Martin v. State Comp. Comm'r, (No. 7224)

• Court: Supreme Court of West Virginia
• Writing for the Court: WOODS, J.
• Citation: 111 W.Va. 420
• Parties: Tracy Martin v. State Compensation Commissioner
• Decision Date: 19 January 1932
• Docket Number: (No. 7224)

111 W.Va. 420

Tracy Martin
v.
State Compensation Commissioner

(No. 7224)

Supreme Court of Appeals of West Virginia.

Submitted January 13, 1932.
Decided January 19, 1932.

[111 W.Va. 420]

Master and Servant

A claimant, upon the production of substantial evidence showing a present total disability attributable to the original injury but not before the commissioner at the time of the former award, is entitled to have the case reopened, provided the commissioner's jurisdiction under Code, 23-4-16, has not ended.

Appeal from Award of Compensation Commissioner.

Proceeding under the the Workmen's Compensation Act by Tracy Martin to have his claim for compensation reopened. From an adverse ruling of the State Compensation Commissioner, the claimant appeals.

Case remanded, with directions.

England & Ritchie, for appellant.

Howard B. Lee, Attorney General, and R. Dennis Steed, Assistant Attorney General, for respondents.

Woods, Judge:

Tracy Martin, who, on December 19, 1928, received injuries to his chest and back due to a slate fall, seeks to have his claim reopened, on the ground that the award made on September 10, 1930, of 25% disability carrying compensation

[111 W.Va. 421]

for 100 weeks and expiring on November 26, 1930, did not contemplate his present condition.

It appears from the record that Martin was carried on a temporary disability rating at the instance of the local doctors, before whom he was required to appear from time to time, until one of their number recommended a 25% disability rating, which was immediately adopted by the commissioner in his award of September 10, 1930. In January, 1931, after payments had ceased, application was made to reopen the case. Claimant was called to Charleston, where he was, for the first time, examined by the department's chief medical examiner. After a consideration of claimant's condition, as revealed by said examination, and an X-ray report, the commissioner informed claimant that, with payments already made, he had been fully compensated, and that his claim stood closed as of date of the last payment, Seven months later claimant, by letter, again importuned the commissioner, enclosing therewith his own affidavit and certain medical evidence to support his claim that he was 100%...