Hubbard v. SWCC and Pageton Coal Co., No. 15237

CourtSupreme Court of West Virginia
Writing for the CourtMcGRAW; NEELY; MILLER
Citation295 S.E.2d 659,170 W.Va. 572
Decision Date18 December 1981
Docket NumberNo. 15237
PartiesVirginia HUBBARD, Widow, etc. v. SWCC AND PAGETON COAL CO.

Page 659

295 S.E.2d 659
170 W.Va. 572
Virginia HUBBARD, Widow, etc.
v.
SWCC AND PAGETON COAL CO.
No. 15237.
Supreme Court of Appeals of West Virginia.
Dec. 18, 1981.
Dissenting Opinion Sept. 3, 1982.

Page 660

[170 W.Va. 573] Syllabus by the Court

1. "Where a new statute deals with procedure only, prima facie, it applies to all actions--those which have accrued or are pending, and future actions." Syllabus Point 1, Lester v. State Workmen's Compensation Commissioner, 161 W.Va. 299, 242 S.E.2d 443 (1978).

2. A dependent's claim for death benefits is separate and distinct from the claim of the injured employee.

3. The workmen's compensation statutes in effect on the date of death of an injured employee control the death claims of the employee's dependents.

4. While the doctrine of res judicata is applicable to workmen's compensation cases, that doctrine is not rigidly enforced where to do so would defeat the ends of justice.

5. "The state compensation commissioner has no power or jurisdiction to vacate, set aside or modify a final order made by him, except in instances in which it appears he lacked jurisdiction to enter such order or that it was procured through fraud or mistake." Syllabus Point 1, Partlow v. Workmen's Compensation Commissioner, 150 W.Va. 416, 146 S.E.2d 833 (1966).

6. The mistaken application by the commissioner of the wrong procedural statute, which deprives an otherwise qualified claimant of the widow's benefits to which she is entitled under the statutes in effect on the date of her husband's death, is a mistake which justifies the setting aside of a final order.

J. W. Feuchtenberger, Kwass, Stone, McGhee & Feuchtenberger, Bluefield, for appellant.

Philip A. LaCaria, Welch, for appellee.

McGRAW, Justice:

This is an appeal from an order of the Workmen's Compensation Appeal Board, dated November 26, 1980, which affirmed the State Workmen's Compensation Commissioner's ruling denying the claimant's application for dependent death benefits on

Page 661

[170 W.Va. 574] the ground that the commissioner did not have jurisdiction to consider the claim, and that the claim was untimely because it was not filed within two years of the death of claimant's decedent.

The facts of this case are not in dispute. Claimant's decedent, William H. Hubbard, was granted a total permanent disability award for silicosis on January 21, 1965. His last date of exposure to work conditions giving rise to the disease was March 27, 1964. Under the provisions of W.Va.Code §§ 23-4-6a and 23-4-10 [1961] then in effect, the dependent widow of an employee who died from occupational pneumoconiosis was entitled to death benefits, provided the employee died within six years of the date of his last exposure. This limitation period between the date of last exposure and the date of death was changed to ten years by the Legislature in 1967. See W.Va.Code § 23-4-10 [1967]. The limitation period was removed altogether by the Legislature in 1974. The disability need now only be continuous from date of last exposure to date of death. See W.Va.Code § 23-4-10 [1974].

Mr. Hubbard died March 18, 1971, approximately seven years after the date of his last exposure and approximately four years after the 1967 amendment to W.Va.Code § 23-4-10. The primary cause of death was listed on his death certificate as pneumoconiosis and lung failure. The claimant herein, Mr. Hubbard's widow, acting pro se, timely filed her application for dependent benefits on May 12, 1971. The commissioner, however, did not apply the law then in effect, but rather applied the 1961 version of W.Va.Code § 23-4-10, and rejected her application by order dated January 17, 1972, because her husband had not died within six years from his date of last exposure. Notice of the commissioner's decision was sent to the claimant by letter on the same date. No appeal was taken to this ruling by the claimant, who was not represented by counsel.

Approximately five years later, on or about March 22, 1977, the claimant filed a second application for death benefits. The commissioner denied the application by order dated April 1, 1977 on the ground that it was not filed within two years of the death of the claimant's husband. 1 The claimant protested this order, and at a hearing held January 11, 1979 moved that her 1971 application be made a part of the record, that the commissioner set aside his previous ruling, and that he enter an order granting her benefits. The commissioner denied the motion and affirmed his previous order of April 1, 1977 rejecting the claimant's application.

On appeal, the Workmen's Compensation Appeal Board found that the commissioner was without jurisdiction to consider the claimant's application for dependent benefits on the ground that the entire case had been previously considered and adjudicated. The appeal board therefore affirmed the commissioner's decision.

