Lester v. State Comp. Com'r

Decision Date07 October 1941
Docket NumberNo, 9209.,, 9209.
Citation16 S.E.2d 920
CourtWest Virginia Supreme Court
PartiesLESTER. v. STATE COMPENSATION COM'R, et al.

16 S.E.2d 920

LESTER.
v.
STATE COMPENSATION COM'R, et al.

No, 9209.

Supreme Court of Appeals of West Virginia.

Oct. 7, 1941.


[16 S.E.2d 921]
Syllabus by the Court.

1. Sub-section (d) of Code, 23-4-6, does not warrant the payment of compensation to the dependents of an employee who has been awarded compensation for an injury, and thereafter dies, from ailments not connected with his injury, prior to the full payment of the award, except as to that portion of the award which had accrued at the time of his death.

2. "Accrued compensation under Code, 23-4-6, is awarded compensation, due and payable". Wood Coal Company v. State Compensation Com'r, 119 W.Va. 581, 195 S.E. 528.

3. Sub-section 6-e, Article 4, Chapter 104, Acts of the Legislature, Regular Session, 1937, is applicable only to cases arising subsequent to the effective date thereof.

Proceeding under the Workmen's Compensation Act by Helen B. Lester, widow of Clark Lester, acting for herself and the

[16 S.E.2d 922]

dependent children of the deceased, for compensation which had allegedly accrued to her husband prior to his death, opposed by the State Compensation Commissioner and another. From a ruling of the Workmen's Compensation Board affirming action of the State Compensation Commissioner in denying the claim, the claimant appeals.

Affirmed.

Ned H. Ragland and Floyd M. Sayre, of Beckley, for appellant.

File, Scherer & File, of Beckley, for appellees.

FOX, Judge.

Clark Lester, an employee in the mines of the C. C. B. Smokeless Coal Company, was injured in the course of his employment on September 9, 1932. His injuries were of such a nature as to require the amputation of one leg at the thigh. He was awarded compensation on a temporary basis. On May 3, 1933, his disability, on a permanent partial basis, was fixed at fifty per cent under sub-section (d) of Code, 23-4-6, and compensation awarded for two hundred weeks at $10.42 per week, he being charged with $291.76 paid to him under the temporary award. On June 23, 1933, his weekly compensation was increased to $15.86 per week. In the meantime he had been advanced $225 for the purpose of purchasing an artificial limb, which amount was to be deducted from the final payments under his award. He died on August 26, 1933. A claim for compensation filed by his widow on the ground that his death resulted from the injuries mentioned above, was denied by the Compensation Commissioner on June 18, 1934. At the time of his death there was due him, for accrued compensation under his award, the sum of $58.91, and this sum was paid to his widow. The total of the final award of compensation was $3,172, and it is conceded that there has been paid thereon $533.72, leaving a balance of $2,638.28 which has not been paid.

On July 8, 1940, the widow of Lester, presumably acting for herself and the dependent children of the deceased, made application to the Compensation Commissioner for the payment to her of said balance, grounding her claim on sub-section (d) Code, 23-4-6, as well as an amendment thereof covered by Chapter 104, Acts of the Legislature, Regular Session, 1937, Article 4, section 6-e, and now appearing in Michie's Code, 1937, 23-4-6(e). The claim was denied by the Commissioner on November 20, 1940, and his action affirmed by the Compensation Appeal Board on February 22, 1941, and comes to us on appeal from said Board. We must, therefore, examine the statutes...

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