Maxwell v. State Compensation Director

• Citation: 144 S.E.2d 493,150 W.Va. 123
• Decision Date: 12 October 1965
• Docket Number: No. 12476,12476
• Court: West Virginia Supreme Court
• Parties: Kiter MAXWELL v. STATE COMPENSATION DIRECTOR et al.

Page 493

144 S.E.2d 493

150 W.Va. 123

Kiter MAXWELL v. STATE COMPENSATION DIRECTOR et al.

No. 12476.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 7, 1965.

Decided Oct. 12, 1965.

Syllabus by the Court

1. '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.' Point 1 Syllabus, Hardin v. Workmen's Compensation Appeal Board et al., 118 W.Va. 198, 189 S.E. 670.

2. The workmen's compensation statutes, including amendments thereof, become an integral part of and must be read into the contract of employment existing between the employer and the employee.

3. Workmen's compensation statutes, or amendments of such statutes, which affect merely the procedure may be construed to have a retroactive operation; but any such statute or amendment which affects the substantial rights or obligations of the parties to the contract arising from the employment relationship or which impairs the obligation of such a contract cannot be construed to operate retroactively.

4. A workmen's compensation statute, or any amendment of such a statute, which becomes effective after the employee ceases his employment and which increases the amount of benefits payable to a dependent of the employee cannot be construed to operate retroactively.

5. To the extent that Webb v. State Compensation Commissioner, 138 W.Va. 21, 76 S.E.2d 248, and Peak v. State Compensation Commissioner, 141 W.Va. 453, 91 S.E.2d 625, are inconsistent with the decision of the Court expressed in this opinion, they are expressly overruled.

Dayton, Campbell & Love, George W.S. Grove, Jr., Charleston, for appellant.

Patrick J. Flanagan, Welch, for appellee.

CALHOUN, Judge.

This case is before the Court on an appeal by the employer, United States Steel Corporation, from an order of the workmen's compensation appeal board dated May 10, 1965, which affirmed a ruling of the workmen's compensation director dated December 15, 1964, by which Kiter Maxwell was awarded benefits as a dependent widow at the rate of $75.00 a month.

The pertinent facts are undisputed. The primary question presented for decision is whether the widow is entitled to benefits at the rate of $75.00 a month under the statute which was in effect when her husband died on May 22, 1963, as a result of third stage silicosis, or whether she is entitled to benefits at the rate of $65.00 a month under the statute in effect when the deceased husband terminated his employment in the employer's coal mine on November 22, 1960, because of ill health. The husband did not file a claim for workmen's compensation benefits during his lifetime, but an autopsy disclosed that his death resulted from third stage silicosis.

Counsel for the respective parties agree that at the time the employee ceased work on November 22, 1960. Code, 1931, 23-4-10, as amended in 1957, provided for benefits to a dependent widow at the rate of $65.00 a month; and that at the time of the employee's death on May 22, 1963, Code, 1931, 23-4-10, as a consequence of the 1961 amendment, provided for benefits to a dependent widow at the rate of $75.00 a month. The sole question presented for decision is, therefore, one of law.

In Hardin v. Workmen's Compensation Appeal Board et al., 118 W.Va. 198, 189 S.E. 670, the holding of the Court was summarized in the first point of the syllabus as follows: 'In case of an unjury 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.' Previous cases holding workmen's compensation statutes not to be retroactive in operation are Collett et al. v. State Compensation Commissioner, 116 W.Va. 213, pt. 1 syl., 179 S.E. 657; Cherry v. State Compensation Commissioner, 115 W.Va. 180, 174 S.E. 889; Carbon Fuel Co. v. State Compensation Commissioner et al., 111 W.Va. 639, 163 S.E. 62; Bonner v. State Compensation Commissioner, 110 W.Va. 38, 39, 156 S.E 847, 848; Jenkins v. Heaberline, 107 W.Va. 287, 148 S.E. 117. The same general legal principle was adhered to subsequently in Lester v. State Compensation Commissioner, 123 W.Va. 516, 520, 16 S.E.2d 920, 923; Greer v. Workmen's Compensation Commissioner et al., 123 W.Va. 270, 15 S.E.2d 175; Lancaster v. State Compensation Commissioner, 125 W.Va. 190, 23 S.E.2d 601; State ex rel. Conley v. Pennybacker, 131 W.Va. 442, 48 S.E.2d 9; Taylor v. State Compensation Commissioner et al., 140 W.Va. 572, 86 S.E.2d 114. The holdings of these cases are based on the presumption that statutes, including amendatory statutes, are intended to operate prospectively only and not retroactively; and upon the principle that workmen's compensation statutes become an integral part of the contract of employment between the employer and the employee. These decisions point out that a statute, if possible, will be given a construction which will avoid its unconstitutionality and that an amendment of a workmen's compensation statute cannot be construed to have a retroactive operation if the effect thereof would be to impair the obligation of the employment contract or to impair or destroy a substantial right.

