Lancaster v. State Compensation Com'r

• Decision Date: 08 December 1942
• Docket Number: 9390.
• Citation: 23 S.E.2d 601,125 W.Va. 190
• Parties: LANCASTER v. STATE COMPENSATION COM'R et al.
• Court: West Virginia Supreme Court

23 S.E.2d 601

125 W.Va. 190

LANCASTER v. STATE COMPENSATION COM'R et al.

No. 9390.

Supreme Court of Appeals of West Virginia.

December 8, 1942

Mrs. Lucille C. Jeter, of Charleston for appellant.

No appearance on behalf of appellees.

RILEY Judge.

Hester Siner Lancaster, widow of Robert Lancaster, deceased, appeals from an order of the Compensation Appeal Board, affirming an order of the Compensation Commissioner entered on April 16 1942, refusing to reinstate her to the compensation rolls from which she had been suspended by order of the Commissioner entered on February 13, 1936, and also refusing payment of past-due installments of compensation.

Decedent was fatally injured on June 25, 1914, while working for the Solvay Collieries Company, predecessor of Kingston-Pocahontas Coal Company. Under the Compensation Act, as originally enacted, Acts, West Virginia Legislature, Regular Session, 1913, Chapter 10, Section 33(4), claimant and her children were awarded compensation on the then statutory basis of twenty dollars per month to the widow and five dollars monthly for each child. The order making the award was destroyed in the fire which burned the capitol building in 1921 and no copy thereof is contained in this record.

Claimant received her compensation checks regularly each month until June, 1919, when, in search of work, she placed her two children in her mother's care and left the home where she had been staying with her father and mother. The Commissioner was not advised as to her change of address, and, consequently, two checks were mailed to her original address. Claimant's mother, not knowing her daughter's whereabouts, returned the checks to the Commissioner. Claimant did not return to her parents' home until 1935. She then learned for the first time that the compensation checks, with the exception of the two which were returned, had not been received and the proceeds applied to the support of her family, and promptly wrote the Commissioner asking for the payment of the past-due installments.

After an investigation the Commissioner, without any hearing, entered an order on February 13, 1936, stopping payment of compensation to claimant as of June, 1919, the date of the last payment, on the ground that she had been illicitly living with a man or men as a wife and had lived a life of prostitution. The statute, Acts, West Virginia Legislature, Regular Session, 1935, Chapter 78, Section 10(d), under which the Commissioner acted in stopping compensation, was in force when the order of April 16, 1942, complained of here, was entered, Code, 23-4-10(d). It was not until the enactment of Acts, West Virginia Legislature, 1915, Chapter 9, Section 33(c), that the provision for the forfeiture of compensation on the basis of misconduct of a widow or widower, relied upon by the Commissioner and the Appeal Board, was incorporated in the Workmen's Compensation Act.

Thus

the question which initially and fairly arises is whether the claimant's right to payments under the award is governed by the statute in force at the date of the fatal injury, June 25, 1914, or at the time of the alleged misconduct.

Because the relation between the employer and employee, under the Workmen's Compensation Act, is voluntary, it is contractual and the statute becomes an integral part of the contract. Gooding v. Ott, State Compensation Commissioner, 77 W.

Va. 487, Pt. 2, Syl., 87 S.E. 862, L.R.A. 1916D, 637; Hardin v. Workmen's Compensation Appeal Board, 118 W.Va. 198, 200, 189 S.E. 670. Upon this theory courts generally postulate the rule that as regards an injured employee the time of injury is determinative of whether the earlier or later provisions of the Workmen's Compensation Act apply. For a collation of authorities, see A.L.R. note to Coté, Adm'x, v. Bachelder-Worcester Company, 85 N.H. 444, 160 A. 101, 82 A.L.R. 1239, note pages 1244, 1245. And the rule likewise is applicable to dependents of an employee killed in the course of and as a result of his employment. See above-mentioned note, pages 1245-1249, inclusive, citing Stanswsky v. Industrial Commission, 344 Ill. 436, 176 N.E. 898; Playhouse Theatre v. Industrial Commission, 346 Ill. 509, 179 N.E. 89; Riggs v. Lehigh Portland Cement Co., 76 Ind.App. 308, 131 N.E. 231; Thorpe v. Department of Labor & Industries, 145 Wash. 498, 261 P. 85, and other cases. In Riggs v. Lehigh Portland Cement Co., supra, the Supreme Court of Indiana held applicable to claim of dependents a statute in force at the time of the injury, which provided that the marriage of the mother should terminate the dependency of a surviving dependent child. In holding inapplicable an amendment of the statute providing that, on the marriage of the widow, her dependency would terminate, but not the dependency of the child, the court said: "To permit subsequent legislation to increase or diminish the compensation specified in awards would be to strike down vested rights. Then no one would be secure. The resulting uncertainty, distrust, and confusion would destroy the compensation plan itself. To give to the amendment the effect desired by appellant would be to confer on the child a substantive right which she did not possess at the time of the injury and death of her father, and to impose on the employer a burden not imposed by the law at that time, and would be giving an unwarranted retroactive effect to the amendment." [76 Ind.App. 308, 131 N.E. 232.]

