Gibson v. State Compensation Com'r

• Decision Date: 03 October 1944
• Docket Number: 9625.
• Citation: 31 S.E.2d 555,127 W.Va. 97
• Parties: GIBSON v. STATE COMPENSATION COM'R et al.
• Court: West Virginia Supreme Court

31 S.E.2d 555

127 W.Va. 97

GIBSON v. STATE COMPENSATION COM'R et al.

No. 9625.

Supreme Court of Appeals of West Virginia.

October 3, 1944

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.

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.Va. 153, 19 S.E.2d 439. The former case clearly denotes that any rights that may attach to an employee's claim for disability benefits are terminable upon his death when, eo instante, the right of his dependents to death benefits attaches. The claim for the latter being distinct from that of the employee himself jurisdiction exists in the commissioner to determine what, if any, death benefits an applicant is entitled to receive.

The employer argues further that since the commissioner decided on July 13 and October 23, 1942, that Gibson's disability was due to causes other than the alleged injury, he had no authority, after Gibson's death, to effect an award to his dependents. The employer recognizes the continuing jurisdiction accorded the commissioner under Code, 23-4-16, but asserts that the cases of Johnson v. Compensation Com'r, 109 W.Va. 316, 154 S.E. 766, and Yocomolish v. Compensation Com'r, 110 W.Va. 79, 157 S.E. 45, deny to the commissioner the right to set aside his findings except for good cause, which employer contends is lacking in this instance. As we understand the employer's position, Gibson's widow and children are precluded from participating in the fund because decedent failed to protest and appeal from the orders of July 13, and October 23, 1942, refusing partial permanent disability. Since the claims are distinct, this position is not meritorious.

The employer likewise challenges the commissioner's award of compensation to decedent's widow and children on the grounds that it was not warranted under the facts disclosed by the record, and because Gibson's disability was not continuous from the date of injury until his death. The employer points to the fact established in the record that Gibson returned to work on April 21, 1941, and continued to work either for employer or for another coal company until June, 1942. The record shows that Gibson's claim was that a piece...