Pirlo v. State Workmen's Compensation Com'r

• Decision Date: 07 March 1978
• Docket Number: No. 14000,14000
• Citation: 242 S.E.2d 452,161 W.Va. 296
• Parties: Francesco PIRLO v. STATE WORKMEN'S COMPENSATION COMMISSIONER.
• Court: West Virginia Supreme Court

Page 452

242 S.E.2d 452

161 W.Va. 296

Francesco PIRLO v. STATE WORKMEN'S COMPENSATION COMMISSIONER.

No. 14000.

Supreme Court of Appeals of West Virginia.

March 7, 1978.

Syllabus by the Court

1. The Workmen's Compensation Appeal Board committed an error of law and was clearly wrong in applying the law in effect at the date of the claimant's last exposure to the hazards of occupational pneumoconiosis under the law enunciated in Lester v. State Workmen's Compensation Commissioner, No. 13960, 242 S.E.2d 443 (W.Va. filed March 7, 1978).

2. While a finding of fact by the Appeal Board is not to be disturbed unless shown to be clearly wrong, such rule is not applicable where the facts are undisputed, and the record will admit of reasonable inferences favorable to the claimant. Morris v. State Compensation Commissioner, 135 W.Va. 425, 64 S.E.2d 496 (1951).

Robert F. Cohen, Jr., Fairmont, for appellant.

No appearance for appellee.

McGRAW, Justice:

This appeal involves a claim for occupational pneumoconiosis benefits which was denied by the Workmen's Compensation Appeal Board as being untimely filed on two grounds: (1) the claim was not timely filed under the statute in effect at the date of claimant's last exposure to the hazards of occupational pneumoconiosis, and (2) even if subsequent amendments to the statute in effect at the date of the injury were applicable to the claim, claimant failed to file within the time period required by such amendments.

Claimant was last exposed to the hazards of occupational pneumoconiosis on March 15, 1968, when he ceased his employment with the Greer Limestone Company where he had been employed in various capacities a total of some forty-one years. He testified that he was first advised by a doctor that he was suffering from pneumoconiosis in 1972, and he filed his claim for occupational pneumoconiosis benefits on January 25, 1975.

This Court held in Lester v. State Workmen's Compensation Commissioner, No. 13960, 242 S.E.2d 443 (W.Va. filed March 7, 1978), that amendments to W.Va. Code § 23-4-15, establishing different periods of limitation on the filing of claims for occupational pneumoconiosis, were basically procedural and as such were applicable to accrued claims which had at no point become barred by the previously existing period of limitation.

An examination of the effective dates of the amendments to W.Va.Code § 23-4-15 reveals that claimant's claim which accrued on March 15, 1968, at no time was barred by any limitation period contained in W.Va.Code § 23-4-15 before an amendment thereto became effective having the effect of giving claimant additional time within which to file. Therefore, the Workmen's Compensation Appeal Board committed an error of law and was clearly wrong in applying the law in effect at the date of the claimant's last exposure to the hazards of occupational pneumoconiosis under the law enunciated in Lester...