Gibson v. State Comp. Com'r, 9625.

• Court: Supreme Court of West Virginia
• Writing for the Court: RILEY
• Citation: 31 S.E.2d 555
• Parties: GIBSON. v. STATE COMPENSATION COM'R et al.
• Docket Number: No. 9625.,9625.
• Decision Date: 03 October 1944

31 S.E.2d 555

GIBSON.
v.
STATE COMPENSATION COM'R et al.

No. 9625.

Supreme Court of Appeals of West Virginia.

Oct 3, 1944.

[31 S.E.2d 555]Syllabus by the Court.

1. A claim for death benefits, provided for by Code, 23-4-10, is separate and distinct from an injured employee's claim for disability benefits.

2. Where an employee, injured in the course of his employment, is denied compensation during his lifetime on the ground that disability is not the result of said injury, the State Compensation Commissioner has jurisdiction to consider a claim, timely filed, for death benefits after the death of the employee and may determine whether the personal injury received by the employee caused his death.

3. The ruling of the Workmen's Compensation Appeal Board will not be reversed except for error of law or where the finding is clearly against the preponderance of the evidence.

Appeal from Workmen's Compensation Appeal Board.

Proceeding under the Workmen's Compensation Act by Fannie B. Gibson, widow, etc., to recover compensation for death of her husband, opposed by the State Compensation Commissioner and another. From a ruling of the Workmen's Compensation Appeal Board setting aside the award of compensation made by the State Compensation Commissioner, the claimant appeals.

Affirmed.

James G. Jeter, Jr., of Charleston, for appellant.

Crockett & Tutwiler, of Welch, for appellee.

RILEY, Judge.

Gaines G. Gibson, trackman for Pocahontas Fuel Company, was injured on March 24, 1941, and died November 30, 1942, of cancer of the lung with multiple metastases. The State Compensation Commissioner awarded compensation to the employee's widow and children. The appeal board having set aside the award on the ground that Gibson "did not come to his death as a result of an injury in the course of and resulting from his employment, " the widow prosecutes this appeal.

Before discussing whether the appeal board's basis for denial of compensation is warranted, we direct our attention to the employer's challenge of the commissioner's jurisdiction to pass upon the claim of decedent's dependents for benefits provided for by Code, 23-4-10, which provides, in part, as follows: "In case the personal injury causes death within the period of six years, and the disability is continuous from date of such injury until date of death, the benefits shall be in the amounts, and to the persons, as follows * * *." The employer argues that, although the commissioner awarded Gibson temporary total disability benefits of one and six-sevenths weeks on September 23, 1941, on two subsequent occasions, namely, July 13 and October 23, 1942, he refused further compensation on the basis that no partial permanent disability had resulted from the injury received by decedent on March 24, 1941, and that since decedent had not objected to the commissioner's findings on the occasions subsequent to the original award such findings became final and barred the application of decedent's widow and children.

[31 S.E.2d 556]

There can, of course, be no equivocation that dependents' claim for compensation must be based upon the employee's death resulting from injury within six years. The statute, above quoted, so states; but the claim for disability benefits, provided by Code, Chapter 23, and the claim for death benefits are not the same, nor is a claim for the latter a derivative one. The concept of privity between the two types of claims was negatived in Lester v. State Compensation Com'r, 123 W. Va. 516, 16 S.E.2d 920, wherein this Court refused to the widow of the deceased employee the total balance of an award made to the husband during his lifetime, and limited recovery to her of that portion of the award which had accrued prior to his death. See also Hogsten v. Compensation Commissioner, 124 W....