Raven Red Ash Coal Corp. v. Absher

• Decision Date: 19 September 1929
• Citation: 149 S.E. 541
• Parties: RAVEN RED ASH COAL CORPORATION et al. v. ABSHER.
• Court: Virginia Supreme Court

149 S.E. 541

RAVEN RED ASH COAL CORPORATION et al.

v.ABSHER.

Supreme Court of Appeals of Virginia.

Sept 19, 1929.

Appeal from Industrial Commission.

Compensation proceeding by Henry Absher, claimant, opposed by the Raven Red Ash Coal Corporation, employer, and the Maryland Casualty Company, insurance carrier. From; a judgment of the Industrial Commission, awarding compensation, the employer and Insurance carrier appeal. Reversed and rendered.

Sinnott, May & Leaman, of Richmond, for appellant.

HOLT, J. In this case the Raven Red Ash Coal Corporation was the employer, the Maryland Casualty Company was the insurance carrier, and Henry Absher, an employee of the coal company, was claimant, before the Industrial Commission.

On March 18, 1922, this claimant, while in the course of employment, was injured and for the time being totally disabled. Thereupon he entered into a compensation agreement with the employer, subsequently approved by the commission, under which he was to receive from the coal company, during the period of total disability, $10 a week.

In accordance therewith, he was so paid from March 18, 1922, up to and including February 6, 1923, or for a period of 46⁴/₇ weeks. On February 7, 1923, he appeared to have recovered and resumed work, and this was the situation up to and including January 23, 1925, or for a period of 102³/₇ weeks. On January 24, 1925, there was a recurrence of total disability, and compensation theretofore agreed upon was paid up to and including April 5, 1925, or for 10²/₇ weeks. On April 6, 1925, he resumed work, and continued work up to and including May 11, 1925, or for a period of 5¹/₇ weeks. On May 12, 1925, he again became totally disabled, and so remained until December 4, 1926, or for a period of 81⁵/₇ weeks. During this time compensation of $10 a week was duly paid. On December 5, 1926, under a supplemental agreement approved by the commission, he again went to work, and was then paid $7.50 a week for partial disability. Compensation at this rate was regularly paid up to December 7, 1927, when it was discontinued, because the 300 weeks provided for in section 31 of the Workmen's Compensation Law (Acts 1918, c. 400, § 31, as amended by Acts 1920, c. 176, and re-enacted by Acts 1926, c. 7) had elapsed, and on December 13, 1927, this claimant executed a final receipt. Up to that time there had been paid to him $1,789.65.

He was still partially disabled, and applied to the commission for additional relief. From the date of his injuries to that on which payments ceased there were 107⁴/₇ weeks in the aggregate, during which he had been paid nothing, as is shown by the statement which we have made; the reason therefor being that he, during those periods, appeared to have recovered, although this in fact was not true.

If he was entitled to be paid for 300 weeks, the award of the commission is correct. If the right to recover expired by limitation 300 weeks from the date of the injury, it was erroneous. Therefore it becomes necessary to determine what is a proper construction of said section 31 of the Workmen's Compensation Law, which provides:

"Except as otherwise provided in the next section hereafter, where the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid, as hereinafter provided, to the injured employee during such incapacity a weekly compensation equal to fifty per centum of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than twelve dollars a week, and in no case shall the period covered by such compensation be greater than three hundred weeks from the date of the injury. In case the partial incapacity begins after a period of total incapacity, the latter period shall be deducted from the maximum period herein allowed for partial incapacity."

This statute is highly remedial and should be liberally construed, and the judgment of our painstaking and able commission is entitled to the utmost consideration; but the employer and the insurance carrier are entitled to fair consideration also.

Of course, it is competent for the Legislature to say that in such circumstances compensation should be paid for 300 weeks, but that was not done. The statute states that "in no case shall the period covered by such compensation be greater than three hundred weeks from the date of the injury." If this be construed to give to the employee unconditional compensation for 300 weeks, then the phrase "from the date of the injury" is meaningless. This violates a...