Reed v. Comp. Comm'r.

• Decision Date: 17 February 1942
• Docket Number: (No. 9275)
• Citation: 124 W.Va. 37
• Court: West Virginia Supreme Court
• Parties: Tom Reed v. Compensation Commissioner et al.

124 W.Va. 37

Tom Reed

v.Compensation Commissioner et al.

(No. 9275)

Supreme Court of Appeals of West Virginia.

Submitted January 20, 1942.

Decided February 17, 1942.

1. Workmen's Compensation

On appeal from the action of the Workmen's Compensation Commissioner refusing to reopen a case formerly determined by him, the Appeal Board has power only to determine whether the case should be reopened, and cannot order the Commissioner to give the claimant a rating of disability then fixed by the Board.

2. Workmen's Compensation

After an order of the Workmen's Compensation Commissioner determining a claimant's disability has become final, the case cannot be reopened except by the showing of "a progression or aggravation in the 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 greater benefits than he has already received, * * *." Acts of Legislature 1939, Chapter 137, Article 5, Section 1-b.

Appeal from Workmen's Compensation Appeal Board.

Proceeding under the Workmen's Compensation Act by Tom Reed, claimant, opposed by the Red Jacket Coal Corporation, employer. From an order of the Workmen's Compensation Appeal Board, setting aside an order of the Compensation Commissioner, refusing to reopen the case for any purpose, and directing the commissioner to allow claimant compensation for life as for total permanent disability, the employer appeals.

Reversed and remanded.

Goodykoontz, Slaven & Kopp, for appellants. J. Brooks Lawson, for appellee.

Rose, Judge:

This appeal was awarded on the petition of Red Jacket Coal Corporation from an order of the Workmen's Compensation Appeal Board, by which the Workmen's Compensation Commissioner was directed to allow Tom Reed, a former employee of the appellant, compensation for life as for total permanent disability.

The claimant, Tom Reed, on August 19, 1936, while employed by the appellant in its mine in Mingo County, was injured by a slate fall. The injury was reported by the employer as a fracture of the left femur and a crushing of the right foot, in addition to which Reed, in his application for compensation, claimed the fracture of three ribs.

Reed was immediately hospitalized at Williamson and awarded temporary total disability compensation, which continued for 78 weeks. During this time, three efforts were made to reduce the fracture of the femur. The first treatment involved the application of weights to the foot, and a cast, but no union resulted. The second effort was a surgical operation for holding the broken ends of the bone together. This, also was unsuccessful. A second operative attempt at reducing the fracture resulted in a fragile union of the broken bones; a substantial outward angulation of the left femur; a shortening of the left leg about 3% inches; internal rotation of left foot and knee, with a marked loss of action in the knee and ankle joints.

At the expiration of the 78 weeks period, upon examinations and reports of Drs. Conley and Easley of Williamson, an award on the basis of 50% total permanent disability was made under date of March 23, 1939. Of this rating, 45% was based on the injury to the left leg, and 5% on the injury to the right foot. This award was for 200 weeks and totalled $3200.00, from which was deducted $1248.000 previously paid under the temporary allowance. The last installment of said award became due June 19, 1940. No objection or protest was made by the claimant to this award, and the installments were paid and accepted in regular course. Shortly after the last payment of this first award, the claimant, by counsel requested a re-examination, making claim for an additional 10% of disability. A report made by the medical examiners of the commissioner led him, on October 19, 1940, to make an additional award of 5%, which was to date as from the expiration of the last payment of the first award. The final payment of this last award became due November 6, 1940. No objection, exception, protest or appeal was made to this second award, but immediately after the last payment thereunder, the claimant and his attorney requested a further examination and hearing. At this time the contention was advanced for the first time that Reed was, and had been, from the date of his injury, totally and permanently disabled. On December 9, 1940, the commissioner declined to reopen the case, or grant the hearing asked for, and this disposition of the case was, on appeal, affirmed by the Workmen's Compensation Appeal Board on the 22nd day of February, 1941.

There then ensued a number of letters from the claimant and his attorney asking for still another hearing, the applications being supported by letters from two doctors and certain photographs purporting to show the claimant's then condition. Under date of April 16, 1941, the commissioner again held that the showing made by the claimant was not sufficient to justify a reopening of the case for any purpose, whereupon a second appeal was taken to the Workmen's Compensation Appeal Board, resulting in the order now under review.

The pertinent part of the order then made is as follows:

"Upon consideration of all which this Board finds, as a matter of fact, that the claimant was totally and permanently disabled from performing any work at the time of his injuries and has continued to be so. It is therefore adjudged, ordered and decreed that the order of the Compensation Commissioner as of the 16th day of April, 1941, be annulled, set aside and held for naught. That it is the order of the majority of this Board, that this case be remanded to the Commissioner with direction to pay the claimant for a 100% total permanent disability for the rest of his natural life.

Mr. Posten respectfully dissents from the majority opinion, for the reason that the claimant has not complied with the provisions of the statute, in such cases made and provided."

It must at once appear that so much of this order as summarily directed the commissioner to pay the claimant for 100% total permanent disability cannot be sustained. There was nothing before the board except the single question whether the case should be reopened.

As to the merits of the claimant's request for a reopening of his case, it will be noted that he was apparently completely satisfied with the award of March 23, 1939. He made no objection thereto and, of course, took no appeal. This adjudication, therefore, fixed definitely for the purposes of this...