Felty v. Compensation Com'r
| Decision Date | 24 February 1942 |
| Docket Number | 9314. |
| Citation | 19 S.E.2d 90,124 W.Va. 75 |
| Parties | FELTY v. COMPENSATION COM'R et al. |
| Court | West Virginia Supreme Court |
Brown, Jackson & Knight, of Charleston, for appellant.
W W. Smith, of Huntington, for appellee.
Both of the bones in James Felty's lower right leg were fractured April 8, 1937, in the course of and resulting from his employment by Wheeling Valley Coal Corporation. The requirements having been complied with, he was placed on a temporary total rating which was allowed to run the full period of 78 weeks, immediately following the expiration of which, the Commissioner awarded Felty a twenty-five per cent permanent disability rating. On March 20, 1939, the award was raised to thirty-five per cent, on November 24, 1939, to forty per cent, and on October 31, 1940, to forty-five per cent, the employer having objected to each of the increases, the addition ordered November 24, 1939, having been taken by the employer to the Appeal Board and
by it affirmed.
On July 24, 1941, claimant filed in the Commissioner's office his petition for additional compensation, containing what was regarded as a satisfactory showing of aggravation since the last award, a further increase being refused because Code, 23-4-6, allows for the severance of a leg below the thigh a rating of forty-five per cent disability. The Commissioner's decision, not being based upon a further finding of fact, was by this applicant carried to the Appeal Board, which, without the taking of further proof and with no development before it since the date of the last award except the claimant's written motion and showing of aggravation, entered its order reversing the finding of the Compensation Commissioner and remanding the case to him with instructions to increase the award to fifty-two and three-fourths per cent. Upon the application of the employer, we granted an appeal to the finding of the Board.
There are two distinct questions which arise upon considering the course taken by the Compensation Appeal Board in this instance: (1) Was the Board correct in reversing the finding of the Compensation Commissioner? (2) If it was, is their direction to the Compensation Commissioner to increase the award without additional proof before the Commissioner or before the Board, to be sustained?
The second question being one of procedure, it will be discussed first.
In the absence of a statutory provision authorizing it to be done for a body acting in an appellate capacity to reverse as an incorrect finding of fact a decision not based upon testimony, of which there was none that bore upon the question under consideration, is quite plainly out of line with all effective methods of review. There was no proof to be re-examined and none was offered before the Board
In attempting to ascertain to what extent the Legislature has regulated the procedure by which the Appeal Board reviews the findings of the Compensation Commissioner, it would seem that Code, 23-5-1b, as amended and reenacted under that heading by the Acts of 1939, Chapter 137, contains the controlling provision relating to the refusal by the Commissioner to reopen a claim for compensation. Under the statute referred to, the Compensation Commissioner is required to act upon an application to reopen the claim within sixty days after its receipt, and to notify the claimant in writing if his decision is not to reopen the claim and of the fact that the claimant has thirty days to apply for an appeal. The last sentence of the section referred to gives the claimant the right after thirty days receipt of the notice to apply to the Appeal Board for a review of such decision, by plain implication confining the appeal to the question of reopening, which, as a matter of fact, is the only appealable question shown in the Commissioner's file. We...
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