Jarrell v. State Workmen's Compensation Commissioner

• Decision Date: 29 October 1968
• Docket Number: No. 12739,12739
• Citation: 152 W.Va. 418,163 S.E.2d 798
• Court: West Virginia Supreme Court
• Parties: Lonnie JARRELL v. STATE WORKMEN'S COMPENSATION COMMISSIONER, and the Carbon Fuel Company.

Page 798

163 S.E.2d 798

152 W.Va. 418

Lonnie JARRELL v. STATE WORKMEN'S COMPENSATION COMMISSIONER, and the Carbon Fuel Company.

No. 12739.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 8, 1968.

Decided Oct. 29, 1968.

Syllabus by the Court

1. When a statute is clear and unambiguous and the legislative intent is plain, it is the duty of the courts to apply the statute in accordance with the legislative intent therein clearly expressed.

2. 'An adjudication of the State Compensation Commissioner granting or denying a claim for workmen's compensation is a final disposition thereof and becomes final upon the entry of his order.' Point 1 Syllabus, Dismond v. State Compensation Commissioner, 148 W.Va. 26, 132 S.E.2d 743.

3. 'The State Compensation Commissioner has no power or jurisdiction to vacate, set aside or modify a final order made by him, except in the instances specifically provided by statute.' Point 1 Syllabus, Cottrell v. State Compensation Commissioner, 145 W.Va. 336, 115 S.E.2d 153.

Jackson, Kelly, Holt & O'Farrell, John L. McClaugherty, Louis S. Southworth, II, Charleston, for appellants.

George G. Burnette, Jr., Charleston, for appellee.

CALHOUN, Judge:

This workmen's compensation case is before the Court on an appeal by the employer, The Carbon Fuel Company, for review of an order entered by the Workmen's Compensation Appeal Board on January 10, 1968, which affirmed an order of the West Virginia Director of Workmen's Compensation (now known as West Virginia Workmen's Compensation Commissioner) entered on October 4, 1967, by which he awarded silicosis benefits to the claimant, Lonnie Jarrell.

The claim directly involved in this case relates to the second application for silicosis benefits filed by the claimant. The primary question presented for decision on this appeal is whether the claimant is precluded under the provisions of Code, 1931, 23--5--1, as amended, from a right to an award of benefits upon this second application by reason of his failure, within thirty days, to object in writing to the finding of the director in relation to the proceedings upon the first application.

The claimant ceased work for the employer on December 20, 1963, when the coal mine at which he was employed terminated its operations. On August 19, 1964, the claimant filed a claim for silicosis benefits. In its report in relation to the claim, the employer questioned the contention of the claimant that he had been exposed to the hazard of silicon dioxide dust in accordance with the requirements of Code, 1931, 23--4-- 15b, as amended. On September 10, 1964, the director entered an order as follows:

'This claim came on to be considered this 10th day of September, 1964, upon the claimant's application for silicosis benefits, filed August 19, 1964, and upon a review of the entire record; and it appearing therefrom that claimant has made no prima facie showing that he has contracted the disease silicosis, and the Director being of the opinion that claimant has not been exposed to the hazard of silicon dioxide dust in harmful quantities for a continuous period of sixty days or more, within two years prior to the filing of his said application, it is hereby ordered and directed that this claim be and the same is hereby denied; all of which is accordingly so ordered.'

It will be noted that by his order the director (a) found that the claimant had made no prima facie showing that he had contracted the disease silicosis; (b) found that he had not been exposed to the hazard of silicon dioxide dust as required by the pertinent statute; and directed that the claim be denied.

On September 14, 1964, R. Jack Canterbury, Secretary, Workmen's Compensation Fund, directed a letter to the claimant and to the employer. The letter notified the parties of the director's action and quoted the order which had been entered by the director. The concluding paragraph of the letter is as follows: 'Either party has thirty days from receipt of this order within which to enter objection in writing thereto.'

No protest or objection was made to the director's order of September 10, 1964, in accordance with Code, 1931, 23--5--1, as amended.

On October 8, 1965, the claimant filed the second application or claim for silicosis benefits. The proceedings upon this second application are involved in the case presently before the Court. In the second application, the claimant stated that he had not applied previously for silicosis benefits. On December 1, 1965, the West Virginia Workmen's Compensation Commissioner, (the title of his official position having been changed by an act of the legislature which became effective July 1, 1965), entered a nonmedical order referring the claim to the Silicosis Medical Board. A protest to that action was made by the employer. Pursuant to that protest, a nonmedical hearing was held on June 17, 1966.

At the hearing, the employer introduced in evidence a copy of the claimant's initial application for silicosis benefits. It was stipulated that the claimant received a copy of Mr. Canterbury's letter of September 14, 1964. The claimant admitted that he had not been exposed to the hazard of silicon dioxide dust subsequent to the period of employment referred to in his initial application for silicosis benefits. The employer moved that the claim be dismissed on the ground that the claimant's contention that he is entitled to silicosis benefits was irrevocably determined against him as a consequence of the law applicable to the proceedings in connection with his initial claim. Under date of July 5, 1966, the motion to dismiss was denied and the claim was referred to the Silicosis Medical Board which, on November 1, 1966, determined that there was sufficient evidence to justify a diagnosis of silicosis. The employer promptly objected to that action of the board. A hearing was held before the Silicosis Medical Board on May 17, 1967. At this hearing, the employer renewed its motion to dismiss the claim. The trial examiner denied the motion.

On October 4, 1967, the commissioner entered an order making a 20% Award of silicosis benefits to the claimant. Upon appeal by the employer, the appeal board, by its order entered on January 10, 1968, affirmed the ruling and order of the commissioner. From that action of the appeal board, the employer has been granted the appeal to this Court.

The...