Ferguson v. State Workmen's Compensation Commissioner

• Decision Date: 08 October 1968
• Docket Number: No. 12746,12746
• Citation: 152 W.Va. 366,163 S.E.2d 465
• Parties: Mrs. Hercy C. FERGUSON, widow of Hercy C. Ferguson (deceased) v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Bishop Coal Company.
• Court: West Virginia Supreme Court

Page 465

163 S.E.2d 465

152 W.Va. 366

Mrs. Hercy C. FERGUSON, widow of Hercy C. Ferguson (deceased) v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Bishop Coal Company.

No. 12746.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 18, 1968.

Decided Oct. 8, 1968.

Syllabus by the Court

1. The findings and conclusions of the silicosis medical board, to which no objections have been filed within the time permitted for the filing of objections, though plenary and conclusive, do not constitute an award of compensation but are information to be considered by the workmen's compensation commissioner in making his decision. Under the workmen's compensation statutes of this State the commissioner is the only person who is empowered to make an initial compensation award.

2. To entitle the dependent widow of a claimant, who dies from sickness or a non-compensable injury, to payment of the unpaid balance of a permanent partial disability award of compensation under Section 6(e), Article 4, Chapter 23, Code, 1931, as amended, a valid award of such compensation must be made by the workmen's compensation commissioner during the lifetime of the claimant; and if such claimant dies before such award is made his dependent widow is not entitled to receive any part of an award which could have been made during the lifetime of the claimant.

Crockett, Tutwiler & Crockett, Welch, for appellant.

R. L. Theibert, Charleston, for appellees.

HAYMOND, Judge:

This is an appeal by the employer, Bishop Coal Company, from a final order of the Workmen's Compensation Appeal Board entered May 7, 1968, which reversed a final order of the West Virginia Workmen's Compensation Commissioner entered January 2, 1968. The order of the commissioner set aside a former award of 30% Permanent partial disability benefits in favor of the employee, Hercy C. Ferguson, which award was made by the commissioner on June 2, 1967, after the death of the employee which occurred May 26, 1967. By its order of reversal the appeal board, in effect, reinstated the former award of the commissioner and granted the widow as a dependent of the deceased employee a 30% Permanent partial disability award for her husband's silicosis in the advanced stage.

The material facts are not disputed and the legal question for decision is whether a permanent partial disability award which had been made to the employee, Hercy C. Ferguson, after his death entitles his dependent widow to receive such award under the provisions of Section 6(e), Article 4, Chapter 23, Code, 1931, as amended.

Hercy C. Ferguson, who had been employed by Bishop Coal Company for many years, filed his claim with the workmen's compensation commissioner for silicosis benefits on August 25, 1966. On October 10, 1966, the commissioner, by his preliminary non-medical ruling, found that the claimant had been exposed to the hazard of silicon dioxide in harmful quantities within the statutory period and referred the claim to the silicosis medical board for its review and disposition. The order of October 10, 1966 provided that either party had thirty days from its receipt within which to file objections in writing to the order but no objections were filed by either party. The silicosis medical board examined the claimant and on May 2, 1967 filed these findings: 'We have reviewed the record in the above styled claim and find sufficient evidence to justify a conclusion that this claimant is suffering from an advanced stage of silicosis with 30% Impairment of his capacity to work due to the disease silicosis.' The findings of the silicosis medical board were transmitted to the parties by letter dated May 8, 1967, in which it was stated that 'These findings are taken to be plenary and conclusive evidence by the Director unless written objection thereto is filed within fifteen days of this date.' Neither party objected to the foregoing findings within the period of fifteen days which expired on May 23, 1967; and on May 26, 1967 the claimant Hercy C. Ferguson, died from an illness not related to silicosis. An autopsy revealed the cause of death to be carcinoma of the stomach.

By order entered June 2, 1967, transmitted by letter of June 12, 1967, the commissioner awarded Hercy C. Ferguson 30% Permanent partial disability benefits for silicosis. No appeal was taken from this order by either party.

On June 23, 1967, the commissioner was informed that the claimant Hercy C. Ferguson had died on May 26, 1967; and by order entered July 27, 1967 the commissioner reversed and dismissed his order of June 2, 1967, without prejudice to the rights of any dependent to file a claim for benefits. That order, however, did not advise the parties as to the time in which an appeal could be taken and by subsequent order entered January 2, 1968, the commissioner again directed that his order of June 2, 1967 be dismissed, without prejudice, and provided that either party had thirty days from the receipt of the order in which to appeal. From that order the widow appealed to the Workmen's Compensation Appeal Board which, as previously indicated, by its order of May 7, 1968, reversed the commissioner's order of January 2, 1968.

Section 8c, Article 4, Chapter 23, Code, 1931, as amended, relating to the findings and the conclusions of the silicosis medical board, provides, to the extent here pertinent, that after the period of fifteen days within which either party may file objections in writing with the commissioner has expired without the filing of any such objections, the report of a majority of the board of its...