Greer v. Workmen's Compensation Commissioner
| Decision Date | 06 May 1941 |
| Docket Number | 9178. |
| Parties | GREER v. WORKMEN'S COMPENSATION COMMISSIONER et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
Ashworth & Sanders and J. K. Edmundson, all of Beckley, for appellant.
Clarence W. Meadows, Atty. Gen., Kenneth E. Hines, Asst. Atty. Gen and J. Randolph Tucker, of Welch, for appellees.
Ambrose Greer prosecutes this appeal from the action of the Workmen's Compensation Commissioner on August 7, 1940 denying his petition for additional compensation filed on the third day of August, 1940; and the order of the appeal board dated December 21, 1940, by which the action of the commissioner was affirmed.
The appellant was injured June 6, 1919, while employed by the Carter Coal Company, for which he was allowed temporary total disability at the rate of $7.91 per week which allowance was subsequently increased to 50 per cent. permanent partial disability for 150 weeks, and this, on the 31st day of July, 1922, was increased to 70 per cent. permanent partial disability, or 210 weeks, which expired June 21, 1923.
The injury is described in the commissioner's records as "contused wound of hips"; "contused wound of skull"; "contused wound of spine". After the final payment to the claimant on June 21, 1923, the record shows nothing further done by the claimant or by the commissioner except under date of November 20, 1928, the commissioner replied to a letter of inquiry from the Welfare Association of Cecil County, Maryland, advising the association that Greer had been fully compensated for his injury and his case closed. The present petition recites the history of the case, with this additional paragraph: "Claimant says further that he is now, and has been since the date of his aforesaid injury, totally and permanently disabled from performing any work or labor; that his present disability is due to and a result of said compensable injury; that he is advised by competent physicians that he will forever remain totally and permanently disabled."
The commissioner rejected this petition on the ground that: "Our Workmen's Compensation Law provides that no further award may be made in either fatal or non-fatal cases arising on account of injuries occurring prior to March 7, 1929, unless written application for such award, signed personally by claimant, or, in case of claimant's infancy or physical or mental incapacity, by his or her guardian, next friend, or committee, be filed with the commissioner on or before September 15, 1939."
The appeal board, "being of opinion that the Commissioner's said action is supported by the record", sustained the commissioner.
It will, therefore, be seen that nothing is before us except the single legal question, whether, upon this showing, the appellant's claim was legally barred by the statute referred to (Section 16, Chapter 137 of the Acts of the Legislature of 1939), which reads as follows: "The power and jurisdiction of the commissioner over each case
shall be continuing, and he may from time to time, after due notice to the employer, make such modifications or changes with respect to former findings or orders as may be justified: *** And provided further, That no further award may be made in either fatal or nonfatal cases arising on account of injuries occurring prior to March seventh, one thousand nine hundred twenty-nine, unless written application for such award, signed personally by claimant, or, in case of claimant's infancy or physical or mental incapacity, by his or her guardian, next friend, or committee, be filed with the commissioner on or before September fifteenth, one thousand nine hundred thirtynine."
It is fully agreed between opposing counsel that if this statute operates to destroy any vested contractual right of the appellant, it is unconstitutional. Jenkins v. Heaberlin, 107 W.Va. 287, 148 S.E. 117; Hardin v. Workmen's Compensation Appeal Board, 118 W.Va. 198, 189 S.E. 670; 16 C.J.S., Constitutional Law, § 614, p. 1234. And it is equally agreed that if the statute operates only as a modification of the claimant's remedy for the enforcement of such right, leaving his full right unimpaired, it is valid. McShan v. Heaberlin, 105 W.Va. 447, 143 S.E. 109; Tackett v. Ott, 108 W.Va. 402, 151 S.E. 310; Proffitt v. State Compensation Commissioner, 108 W.Va. 438, 151 S.E. 307; 2 Schneider on Workmen's Compensation Law, 2d Ed., section 577; 71 Corpus Juris, p. 340, 341.
It is possible to conceive a case under our Workmen's Compensation Law in which the very substance of a claimant's right might be substantially affected by the application of this statute, but it is also very apparent that as to many, if not most, of such cases, this act will touch only the method and time of acting by a claimant in the enforcement of his right. We believe the present case belongs to the latter class.
It will be noted that the petitioner's claim is for a total disability, now existing, and which has existed continuously since the date of his injury, June 6, 1919. Hence, if his present claim is well founded, the findings of the commissioner on July 31, 1922, were erroneous. But no appeal was taken and no further application made. From July 31, 1922, to August 3, 1940, the claimant acquiesced in the commissioner's decision. Further, even now, he makes no contention that there has been any aggravation of, or new development in, his injury. From the date of the last payment to him on June 21, 1923, to the date of the filing of the present petition, his condition has been open and obvious, and no pretense is made that he was not fully aware of his condition and his right, if any he had, to additional compensation. His condition during all this time was fully developed; his right had "accrued"; and thus his case stood on the 11th day of March, 1939, when the act here under consideration was passed and became effective. This act took away no right, vested or non-vested; it destroyed no claim and affected this claimant only to the extent of requiring him to present his claim, if any he had, on or before the 15th day of September, 1939. It did not operate retroactively, and did not purport so to do. It was wholly prospective in its effect. It merely provided that if such claimant as the appellant did not do a certain thing by a fixed time in the future, he should lose certain rights.
This provision of the statute is perfectly consistent with many other provisions of our Workmen's Compensation Law by which a claimant is required to act within a prescribed time or lose his benefits. If an injured workman fails to present his claim to the commissioner within six months after his injury, he can have no relief; and all proof of dependency in fatal cases must be filed with the commissioner within nine months from and after the death; an appeal from the commissioner's finding must be made within thirty days; and an appeal to this court must be made within thirty days after the decision of the appeal board. If, therefore, we consider this statute as requiring this particular claimant to have presented his claim contained in his petition before September 15, 1939, how does such a requirement in legal effect differ from the other provisions of the statute requiring such claimant to present and prosecute his claim within a fixed period?
Our statutes are full of provisions requiring claims, contractual and tortious, to be prosecuted within limited times. In fact we think of no other legal claim which is without a time limit in its enforcement. Is a workman's...
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