Lester v. State Comp. Comm'r., (No. 9209)

CourtSupreme Court of West Virginia
Writing for the CourtFOX.
Citation123 W.Va. 516
PartiesHelen B. Lester, Widow, etc. v. State CompensationCommissioner et al.
Docket Number(No. 9209)
Decision Date07 October 1941

123 W.Va. 516

Helen B. Lester, Widow, etc.
v.
State Compensation
Commissioner et al.

(No. 9209)

Supreme Court of Appeals of West Virginia.

Submitted September 23, 1941.
Decided October 7, 1941.


[123 W.Va. 516]

1. Workmen's Compensation

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. Workmen's Compensation

"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. Statutes

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 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 Work-

[123 W.Va. 517]

Oct. 1941]

Lester v. Comp. Comr.

517

men's Compensation Appeal Board affirming action of the State Compensation Commissioner in denying the claim, the claimant appeals.

Affirmed.

Ned H. Ragland and Floyd M. Sayre, for appellant. File, Scherer & File, 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 $225.00 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 $3,172.00, 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

[123 W.Va. 518]

Lester v. Comp. Comr. [Oct. 1941

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 relied on to ascertain whether either or both furnish a proper basis for the claim, and this requires quotation of the pertinent parts thereof.

Code, 23-4-6, sub-section (i) in effect at the date of Lester's injury reads:

"Where an injury results in temporary total disability for which compensation is awarded under subdivision (a) of this section, and such injury is later determined a permanent partial disability under subdivision (c), the amount of compensation so paid shall be considered as payment of the compensation payable for such injury in accordance with the schedule in subdivision (c). Compensation under this section shall be payable only to the injured employee, and the right thereto shall not vest in his or her estate; except that such compensation as may have accrued to...

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31 practice notes
  • Staubs v. State Workmen's Compensation Commissioner, No. 12819
    • United States
    • Supreme Court of West Virginia
    • July 15, 1969
    ...a derivative one. The concept of privity between the two types of claims was negatived in Lester v. (State) Compensation Commissioner, 123 W.Va. 516, 16 S.E.2d 920,'. To constitute res judicata there must be concurrence of these four conditions: Identity in the thing sued for; identity of t......
  • State Ex Rel. Town Of South Charleston v. Partlow, No. 10145.
    • United States
    • Supreme Court of West Virginia
    • July 6, 1949
    ...legislative intent that it shall operate retroactively is clearly indicated by its terms. Lester v. State Compensation Commissioner, 123 W.Va. 516, 16 S.E.2d 920; Central Trust Company v. Hall, 106 W.Va. 687, 146 S.E. 825; State v. Montgomery, 94 W.Va. 153, 117 S.E. 870; Fairmont Wall Plast......
  • Taylor v. State Compensation Com'r, No. 10711
    • United States
    • Supreme Court of West Virginia
    • March 8, 1955
    ...138 W.Va. 21, 76 S.E.2d 248; City of Beckley v. Hatcher, 136 W.Va. 169, 67 S.E.2d 20; Lester v. State Compensation Commissioner, 123 W.Va. 516, 16 S.E.2d 920; Central Trust Company v. Hall, 106 W.Va. 494; Harrison v. Harman, 76 W.Va. 412, 85 S.E. 646; Thomas v. Higgs, 68 [140 W.Va. 585] W.V......
  • Peak v. State Compensation Commissioner, No. 10775
    • United States
    • Supreme Court of West Virginia
    • May 22, 1956
    ...retroactive force and effect. State ex rel. Conley v. Pennybacker, 131 W.Va. 442, 48 S.E.2d 9; Lester v. State Compensation Commissioner, 123 W.Va. 516, 16 S.E.2d 920; Fairmont Wall Plaster Company v. Nuzum, 85 W.Va.[141 W.Va. 465] 667, 102 S.E. 494; Harrison v. Harman, 76 W.Va. 412, 85 S.E......
  • Request a trial to view additional results
31 cases
  • Staubs v. State Workmen's Compensation Commissioner, No. 12819
    • United States
    • Supreme Court of West Virginia
    • July 15, 1969
    ...a derivative one. The concept of privity between the two types of claims was negatived in Lester v. (State) Compensation Commissioner, 123 W.Va. 516, 16 S.E.2d 920,'. To constitute res judicata there must be concurrence of these four conditions: Identity in the thing sued for; identity of t......
  • State Ex Rel. Town Of South Charleston v. Partlow, No. 10145.
    • United States
    • Supreme Court of West Virginia
    • July 6, 1949
    ...legislative intent that it shall operate retroactively is clearly indicated by its terms. Lester v. State Compensation Commissioner, 123 W.Va. 516, 16 S.E.2d 920; Central Trust Company v. Hall, 106 W.Va. 687, 146 S.E. 825; State v. Montgomery, 94 W.Va. 153, 117 S.E. 870; Fairmont Wall Plast......
  • Taylor v. State Compensation Com'r, No. 10711
    • United States
    • Supreme Court of West Virginia
    • March 8, 1955
    ...138 W.Va. 21, 76 S.E.2d 248; City of Beckley v. Hatcher, 136 W.Va. 169, 67 S.E.2d 20; Lester v. State Compensation Commissioner, 123 W.Va. 516, 16 S.E.2d 920; Central Trust Company v. Hall, 106 W.Va. 494; Harrison v. Harman, 76 W.Va. 412, 85 S.E. 646; Thomas v. Higgs, 68 [140 W.Va. 585] W.V......
  • Peak v. State Compensation Commissioner, No. 10775
    • United States
    • Supreme Court of West Virginia
    • May 22, 1956
    ...retroactive force and effect. State ex rel. Conley v. Pennybacker, 131 W.Va. 442, 48 S.E.2d 9; Lester v. State Compensation Commissioner, 123 W.Va. 516, 16 S.E.2d 920; Fairmont Wall Plaster Company v. Nuzum, 85 W.Va.[141 W.Va. 465] 667, 102 S.E. 494; Harrison v. Harman, 76 W.Va. 412, 85 S.E......
  • Request a trial to view additional results

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