of the State Compensation Commissioner at Charleston, bearing a letter of Dr. L. W. Lawson of Logan, addressed to Dr. Russell Kessel, one of the medical examiners of the compensation department, and stating that claimant had been under treatment at the Hatfield-Lawson Hospital at Logan and that '' He has some slight eversion of the right foot, and I am unable to determine the amount of his disability. I would like for you to look him over and advise us your opinion." On the following day, claimant was given an examination by Dr. Kessel, who thereupon recommended that there be no further allowance over and above the fourteen and oneseventh weeks' compensation as temporary disability which had been allowed the claimant immediately following his injury. On the 18th of September, the commissioner wrote claimant: "It is the opinion of this office that you have been sufficiently compensated for your injury of February 14, 1929. You have been awarded compensation for the time lost and inasmuch as you have no permanent disability which would entitle you to further compensation, I must advise that your claim remains closed." The phrase "remains closed," as used in that letter, is appropos of another letter which had been written by the commissioner to the claimant June 28, 1929, wherein the commissioner said: "With further reference to your claim, will advise that your attending physician reported you able to resume work on June 1st, and your claim was...