Meeks v. State Compensation Com'r, 11003

• Decision Date: 23 September 1958
• Docket Number: No. 11003,11003
• Citation: 104 S.E.2d 865,143 W.Va. 732
• Court: West Virginia Supreme Court
• Parties: Elva MEEKS v. STATE COMPENSATION COMMISSIONER et al.

Page 865

104 S.E.2d 865

143 W.Va. 732

Elva MEEKS v. STATE COMPENSATION COMMISSIONER et al.

No. 11003.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 3, 1958.

Decided Sept. 23, 1958.

Syllabus by the Court

1. 'In a compensation case, where the compensation commissioner makes a finding of permanent partial disability, and an award of compensation based thereon, which award becomes final by failure to protest against or appeal therefrom, the case cannot be reopened, or any further award of compensation made therein unless there is a showing of 'a progression or aggravation in claimant's condition, or some other fact or facts which were not theretofore considered by the commissioner in his former findings, and which would entitle such claimant to a greater benefit than he has already received * * *,' Acts of the Legislature, 1939, Chapter 137, Article 5, Sections 1-(a) and 1-(b).' Blevins v. State Compensation Commissioner 127 W.Va. 481, , Point 2 Syllabus.

2. Where a claim for reopening has been held by the commissioner to be supported by insufficient evidence, and no appeal has been taken to the Workmen's Compensation Appeal Board within the thirty-day period provided by statute, and thereafter the claimant files a second petition which, in effect, is supported solely by the evidence previously submitted with the first petition, the commissioner has no jurisdiction to reopen the claim and it is reversible error for the Workmen's Compensation Appeal Board to review the action of the commissioner and to order a reopening of the claim.

Estep, Smith & Eiland, Edward Eiland, Logan, for appellant.

Ira P. Hager, Logan, for appellee.

DONLEY, Judge.

This case presents a narrow but interesting and important point relating to procedure under the Workmen's Compensation Act.

The claimant, Elva Meeks, was injured while employed by Island Creek Coal Company, and sustained a severe injury to his back. Claimant was granted an award of twenty-five per cent permanent partial disability by order entered on April 19, 1957. On July 24, 1957, the claimant, by his attorney, filed a petition for reopening of the claim, which petition was accompanied by a report of Dr. Frank R. Jamison, dated July 12, 1957, in the form of a letter to claimant's attorney. On August 8, 1957, the commissioner notified the claimant that:

'It is the opinion of the Commissioner that proper showing for reopening of your case has not been made, and you have thirty days from receipt of this letter within which to make application for an appeal from this ruling to the Workmen's Compensation Appeal Board. However, if you do not desire to appeal at this time, and desire to present evidence in accordance with Section 1(a), Article 5, Chapter 23 of the Code to the effect that there has been a progression or aggravation in your condition, or submit some fact or facts not considered by the Commissioner in his former findings, such evidence will be carefully reviewed, and a further ruling made thereon, if submitted within the statutory period.'

Claimant did not appeal to the Workmen's Compensation Appeal Board from this ruling of the commissioner. Instead of availing himself of the statutory right of appeal, the claimant by his attorney again petitioned the commissioner for the reopening of his claim on November 27, 1957, which petition was accompanied by a report from Dr. Ralph Frazier, which report was in the form of a letter addressed to counsel for the claimant. The letter of November 27, 1957, from the claimant's attorney to the commissioner, enclosing Dr. Frazier's report, dated August 30, 1957, requested that the said letter and medical report be considered as a supplement to the original petition of July 24, 1957, and that both petitions and medical reports be read together.

By letter dated December 30, 1957, the commissioner informed the claimant that his attorney's letter of November 27, 1957, accompanied by Dr. Frazier's report, did not make a proper showing for reopening of his claim. The claimant appealed from this ruling to the Workmen's Compensation Appeal Board which, on May 20, 1958, reversed the commissioner's order of December 30, 1957, and remanded the claim to the commissioner upon the ground that a prima facie showing had been made in accordance with the opinion of the Appeal Board attached to the order.

The employer now appeals to this Court from such order of the Appeal Board. In the written opinion attached to the Appeal Board's order it said, in part:

'We do not think that the Frazier report, submitted as a part of claimant's petition to reopen of November 27, 1957, illuminates the way here. While these things have never been considered by the Commissioner, according to the file, it is most difficult to attach any significance to the existence of astigmatism, arterosclerosis, and pyorrhea to this back case. Cephalgia is a sort of headache and is not new to this case. The diagnosis 'old fracture of the spine' evidently was made from claimant's history. The x-rays disprove it.'

It thus appears that both the commissioner and the Appeal Board were of the opinion that the evidence submitted for reopening of the claim on the basis of Dr. Frazier's report was insufficient. However, the Appeal Board went back to the report of Dr. Jamison and found that it did constitute a sufficient basis for reopening the claim. The Appeal Board opinion further stated: 'We are of opinion that the Jamison report, although apparently abandoned, became and was a part of the petition to reopen filed under date of November 27, 1957.'

It is the position of the company, as set forth in its assignments of error, that the Appeal Board erred in holding that the report of the examination by Dr. Jamison became a part of claimant's application for reopening, and that the Appeal Board erred in reopening the claim upon the basis of the medical evidence submitted in support of the first application, which medical evidence had been held insufficient by the commissioner to justify reopening of the claim, no appeal having been taken from said action of the commissioner within the thirty-day period provided by statute.

In brief, the point made by the employer is that the claim cannot be reopened solely upon the basis of a medical report which has been previously considered by the commissioner and which he has held to be insufficient to justify such reopening, when no appeal from that ruling of the commissioner was taken within the thirty-day period allowable by statute. It contends that since both the commissioner and the Appeal Board held that Dr. Frazier's report was insufficient to justify reopening of the claim, then the second petition should be considered as if it rested solely upon the basis...