France v. Workmen's Compensation Appeal Board
| Decision Date | 16 June 1936 |
| Docket Number | 8413. |
| Citation | 186 S.E. 601,117 W.Va. 612 |
| Parties | FRANCE v. WORKMEN'S COMPENSATION APPEAL BOARD et al. |
| Court | West Virginia Supreme Court |
Submitted May 14, 1936.
Syllabus by the Court.
Where an employer, protected by the Workmen's Compensation Act failed to report an injury within the six months' period as required by Code 1931, 23-4-15, and, within that period the claimant appeared at the office of the Workmen's Compensation Commissioner, explained his injury to him, and requested compensation but did not file formal written application until after the expiration of the limitation period, the commissioner may, by course of conduct following the personal call, be estopped to deny that the application was properly made.
Proceeding under the Workmen's Compensation Act by Haman France to recover compensation for injuries sustained while employed by the Lamar Colliery Company. From an order of the Workmen's Compensation Appeal Board, affirming the action of the commissioner in refusing to permit employee to file his written application for compensation, employee appeals.
Reversed and remanded.
J Howard Hundley, of Charleston, for appellant.
J. M B. Lewis, Jr., of Bluefield, for Lamar Colliery Co.
This appeal was granted claimant from an order of the Compensation Appeal Board, affirming the action of the commissioner of November 29, 1935, in refusing to permit France to file his written application for compensation.
Petitioner claims total and permanent disability as the result of an injury alleged to have been received by him June 2, 1932, while he was working for the Lamar Colliery Company. The employer made no report of the alleged injury nor did claimant file with the commissioner a written application of his claim within six months, as prescribed by statute. Code 1931, 23-4-15. Claimant asserts that on November 15, 1932, he visited the office of the commissioner and verbally reported his injury and requested compensation. On the latter date, and also on November 25th, and still within the statutory limitation period of six months, the commissioner wrote the employer advising it of the inquiry of claimant and requested the employer to investigate the matter and inform the commissioner. The employer made no reply to either communication.
On April 7, 1934, claimant filed a formal, verified petition with the commissioner for permission to present his claim and asked for an award of compensation, which permission and award were refused June 6, 1934. No objection to that action was made by claimant, nor did he attempt anything further until October 25, 1935, when he filed a second petition. He prayed that he be permitted to file his claim on a blank to be furnished him; that his application be regarded as having been filed November 15, 1932; and that award of compensation be made.
The commissioner, under date of November 29, 1935, affirmed his former finding. It is from the order of the Appeal Board sustaining the action of the commission that this appeal was allowed.
For the employer, it is contended that claimant did not file his claim in the manner and within the limitation period prescribed by statute, Code 1931, 23-4-15, and that the commissioner did not abuse his discretionary powers in refusing to permit the application to be filed after the expiration of the six months' period. Further, that the matter was completely adjudicated on June 6, 1934, and no timely objection made by claimant nor appellate relief sought.
Claimant takes the position that his application must be deemed to have been made November 15, 1932-within the limitation...
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