Jones v. State Comp. Comm'r
| Citation | 128 W.Va. 737 |
| Decision Date | 30 April 1946 |
| Docket Number | (No. 9814) |
| Court | Supreme Court of West Virginia |
| Parties | Gracie Jones, widow, etc, v. State Compensation Commissioner et al, |
Under Section 7, Article 6, Chapter 79, Acts of the Legislature of 1935, known as the Silicosis Act, a legal award and payment of compensation for silicosis of the first or second stage, to a person who dies within one year from the date of his last injurious exposure to silicon dioxide dust in harmful quantities does not bar allowance of compensation to his widow and dependents, where claim therefor is filed by them in the office of the State Compensation Commissioner, within one year from the date of decedent's last exposure aforesaid.
Appeal from Workmen's Compensation Appeal Board.
Proceeding under the Silicosis Act by Grade Jones, widow, etc., claimant, opposed by the New River Company, employer, to recover for the death of Arthur Jones, employee, who died from silicosis. The State Compensation Commissioner awarded compensation. From a ruling of the Workmen's Compensation Appeal Board affirming the commissioner's ruling, the employer appeals.
Affirmed.
Mahan & White, for appellant. Hillis Townsend and W. J. Thompson, for appellee. Fox, Judge:
The sole question involved on this appeal is whether the widow and dependent children of a man who had contracted silicosis, and was awarded and paid compensation for silicosis of the second stage, and who died within one year from his last injurious exposure to silicon dioxide dust in harmful quantities, and where claim for compensation was filed by his widow and dependents, within one year from the date of such last exposure, shall receive compensation in addition to that theretofore awarded and paid to deceased.
Arthur Jones, the decedent, employed by The New River Company, last worked for that company on March 16, 1944, and contracted silicosis while so employed. On April 4, 1944, he filed claim for benefits under the provisions of Chapter 79, Acts of the Legislature, 1935, known as the Silicosis Act. On this claim he was awarded compensation for silicosis in the second stage, and paid the sum of one thousand dollars as a lump sum. There was no protest nor objection by the employer at any point during the pendency of the claim. Jones never worked for the employer after the payment to him, and died on November 26, 1944. On February 16, 1945, and within one year from the date of the last exposure of decedent to silicon dioxide dust in harmful quantities, claimant herein, Grade Jones, widow, filed this claim for the benefit of herself and her dependent children. The claim was protested by the employer at every stage of the proceeding, on the ground that the payment aforesaid to Jones during his lifetime, under the statute, barred a subsequent award of compensation for silicosis to his widow and dependents. On September 19, 1945, the compensation commissioner awarded compensation of thirty dollars a month to the widow, and five dollars a month to each of three infant children of deceased, following the procedure provided for in compensation cases other than those based on silicosis. On December 8, 1945, the compensation appeal board affirmed the ruling of the compensation commissioner, and we allowed this appeal.
The case is one of first impression in this State, and must be determined by construction of Section 7, Article 6, Chapter 23, of Michie's Code, enacted into law by Chapter 79, Acts of the Legislature, 1935, and sections of Chapter 23 referred to therein. We do not consider Bowdler v. Compensation Commissioner, 124 W. Va. 629, 22 S. E. 2d 359, as helpful. There the question here presented was neither raised nor decided. There the application was not filed within one year after the last harmful exposure, and the case was decided on that point.
Section 7, of Article 6 of the Silicosis Act, first defines the three stages of silicosis, and then provides for compensation allowable for the separate stages. That part of the section referring to silicosis of the second stage is in the language following: "If the employee is suffering from silicosis of the second stage, the employee shall receive the sum of one thousand dollars as compensation in full for said disease that he has sustained as the result of and in the course of his employment, said sum to be payable as a lump sum or in periodic installments in the discretion of the Commissioner, and shall be final payment and operate as a full release by the employee for compensation and for any claim against the employer that the employee may thereafter have for silicosis, and irrespec- tive of whether the employee thereafter continues in the same employment, he shall not have the right to receive any or further compensation or make any claim because of silicosis either to the commissioner or against his employer, anything to the contrary in this chapter notwithstanding; * * *." (Italics ours).
The Silicosis Act, Chapter 79, Acts of the Legislature, 1935, is designated Article 6 of Chapter 23 of the Code, and the reference to "this chapter" in the quotation above refers to Chapter 23 of Code covering workmen's compensation claims. Section 9 of Article 6 provides that application for compensation shall be filed in the office of the compensation commissioner within one year from and after the date of the last injurious exposure to silicon dioxide dust in harmful quantities; or in case of death, the application shall be filed as aforesaid by dependents of such employee within one year from and after the date of such last exposure to silicon dioxide dust. It will be observed that the record shows that decedent last worked for employer on March 16, 1944. In the absence of any showing of a change in conditions in the mine, we think it reasonable to assume that his injurious exposure to silicon dioxide dust in harmful quantities continued to the date he ceased work.
Returning to Section 7 of Article 6 aforesaid, we find that subsections (c) and (d) read as follows:
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