The general legal principle relating to prospective operation of workmen's compensation statutes was apparently adhered to without deviation in decisions of this Court until the decision was made in Webb v. State Compensation Commissioner, 138 W.Va. 21, 76 S.E.2d 248. In that case, the employee was awarded benefits for silicosis in the third stage under a 1945 statute which required that third stage silicosis be accompanied by tuberculosis of the lungs. The employee died in 1951, after a 1949 amendment of the statute eliminated the requirement of tuberculosis. An autopsy disclosed that the employee's death resulted from silicosis unaccompanied by tuberculosis. The Court held that the 1949 act was applicable to the claim of the dependent widow and, accordingly she was awarded benefits, notwithstanding the fact that the husband's silicosis was not accompanied by tuberculosis. In a dissenting opinion, Judge Browning took the position that the effect of the decision was to give retroactive effect to the 1949 amendment, and that in that respect it was out of harmony with the Court's prior decisions.

In Peak v. State Compensation Commissioner et al., 141 W.Va. 453, 91 S.E.2d 625, the employee-husband ceased work on February 24, 1947. From that date until his death on January 11, 1953, he was continuously and totally disabled. On October 30, 1947, he filed a claim for workmen's compensation benefits. He was found to be suffering from silicosis and, accordingly, an award of benefits was made to him. An autopsy disclosed that the employee, at the time of his death, was suffering from an 'unusually advanced stage of pneumoconiosis or silicosis, third stage,' but that the silicosis was not accompanied by tuberculosis. The widow's claim for benefits was denied by the commissioner on the ground that the statute in effect at the time of the husband's last exposure required that the employee's silicosis be accompanied by tuberculosis in order to constitute silicosis in the third stage; and that retroactive effect could not be given to the 1949 statutory amendment which became effective between the date of the husband's last exposure and the date of his death and which amendment eliminated the requirement that the silicosis be accompanied by tuberculosis. The ruling of the commissioner was affirmed by the workmen's compensation appeal board. Upon appeal, this Court reversed the order of the appeal board and held that the widow was entitled to benefits. Judge Haymond wrote a dissenting opinion in which Judge Browning joined. The dissent, generally speaking, was based upon the reasoning and legal principles upon which Judge Browning relied in his dissent in the Webb case.

The holdings of the Webb and Peak cases were considered and limited in Acree v. State Compensation Commissioner et al., 146 W.Va. 654, 122 S.E.2d 291.

Terry v. State Compensation Commissioner et al., 147 W.Va. 529, 129 S.E.2d 529, involved a claim of the dependent widow and children of a deceased employee. The employee was last exposed to silicon dioxide dust in harmful quantities on August 18, 1953, and he filed his application for benefits on September 16, 1953. He was found to be suffering from silicosis and was awarded workmen's compensation benefits. At the time he was last exposed to silicon dioxide dust in harmful quantities, at the time of the filing of his claim, at the time an award of benefits was made to him, at the time of his death and at the time of the filing of the widow's claim, Code, 1931, 23-4-6a, as amended in 1949, contained the following provision relating to benefits to be paid to dependents of a deceased employee: 'If the employee dies from silicosis within six years from the date of his last injurious exposure to silicon dioxide dust in harmful quantities and the commissioner has determined at the time of the original award that he was suffering from silicosis in the third stage, the persons shall be in the amounts and to the persons provided for in section ten of this article.' (Italics supplied.) The commissioner did not determine at the time of the original award to the claimant that he was suffering from silicosis in the third stage. An autopsy disclosed, however, that the employee was suffering from silicosis in the third stage at the time the award was made to him and that his death resulted from silicosis in the third stage. At the time an award of dependent benefits was made in 1962, there was in effect a 1...