Nichols v. State Comp.

• Decision Date: 08 September 1931
• Docket Number: (No. 7074)
• Citation: 111 W.Va. 34
• Parties: W. P. Nichols v. State Compensation; Commissioner(Rehearing denied)
• Court: West Virginia Supreme Court

111 W.Va. 34

W. P. Nichols

v.State Compensation; Commissioner

(Rehearing denied)

(No. 7074)

Supreme Court of Appeals of West Virginia.

Submitted September 2, 1931.

Decided September 8, 1931.

November 2, 1930.

Master and Servant

In order that this Court may review a finding of the state compensation commissioner, adverse to a claimant and going to the basis of his right, there must be compliance by him with the pertinent requirements of Code 1931, 23-5-1, Acts 1929, chapter 71, section 43, as emphasized in Enyart v. Compensation Commissioner, 109 W. Va. 813, 155 S. E. 913.

Appeal from State Compensation Commissioner.

Proceeding under the Workmen's Compensation Act by W. P. Nichols for compensation for injuries sustained while an employee of the Cabin Creek Consolidated Coal Company. The State Compensation Commissioner denied compensation, and the claimant appeals.

Affirmed.

England & Ritchie, for appellant.

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

Maxwell, Judge:

W. P. Nichols, late employee of Cabin Creek Consolidated Coal Company, a corporation, having been denied compensation by the Workmen's Compensation Commissioner for impairment of vision due to personal injuries alleged to have been received while in the employ of said company, brings his case before us for review.

Claimant says there were two injuries. First: That on the 21st of October, 1926, while loosening coal with a pick from the bottom of the room in the mine where he was working, a piece of coal the size of a goose egg flew up as a result of the force of the strokes with the pick and struck him in his left eye, and that particles of coal lodged in his eye. Second: That on the 9th of June, 1928, while engaged in the same sort of work in another mine of the said company, he was again struck in the same eye by a piece of coal.

A few weeks subsequent to the date of the alleged first injury, claimant filed a claim before the commissioner for compensation. Extended investigation was made by representatives of the commissioner and much evidence was taken. Pending disposition of the first matter, claim was made for compensation on account of the alleged second injury. The claims were assigned separate numbers in the office of the commissioner, but were heard, at least in part, together. Order of refusal of compensation was entered in each case. The claim for the alleged second injury was denied September 7, 1928. The claim for the alleged first injury was denied October 30, 1929. In each instance the ground of refusal was that there had not been satisfactory proof that the alleged disability was the result of an injury received by the claimant in the course of his employment.

Section 43, chap. 71, Acts 1929 (Code 1931, 23-5-1), requires that a claimant against whom an adverse ruling is made by the commissioner shall make objection thereto within ten days after receipt of notice of such ruling. Then, if the commissioner's ruling remains adverse after further hearing as provided by the statute, the applicant may apply to this Court for appeal within ninety days subsequent to the final order.

When the second claim of Nichols was denied September 7, 1928, there was no statutory requirement that objection be made within ten days as a condition precedent to appeal, but the statute then, as now, fixed ninety days as the limit of time within which application might be made for appeal. Claimant made no effort to obtain an appeal from that order for many months subsequent to the expiration of the ninetyday period. When the order of October 30, 1929, was entered denying compensation for the alleged first injury, the above mentioned provision of the act of 1929 requiring objection to be filed within ten days after notice of an adverse ruling, was in effect. No such objection was made. And, as in the other matter, he made no effort to obtain an appeal until long after the expiration of ninety days subsequent to final order.

On the 20th of December, 1930, the claimant filed a petition before the commissioner praying that the claim for the said first alleged injury be reopened and reconsidered; that he be granted compensation for disability by reason of loss of eye-sight from said alleged injury; and further praying that petitioner's claim for said second alleged injury be considered in connection with the first claim. The prayer of that petition was denied April 10, 1931. This appeal was awarded June 29, 1931.

While it goes without saying that the provisions of the Workmen's Compensation Act should be liberally construed in order that the benign purposes of the act may be fostered, it does not follow that either the commissioner or this Court, in a spirit of excessive beneficence, may ignore plain and explicit mandates of the statute. The legislative requirements that objection shall be made within ten days after an adverse ruling as a condition precedent to appeal, and that application for appeal shall be made within ninety days subsequent to final order are so clear and plain that there is no room for interpretation. Eecent decisions of this Court emphasize the necessity of careful observation of these requirements in order to perfect appeals. Enyart v. Compensation Commissioner, 109 W. Va. 613, 155 S. E. 913; Myers v. Compensation Commissioner, 110 W. Va 425; 158 S. E. 512.

The effort of Nichols to distinguish the present case from the Enyart case is not well grounded. There, as here,...