The rule likewise prevails in this jurisdiction. In Hardin v. Workmen's Compensation Appeal Board, supra, Pt. 1 Syl. this Court held: "In case of an injury resulting in the death of an employee, the statute governing compensation to the dependents of the deceased, in effect at the date of the original injury, controls the award, and not the statute in force at the date of the death of the employee." See, also Jenkins v. Heaberlin, 107 W.Va. 287, Pt. 1, Syl., 148 S.E. 117, explained in Carbon Fuel Co. v. State Compensation Commissioner, 111 W.Va. 639, 640, 163 S.E. 62; Cherry v. State Compensation Commissioner, 115 W.Va. 180, 174 S.E. 889. We think these authorities represent sound law, and that claimant is entitled to payment of compensation on the basis of twenty dollars per month from the time she received her last payment in June, 1919, and future payments on the same basis.

In the consideration of this case we have noted that the Commissioner entered the order of February 13, 1936, stopping claimant's compensation as of June, 1919, without according her a hearing. True, the order was entered after an investigation, but the statute under which the compensation was stopped, Acts, West Virginia Legislature, Regular Session, 1935, Chapter 78, Section 10(d), provides for both investigation and hearing "as provided in article five of this chapter". Claimant did not demand a hearing, but she was under no obligation to do so. Article V, Section 1, of the statute provides, in part, "*** upon the making or refusing to make any modification or change with respect to former findings or orders, *** the commissioner shall give notice in writing to the *** dependent *** of his action, which action shall state the time allowed for an appeal to the board and such action shall be final unless the *** dependent shall, within thirty days after receipt of such notice, object in writing to such finding. Upon receipt of such objection *** the commissioner shall, within thirty days from the receipt of any objection to his action or finding as aforesaid, set a time and place for the hearing of evidence." Notwithstanding the foregoing provision of the statute, the Commissioner upon the entry of the order stopping compensation failed to notify claimant in writing of his action and the time for an appeal to the Compensation Appeal Board. We think, therefore, that the order of February 13, 1936, never became final, and does not bar the instant claim. On January 11, 1936, the Commissioner notified claimant, in writing, of the result of his investigation and advised claimant that, "*** in the absence of a protest and showing by you to the contrary within thirty days from this date, a formal order will be entered, stopping all payments of compensation to you, effective as of the date of the last payment thereof." This letter does not satisfy the provisions of the statute, and, moreover, the statute does not require an aggrieved claimant to produce proof within thirty days from the time she was notified of the Commissioner's intention to enter an adverse order. The question of the finality of the Commissioner's order of February 13, 1936, was raised by claimant's counsel. We have noted the impropriety of the procedure entertained by the Commissioner relating to this order. However, the initial question in this case is jurisdictional and was decided in claimant's favor, and therefore the Commissioner was without authority to enter the order of February 13, 1936, and that order cannot serve as a bar to the instant claim.

In addition to the claim for the principal of the past-due payments, claimant says that she is entitled to interest on each monthly payment which accrued since the time she made her demand on the Commissioner. No authority is cited in support of this proposition. From our own investigation we find that the weight of authority seems to support the allowance of interest on past-due payments of compensation. Johnson v. Ismert-Hincke Milling Co., 116 Kan. 731 229 P. 359; Pointe Coupee Electric M. Corporation v. Pettey, La.App., 6 So.2d 764; Garcia et ux. v. Salmen Brick & Lumber Co., 151 La. 784, 92 So. 335; Nester v. H. Korn Baking Co., 194 Iowa 1270, 190 N.W. 949; Employers' Indemnity Corporation v. Felter, Tex.Civ.App., 264 S.W. 137. However, this Court is not bound by these...