The claimant contends that the commissioner's 1972 ruling dismissing her application was outside his jurisdiction in that it was entered in defiance of the intent of the Legislature and deprived her of the dependent benefits to which she was entitled by the statutes then in existence. She further

Page 662

contends that the commissioner's 1979 ruling dismissing her second application was [170 W.Va. 575] erroneous, arguing that this was the only forum available to assert her claim, and that although her previous claim was rejected and no appeal was taken, the matters contained therein should not be barred by any statute of limitations or by the doctrine of res judicata. Because we agree with the claimant's contentions we reverse the order of the appeal board.

I.

THE 1971 APPLICATION

The commissioner's order rejecting the claimant's initial application for benefits was clearly wrong. Under the statutes in existence at the time of her husband's death, the claimant was indisputably entitled to dependent death benefits. Her claim was rejected solely because the commissioner applied the 1961 version of W.Va.Code § 23-4-10 to her claim, rather than the amended statute in effect at the time of her husband's death. The commissioner's action was erroneous for two reasons. First, he failed to give the claimant the benefit of the 1967 amendment to W.Va.Code § 23-4-19, and second, he failed to recognize the independent nature of the widow's death claim when he applied the statute in effect on Mr. Hubbard's last date of exposure, rather than the statute in effect on the date of death, to the widow's claim.

In Lester v. State Workmen's Compensation Commissioner, 161 W.Va. 299, 242 S.E.2d 443 (1978), we were faced with a situation analagous to that in the case at bar. Lester involved the period of limitations contained in former W.Va.Code § 23-4-15 [1969]. At the time of the claimant's last exposure in Lester, § 23-4-15 required claims for occupational pneumoconiosis benefits to be filed within three years from the date of last exposure. Before this three year period had expired, the Legislature amended the statute to provide that a claim must be filed within three years from the time the employee's disease was made known to him by a physician or from when he reasonably should have known of his affliction. The claimant in Lester filed his application for benefits within three years of being informed by a physician that he suffered from occupational pneumoconiosis, but not within three years of the date of last exposure. The commissioner applied the version of § 23-4-15 in effect at the time of the employee's last exposure, and rejected the application as not timely filed. This decision was affirmed by the appeal board.

On appeal to this Court we held that the time limitations contained in W.Va.Code § 23-4-15 are basically procedural and remedial in nature, and that therefore in light of the beneficent purposes of the Workmen's Compensation Act and the liberality rules as to its construction, the amendments to the statute enlarging the limitation period should apply to claims that had not yet expired under the previously existing period of limitation. Our holding in Lester was premised upon the long standing rule in this jurisdiction that "where a new statute deals with procedure only, prima facie, it applies to all actions--those which have accrued or are pending, and future actions." 161 W.Va. 303-304, 242 S.E.2d at 446, citing, Consentina v. State Compensation Commissioner, 127 W.Va. 67, 31 S.E.2d 499 (1944); Proffitt v. State Compensation Commissioner, 108 W.Va. 438, 151 S.E. 307 (1930); Tackett v. Ott, 108 W.Va. 402, 151 S.E. 310 (1930); McShan v. Heaberlin, 105 W.Va. 447, 143 S.E. 109 (1928).

It cannot seriously be argued that the period of limitations contained in W.Va.Code § 23-4-10 is any less procedural in nature than that contained in W.Va.Code § 23-4-15. Furthermore, the 1967 amendment of § 23-4-10 occurred at a time prior to the expiration of the six year period of limitations imposed on the claimant's application by the statute in effect at the time of Mr. Hubbard's last exposure. The Legislature intended the 1967 amendment to apply to claims which had not yet expired under the previously existing period of limitation. Lester v. State Workmen's Compensation Commissioner, supra. The case

Page 663

at bar then clearly presents a situation where the commissioner should have applied the 1967 amendment of W.Va.Code [170 W.Va. 576] § 23-4-10 to the claimant's application for benefits.

It is a long established rule of law in this jurisdiction that a dependent's claim for death benefits is separate and distinct from the claim of the injured employee. Sizemore v. State Workmen's Compensation Commissioner, 159 W.Va. 100, 219 S.E.2d 912 (1975); Staubs v. Workmen's Compensation Commissioner, 153 W.Va. 337, 168 S.E.2d 730 (1969); Ashworth v. Workmen's Compensation Commissioner, 150 W.Va. 537, 148 S.E.2d 364 (1966); Jones v. State Compensation Commissioner, 128 W.Va. 737, 38 S.E.2d 376...

