Munday v. State Workmen's Compensation Commissioner

• Decision Date: 10 November 1970
• Docket Number: No. 12988,12988
• Citation: 154 W.Va. 571,177 S.E.2d 221
• Parties: Elzie MUNDAY v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Omar Mining Company and Wheeling-Pittsburgh Steel Corporation.
• Court: West Virginia Supreme Court

Page 221

177 S.E.2d 221

154 W.Va. 571

Elzie MUNDAY v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Omar Mining Company and Wheeling-Pittsburgh Steel Corporation.

No. 12988.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 8, 1970.

Decided Nov. 10, 1970.

Syllabus by the Court

1. 'The state compensation commissioner has no power or jurisdiction to vacate, set aside or modify a final order made by him, except in instances in which it appears that he lacked jurisdiction to enter such order or that it was made or procured through fraud or mistake.' Point 1, syllabus, Partlow v. Workmen's Compensation Commissioner, 150 W.Va. 416 (146 S.E.2d 833).

2. The nonmedical finding in an order of the state compensation commissioner that the employment of the claimant for the period September 3, 1968 to December 31, 1968, instead of his employment for the undisputed and obviously correct period September 8, 1958 to December 31, 1968, by his former employer, is a mistake within the exception to the rule enunciated and applied in previous decisions of this Court and the commissioner has jurisdiction to correct such mistake, even though no objection to such finding was filed within the time permitted by statute.

Schmidt, Laas, Schrader & Miller, Arthur M. Recht, Wheeling, for Wheeling-Pittsburgh Steel Corp.

HAYMOND, Judge:

This is an appeal by Wheeling-Pittsburgh Steel Corporation, a corporation, employer of the claimant Elzie Munday, from a final order of the Workmen's Compensation Appeal Board entered May 25, 1970, which affirmed a final order of the State Workmen's Compensation Commissioner entered December 10, 1969.

The claim, filed April 29, 1969, is for silicosis benefits for the claimant Elzie Munday and the question for decision is whether the commissioner has jurisdiction to set aside and modify the allocation of compensation payments based upon a clearly incorrect nonmedical finding of the period of employment of the claimant by his former employer in an order of the commissioner entered July 30, 1969, to which no protests or objections were filed.

The award of 30% Permanent partial disability in favor of the claimant was granted by final order entered by the commissioner December 10, 1969, and by that order payments of the award were allocated between the former employer and the present employer of the claimant on the basis of the incorrect nonmedical finding of the periods of employment of the claimant in the former order of the commissioner of July 30, 1969.

The appeal by the present employer was filed January 28, 1970, and within thirty days from the receipt by the employer of the notice of the commissioner of the entry of his final order or December 10, 1969.

By the nonmedical order of the commissioner entered July 30, 1969, the commissioner found that the claimant was employed as a coal minor by Omar Mining Company from September 3, 1968 to December 31, 1968, and by the same company at different dates since 1928, and by Wheeling-Pittsburgh Steel Corporation from January 1, 1969 to the date of the order. The order also contained the statement that the commissioner was of the opinion that the claimant was exposed to the hazard of silicon dioxide dust for a continuous period of not less than 60 days while in the employ of those employers within three years prior to the filing of his claim and that he had been exposed to such hazard in this State for a continuous period of not less than two years during the ten years immediately preceding the date of his last exposure and referred the claim to the Silicosis Medical Board for review and disposition. Wheeling-Pittsburgh Steel Corporation did not protest or file any objection to the order of July 30, 1969, or the nonmedical finding of the commissioner that the period of employment of the claimant by Omar Mining Company was from September 3, 1968 to December 31, 1968.

Pursuant to the order of July 30, 1969, the Occupational Pneumoconiosis Board, which had succeeded the Silicosis Medical Board, in its report of November 18, 1968, found that the claimant was suffering from an advanced stage of silicosis with 30% Impairment of his capacity to work due to that disease; and by the final order of December 10, 1969, the commissioner affirmed the findings of the board and granted the claimant a 30% Disability award for silicosis in the advanced stage and allocated the payments of the award on the basis of 50.21% By Omar Mining Company and 49.79% By Wheeling-Pittsburgh Steel Corporation.

Upon this appeal the employer Wheeling-Pittsburgh Steel Corporation seeks reversal of the order of July 30, 1969, by which the commissioner incorrectly found the period of the employment of the claimant by Omar Mining Company to be September 3, 1968 to December 31, 1968, and also seeks reversal of the final order of December 10, 1969, by which the commissioner, upon the incorrect finding of the period of employment of the claimant by Omar Mining Company, allocated the award between the employers on the basis of 50.21% By Omar Mining Company and 49.79% By Wheeling-Pittsburgh Steel Corporation.

The amount of the award in favor of the claimant is not challenged by either employer, and the former employer, Omar Mining Company, has not appeared to this appeal or filed any brief in this Court.

The employer Wheeling-Pittsburgh Steel Corporation insists that the allocation is plainly wrong because it is based upon a mistake in the period of employment of the claimant by Omar Mining Company in the order of the commissioner of July 30, 1969. The work record of the claimant as set forth in Form C.D. 6--Z shows, in addition to earlier employment, that he was employed from May 3, 1955 to March 28, 1958, by Omar Mining Company; that from March 28, 1958 to September 8, 1958, he did not work due to a reduction in force; that he was last employed by Omar Mining Company from September 8, 1958 to December 31, 1968; and that since January 1, 1969, he has been employed by Wheeling-Pittsburgh Steel Corporation. The period of employment with his former employer Omar Mining Company, as stated in the order of July 30, 1969, from September 3, 1968 to December 31, 1968, omits entirely the portion of his employment by Omar Mining Company prior to September 3, 1968.

As there is no dispute as to the period in time of the last employment of the claimant by his former employer Omar Mining Company and as the record clearly shows that he was last employed by Omar Mining Company from September 8, 1958 to December 31, 1968, it is obvious that the nonmedical finding of the commissioner that the employment...