Hughes v. State Compensation Com'r, 12048
| Decision Date | 27 September 1960 |
| Docket Number | No. 12048,12048 |
| Citation | 145 W.Va. 629,116 S.E.2d 153 |
| Court | West Virginia Supreme Court |
| Parties | Mrs. John M. HUGHES v. STATE COMPENSATION COMMISSIONER et al. |
Syllabus by the Court.
1. 'The Workmen's Compensation Appeal Board has no authority to enter a nunc pro tunc order.' Chaney v. State Compensation Commissioner et al., Point 1 Syllabus, 127 W.Va. 521 .
2. A claimant who dies from sickness or noncompensable injury pending his appeal to the Workmen's Compensation Appeal Board from an order of the State Compensation Commissioner denying further benefits to him is not, at the time of his death, 'a claimant to whom an award has been made' as contemplated by Code, 23-4-6(e) as amended.
Estep, Smith & Eiland, Edward I. Eiland, Logan, for appellant.
Jeter & Jeter, Lucille C. Jeter, Charleston, for appellee.
This case is before the Court on appeal from an order of the Workmen's Compensation Appeal Board dated May 20, 1960, which reversed an order of the State Compensation Commissioner dated January 15, 1960. The basic question presented by this appeal relates to the action of the board in undertaking to give a retroactive effect to its order.
In seeking a further permanent partial disability award, John M. Hughes, who will be referred to herein as 'the claimant', obtained a reopening of his claim on May 26, 1958. Previously he had been granted and paid a fifty per cent permanent partial disability award. On July 17, 1958, the commissioner ruled that the claimant was not entitled to a further permanent partial disability award. The claimant protested this ruling and, after a hearing, the commissioner, on June 9, 1959, entered an order affirming his previous ruling. From that order the claimant appealed to the Workmen's Compensation Appeal Board.
The case was submitted to the appeal board for decision on August 5, 1959, at its regular August, 1959, session. Though the pertinent statute, Code, 23-5-3 as amended, provides that such appeals 'shall be decided by the board at the same session at which they are heard, unless good cause for delay thereof be shown and entered of record', it was not until December 10, 1959, that the appeal board entered an order reversing the commissioner's order of June 9, 1959, and directing that the claimant be granted a sixty per cent permanent partial disability award, less compensation theretofore paid. The claimant having been paid on the basis of fifty per cent theretofore, the effect of the board's order was to make a ten per cent additional award.
The claimant died on November 17, 1959, from a cause unrelated to his injury and previous employment. On January 4, 1960, the employer's attorneys wrote a letter to the commissioner, enclosing a certified copy of the death certificate and asserting that no compensation should be paid under such circumstances pursuant to the appeal board's order of December 10, 1959. On January 15, 1960, the commissioner entered an order as follows:
'This claim came on again to be considered this 15th day of January, 1960, upon the order of the Workmen's Compensation Appeal Board, entered on December 10, 1959; and it appearing to the Commissioner from a certified copy of the death certificate, duly recorded with the Registrar of the Department of Health of the State of West Virginia, that claimant died of non-industrial causes on November 17, 1959, prior to the entry of said Appeal Board order and that on November 17, 1959, the Commissioner's ruling of June 9, 1959, appealed from, was in full force and effect; upon consideration of all of which, it is ordered and directed that the said Commissioner's ruling of June 9, 1959, be and the same is hereby affirmed; all of which is accordingly so ordered.'
The claimant's widow, as his dependent, appealed to the appeal board from the commissioner's order quoted immediately above. On May 20, 1960, the appeal board entered the order from which the employer has appealed to this Court, which order is in part as follows:
A portion of the appeal board's written opinion is as follows:
'The case * * * was submitted on appeal to this Board, by counsel for both parties, on August 5, 1959, being the second day of the three day regular August Session. As is the custom of the present Board, and as is shown by our notes, we discussed this case and arrived at the decision set forth in the foregoing opinion before leaving Charleston following the conclusion of the arguments as to cases on the August, 1959, docket. It will be noted that the words 'August Session 1959' appear in the caption of the opinion issued in the Hughes case, that being the Session when the case was submitted and decided.
'As reflected by notes made by the member of the Board to whom the writing of the opinion in this case was assigned, the foregoing opinion, after being written, was mailed to the office of the Appeal Board in Charleston on October 21, 1959.
'The order pertaining to the foregoing opinion and formally directing that the order of the Commissioner of June 9, 1959 be reversed and the claimant paid a 60% permanent partial disability award, less prior payments, was not entered until December 10, 1959'.
Code, 23-5-2 as amended, provides in part: '* * * the board shall meet at the capitol or at such other places throughout the States as it may deem proper, at regular sessions commencing on the first Tuesday in February, April,...
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Martin v. Workers Compensation Div.
...sought by her late husband. First in that line is a case with facts very similar to the instant case. In Hughes v. State Compensation Comm'r, 145 W.Va. 629, 116 S.E.2d 153 (1960), Mr. Hughes was a workers' compensation claimant who had received a 50 percent permanent partial disability awar......
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Wingrove v. WORKERS'COMPENSATION DIV.
...of unpaid benefits to a claimant's dependents after his or her death. See syl. pt. 2, in pertinent part, Hughes v. State Compensation Comm'r, 145 W.Va. 629, 116 S.E.2d 153 (1960) (no benefits because deceased claimant was not "a claimant to whom an award has been made"). Several exceptions ......