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10 practice notes
  • Weatherly v. Great Coastal Express Co., Inc., 1176
    • United States
    • Court of Special Appeals of Maryland
    • September 19, 2005
    ...255, 259 (1999); Hebden v. Workmen's Comp. Appeal Bd., 534 Pa. 327, 632 A.2d 1302, 1304-05 (1993); Hubbard v. SWCC & Pageton Coal Co., 170 W.Va. 572, 295 S.E.2d 659, 664-65 (1981); Taylor v. Hatzel & Buehler, 258 A.2d 905, 908 (Del.1969); Wall v. C.Y. Thomason Co., 232 S.C. 153, 101 S.E.2d ......
  • Horton v. Prof'l Bureau of Collections of Md., Inc., 15-0692
    • United States
    • Supreme Court of West Virginia
    • November 15, 2016
    ...all the purposes intended. Kisamore v. Coakley, 190 W.Va. 147, 437 S.E.2d 585 (1993) (per curiam); Hubbard v. SWCC and Pageton Coal Co., 170 W.Va. 572, 295 S.E.2d 659 (1981) ; Wheeling Dollar Savings & Trust Co. v. Singer, 162 W.Va. 502, 250 S.E.2d 369 (1979).State ex rel. McGraw v. Scott R......
  • Barr v. Ncb Mgmt. Serv. Inc., 35709.
    • United States
    • Supreme Court of West Virginia
    • June 14, 2011
    ...all the purposes intended. Kisamore v. Coakley, 190 W.Va. 147, 437 S.E.2d 585 (1993) (per curiam); Hubbard v. SWCC and Pageton Coal Co., 170 W.Va. 572, 295 S.E.2d 659 (1981); Wheeling Dollar Savings & Trust Co. v. Singer, 162 W.Va. 502, 250 S.E.2d 369 (1979).State ex rel. McGraw v. Scott Ru......
  • State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., PONTIAC-BUIC
    • United States
    • Supreme Court of West Virginia
    • July 19, 1995
    ...all the purposes intended. Kisamore v. Coakley, 190 W.Va. 147, 437 S.E.2d 585 (1993) (per curiam); Hubbard v. SWCC and Pageton Coal Co., 170 W.Va. 572, 295 S.E.2d 659 (1981); Wheeling Dollar Savings & Trust Co. v. Singer, 162 W.Va. 502, 250 S.E.2d 369 In surveying the terrain occupied by th......
  • Request a trial to view additional results
10 cases
  • Weatherly v. Great Coastal Express Co., Inc., No. 1176
    • United States
    • Court of Special Appeals of Maryland
    • September 19, 2005
    ...255, 259 (1999); Hebden v. Workmen's Comp. Appeal Bd., 534 Pa. 327, 632 A.2d 1302, 1304-05 (1993); Hubbard v. SWCC & Pageton Coal Co., 170 W.Va. 572, 295 S.E.2d 659, 664-65 (1981); Taylor v. Hatzel & Buehler, 258 A.2d 905, 908 (Del.1969); Wall v. C.Y. Thomason Co., 232 S.C. 153, 101 S.E.2d ......
  • Horton v. Prof'l Bureau of Collections of Md., Inc., No. 15-0692
    • United States
    • Supreme Court of West Virginia
    • November 15, 2016
    ...all the purposes intended. Kisamore v. Coakley, 190 W.Va. 147, 437 S.E.2d 585 (1993) (per curiam); Hubbard v. SWCC and Pageton Coal Co., 170 W.Va. 572, 295 S.E.2d 659 (1981) ; Wheeling Dollar Savings & Trust Co. v. Singer, 162 W.Va. 502, 250 S.E.2d 369 (1979).State ex rel. McGraw v. Scott R......
  • Barr v. Ncb Mgmt. Serv. Inc., No. 35709.
    • United States
    • Supreme Court of West Virginia
    • June 14, 2011
    ...all the purposes intended. Kisamore v. Coakley, 190 W.Va. 147, 437 S.E.2d 585 (1993) (per curiam); Hubbard v. SWCC and Pageton Coal Co., 170 W.Va. 572, 295 S.E.2d 659 (1981); Wheeling Dollar Savings & Trust Co. v. Singer, 162 W.Va. 502, 250 S.E.2d 369 (1979).State ex rel. McGraw v. Scott Ru......
  • State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., PONTIAC-BUIC
    • United States
    • Supreme Court of West Virginia
    • July 19, 1995
    ...all the purposes intended. Kisamore v. Coakley, 190 W.Va. 147, 437 S.E.2d 585 (1993) (per curiam); Hubbard v. SWCC and Pageton Coal Co., 170 W.Va. 572, 295 S.E.2d 659 (1981); Wheeling Dollar Savings & Trust Co. v. Singer, 162 W.Va. 502, 250 S.E.2d 369 In surveying the terrain occupied by th......
  • Request a trial to view additional results

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