Kincannon v. State Comp. Com'r

• Decision Date: 10 September 1929
• Docket Number: (No. 6596.)
• Citation: 149 S.E. 665
• Court: West Virginia Supreme Court
• Parties: KINCANNON. v. STATE COMPENSATION COM'R.

149 S.E. 665

KINCANNON.

v.STATE COMPENSATION COM'R.

(No. 6596.)

Supreme Court of Appeals of West Virginia.

Sept. 10, 1929.

Rehearing Denied Oct. 12, 1929.

(Syllabus by the Court.)

Appeal from Award of Compensation Commissioner.

Proceeding under the Workmen's Compensation Act by Charles Kincannon, opposed by the State Compensation Commissioner. From an award of the Commissioner, refusing to reopen a claim for additional compensation, claimant appeals. Reversed and remanded, with directions.

England & Ritchie, of Charleston, for appellant.

Howard B. Lee, Atty. Gen., and R. Dennis Steed, Asst. Atty. Gen., for respondent.

WOODS, P. Charles Kincannon, who has received compensation on the basis of a 50 per cent, disability from the workmen's compensation fund, appeals from the action of the commissioner, refusing to reopen his claim for additional compensation.

From the record before us, it would seem that the claimant is totally disabled; yet the two commissioners who have had this case before them have consistently maintained that a further consideration of the claim was barred by reason of a certain writing, executed by claimant over two years ago, purporting to release and discharge the workmen's compensation fund and the commissioner from payment of any further or other sums, in consideration of a "lump sum" settlement on the $610.26 still due him at the time under the then existing award. Informal demands for a total permanent disability award having been repeatedly ignored for the above-stated reason, the claimant, on July 9, 1929, filed a formal petition, which was also denied. It is from this action that the present appeal is taken.

The Attorney General, as attorney for the commissioner, insists that any right of appeal that the claimant might have had has been barred by the statute of limitations provided for in the act. See section 43, c. 15P, Code. While technically claimant had a right of appeal from the finding of 50 per cent, permanent disability, and on the case then made would have had to have appealed within three months from the entry of such order, yet in the light of section 40, c. 15P, Code, failure to appeal from that finding did not preclude him from subsequently offering proof of total permanent disability, as the claim was a continuing one and subject to be reopened at any future time. This section was evidently inserted in the act in order that neither claimant nor employee might be dealt with unjustly. When an employee is injured, the commissioner collects the facts of such injury and determines the degree of disability caused by reason thereof, so far as is possible at the time. In many cases the degree of disability cannot be definitely ascertained for a long time. In such cases there is but one thing the commissioner can do, and that is to make a finding...