Richardson v. State Compensation Com'r

• Decision Date: 10 February 1953
• Docket Number: No. 10520,10520
• Citation: 137 W.Va. 819,74 S.E.2d 258
• Parties: RICHARDSON, v. STATE COMPENSATION COM'R et al.
• Court: West Virginia Supreme Court

Page 258

74 S.E.2d 258

137 W.Va. 819

RICHARDSON, v. STATE COMPENSATION COM'R et al.

No. 10520.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 14, 1953.

Decided Feb. 10, 1953.

Syllabus by the Court.

1. The last paragraph of Section 15, Article 4, Chapter 136, Acts of the Legislature, 1949, Regular Session, is the controlling statute with reference to the time of filing of an application for compensation benefits on account of the disease silicosis.

2. Sections 1 and 15-b, Article 4, Chapter 136, Acts of the Legislature, 1949, Regular Session, relate to the allocation of charges against the accounts of multiple employers. Though such sections deal with related subjects, they do not control as to the rights of a claimant to compensation benefits on account of silicosis, if, in the State of West Virginia he "has been exposed to the hazard of silicon dioxide dust over a continuous period of not less than 2 years during the 10 years immediately preceding the date of his last exposure to such hazard." Section 1, id.

3. The word "continuous" and the phrase "continuous period", as used in Sections 1, 15, 15-b, Chapter 136, Acts of the Legislature, 1949, Regular Session, properly construed, mean with reasonable continuity. The conditions surrounding an employee's exposure to silicon dioxide dust, which may be interrupted on account of holidays, periods of temporary illness and work stoppages, occurring from reasons beyond employee's control, should be considered.

Townsend & Townsend, R.L. Theibert, Charleston, for appellant.

Dayton, Campbell & Love, Charles M. Love, Charleston, for appellees.

LOVINS, Judge.

Percy Richardson, claimant, filed his application for compensation benefits on the grounds that he was suffering from silicosis. The State Compensation Commissioner, hereinafter designated as commissioner, after investigation, made certain nonmedical findings, hereinafter detailed, and referred the claim to the Silicosis Medical Board for review, to which action the employer protested.

A hearing was held on such protest, after which the commissioner affirmed his former order. The Silicosis Medical Board, under date of January 18, 1952, found that claimant was suffering from silicosis and that his capacity for work had been impaired by that disease, thus classifying claimant's malady as silicosis of the second stage. Following the finding of the Silicosis Medical Board, the commissioner affirmed the finding of the Medical Board and awarded claimant compensation in the sum of $2,000 to be paid in one payment.

The employer appealed to the Workmen's Compensation Appeal Board, who reversed the commissioner's order and denied the claimant compensation benefits, from which order claimant appealed to this court.

It is undisputed that the claimant has silicosis in the second stage. This appeal turns upon questions concerning the time the claimant was employed and whether his application for benefits was timely filed.

The first order made by the commissioner finds that claimant had been employed in various capacities by the United States Steel Company and its predecessors, "in account", since July 10, 1940, and that he continues to work in that employment, that he worked in the capacity of motorman, brakeman and driver until May 11, 1950, since which time he has worked on the outside; that he previously worked in mines in Alabama and Kentucky, commencing in the year 1918, as a trapper, driller, coal loader and brakeman. From such factual data, the commissioner concluded that the claimant had been exposed to the hazard of silicon dioxide dust for a continuous period of not less than 60 days, while in the employment of the United States Steel Company, and within 2 years prior to the filing of his application on July 27, 1951; that he had also been exposed to such hazard for a continuous period of not less than 2 years during the 10 years immediately preceding the filing of his application.

At the hearing it was shown by stipulation, among other facts, that the claimant worked for the United States Coal and Coke Company at Gary (possibly Gary, West Virginia) from July 8, 1940, to November 11, 1940; that he was unemployed from November 11, 1940 to 1942, but was employed on January 19, 1942, at Number 6 Mine, location not disclosed, that he worked for that company until May 31, 1943. Claimant was unemployed until June 10, 1943, when he was reemployed at the same mine as a brakeman and continued to work in that capacity through September 8, 1948. Claimant was discharged on the last mentioned date but was reemployed at the same mine on September 23, 1948, as a track helper. On March 9, 1949, he commenced working as a motorman and continued to work until May 9, 1949, when his employment was terminated. He was reemployed on May 24, 1949, as an inside laborer and worked until March 18, 1950. He was evidently idle from March 18, 1950, until May 11, 1950, because of illness. He returned to the employment at Number 9 Mine May 11, 1950; has since that date worked outside the mine.

The testimony shows that claimant worked for the United States Steel Company, or the United States Coal and Coke Company, its predecessors, at Number 9 Mine, commencing on June 3, 1949, and ending July 27, same year, 19 days. It is also established by the testimony, that commencing in August, 1949, up to March 18, 1950, claimant worked 55 days for the United States Steel Company or its predecessors.

Noting above that the claimant's application for compensation was filed on July 27, 1951, the claimant raises two questions: When must a claimant file an application for compensation benefits on the ground he is suffering from the disease silicosis, and (2) what constitutes an exposure of "a continuous period of 60 days"?

The employer, in effect, contends that the two year period referred to in the statutes, hereinafter discussed, means within two years immediately preceding the filing of the claim and that continuous exposure means substantially continuous.

There are three pertinent statutory provisions to be considered in resolving the conflicting contentions here made, reading as follows: "*** Provided, however, That compensation shall not be payable for the disease of silicosis, or death resulting therefrom, unless in the state of West Virginia the employee has been exposed to the hazard of silicon dioxide dust over a continuous period of not less than two years during the ten years immediately preceding the date of his last exposure to such hazards. An application for benefits on account of silicosis shall set forth the name of the employer or employers and the time worked for each, and the commissioner may allocate to and divide any charges on account of such claim among the employers by whom the claimant was employed for as much as sixty days during the period of two years immediately preceding the filing of the application. The allocation shall be based upon the time and degree of exposure with each employer. ***" Chapter 136, Article 4, Section 1, Acts of the Legislature, 1949, Regular Session.

"*** To entitle any employee to compensation for silicosis under the provisions hereof, the application therefor must be made on the form or forms prescribed by the commissioner and filed in the office of the commissioner within two years from and after the last day of the last continuous period of sixty days or more during which the employee was exposed to the hazard of silicon dioxide dust ***." Chapter 136, Article 4, Section 15, Acts of the Legislature, 1949, Regular Session.

"If a claim for silicosis benefits be filed by an employee, the commissioner shall determine whether the claimant was exposed to the hazard of silicon dioxide dust for a continuous period of not less than sixty days while in the employ of the employer within two years prior to the filing of his claim, and whether in the state of West Virginia the claimant was exposed to such hazard over a continuous period of not less than two years during the ten years immediately preceding the date of his last exposure thereto. ***" Chapter 136, Article 4, Section 15-b, Acts of the Legislature, 1949, Regular Session.

In the discussion following, the foregoing statutes will be referred to by section number, without further designation.

A cursory examination of the statutory provisions quoted may lead to a conclusion that there is an...