Lester v. State Compensation Com'r

• Decision Date: 07 October 1941
• Docket Number: 9209.
• Citation: 16 S.E.2d 920,123 W.Va. 516
• Parties: LESTER v. STATE COMPENSATION COM'R, et al.
• Court: West Virginia Supreme Court

16 S.E.2d 920

123 W.Va. 516

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

No. 9209.

Supreme Court of Appeals of West Virginia.

October 7, 1941

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 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 the date of his or her death shall be paid to the dependents of such injured employee, if there be such dependents at the time of death; ***".

Sub-division (e) of this section as amended in 1937 reads: "Should a claimant to whom has been made a permanent partial award of less than eighty-five per cent for one of the specific disabilities as set forth in subdivision (d) and subdivision (e) hereof die from sickness or non-compensable injury, the unpaid balance of such award shall be paid to claimant's dependents as defined in this chapter, if any; such payment to be in the same installments that would have been paid to claimant if living: ***".

Claimant's contention is that under the statute in effect at the date of Lester's injury she is entitled to have paid to his dependents, including herself as his widow, the full amount of the balance of the award in question; that the fixing of the award at a given sum

and for a particular number of weeks makes definite the sum of money to be paid; that the same was charged to the employer, and in legal effect set aside for the purpose of making full payment of the award in question; and that the same became a vested and accrued right which only the payment of the full amount of the award would satisfy.

Such contentions, we think, ignore the plain provisions of the statute in effect at the date of the injury. That statute says, "Compensation under this section shall be payable only to the injured employee, *** except that such compensation as may have accrued to the date of his or her death shall be paid to the dependents of such injured employee, if there be such dependents at the time of death." We would not be warranted in departing from the plain meaning of the words employed. The very language used imports a distinction between the total of the award, and that portion thereof which might accrue thereunder from time to time. If the whole of the award accrued at the date of the order making it effective, of what value is the provision that only a part of the award--the accrued portion--should be paid to dependents, and if the statute is to be given the meaning contended for by the claimant why was the 1937 amendment enacted? Furthermore, we have construed the meaning of the word "accrued" as used in this section. In Wood Coal Company v. State Compensation Com'r, 119 W.Va. 581, 195 S.E. 528, we...