Georges Creek Coal Co. v. Workmen's Compensation Appeal Board
| Decision Date | 11 February 1936 |
| Docket Number | 8347. |
| Citation | 183 S.E. 866,117 W.Va. 89 |
| Parties | GEORGES CREEK COAL CO. v. WORKMEN'S COMPENSATION APPEAL BOARD. |
| Court | West Virginia Supreme Court |
Submitted January 8, 1936.
Syllabus by the Court.
1. An appeal lies under the provisions of chapter 78 of the Acts of the Regular Session of 1935, effective June 7, 1935, from the action of the compensation commissioner, taken prior to the effective date of that act, but within 90 days from the date of the appeal, in refusing to reopen a case upon a prima facie showing of an aggravated condition of injury arising since the date of the former award and within the time that the commissioner retains jurisdiction of the case.
2. An appeal lies to the Workmen's Compensation Appeal Board from a ruling of the compensation commissioner under the provisions of section 3 of article 5 of chapter 78 of the Acts of the Regular Session of 1935, without a previous demand made to the compensation commissioner within 30 days for a hearing upon the matter involved in the ruling appealed from.
Proceeding under the Workmen's Compensation Act by Alfonzo Thomas claimant, opposed by the Georges Creek Coal Company employer. From an order of the Workmen's Compensation Appeal Board remanding the case to the compensation commissioner, the employer appeals.
Affirmed.
Chas L. Estep, of Logan, for appellant.
Homer A. Holt, Atty. Gen., and Kenneth E. Hines, Asst. Atty. Gen for respondent.
Alfonzo Thomas was injured on the 20th day of April, 1933, while in the employ of the Georges Creek Coal Company at Hetzel in Logan county. The employer being a subscriber to the Workmen's Compensation Fund, an application, proper in all formal respects, for an award of compensation by the compensation commissioner was made. Upon "open case" or temporary status, Thomas was paid $8 a week until the 24th day of October, 1934. At that time a 25 per cent. disability award was made by the commissioner, entitling claimant to $8 a week for 100 weeks. The amount already paid was $624, so that at the date of the award there remained to be paid $176, the last installment of which was paid March 26, 1935.
Thomas was notified of the commissioner's award on December 17, 1934, and on April 10, 1935, Thomas wrote to the commissioner requesting that he receive a further physical examination with a view to procuring an additional award of compensation. This was accorded him by the commissioner, and on April 18, 1935, the medical examiner reported adversely to the claimant on the question of further compensation. On May 7, 1935, Thomas was notified by the commissioner that he could not consider the granting of additional compensation. Again, on June 5, 1935, in response to a letter from Thomas, the commissioner notified the claimant that no further award would be made. On July 12, 1935, the commissioner was notified by Thomas that he desired to appeal the case to the Workmen's Compensation Appeal Board. The appeal board entertained the appeal, and ordered that the case be remanded to the compensation commissioner for the taking of such proof, offered by either party, as might be necessary to properly develop the case. Apparently this was done on the theory that the claimant had prima facie shown an aggravated or new condition of injury that did not exist theretofore, and therefore was not considered by the commissioner in making the original award. From the action of the board, the employer appeals. The sufficiency of the showing of an aggravated condition of injury is not one of the questions presented upon this appeal, and it is to be understood that we are not attempting to pass upon that phase of the matter.
Two questions that this appeal does present are, first, whether the commissioner's action in declining to reopen the case for the consideration of an award of further compensation by his letters to the claimant under date of May 7, 1935, and June 5, 1935, is reviewable under the provisions of chapter 78 of the Acts of the Legislature of 1935, effective June 7, 1935, or under the law as it was prior to the effective date of that act; and, second, if reviewable under the Acts of 1935, c. 78, whether, under that act, an appeal lies from a ruling of the compensation commissioner without first having demanded a hearing as was required under the law as it stood prior to June 7, 1935, the effective date of chapter 78 of the Acts of 1935.
On the first question, it will be observed that the effective date of chapter 78 of the Acts of 1935 came within the period of 90 days allowed for appeal under the act referred to, as well as under the applicable statutory provisions prior to the effective date of that act, and that, furthermore, the appeal from the ruling of the compensation commissioner was effected during the 90-day period and after June 7, 1935. Inasmuch as the appeal was perfected after the effective date...
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