Richmond v. State Compensation Com'r, 10385
Decision Date | 23 October 1951 |
Docket Number | No. 10385,10385 |
Court | West Virginia Supreme Court |
Parties | RICHMOND, v. STATE COMPENSATION COMMISSIONER et al. |
Syllabus by the Court.
1. An order entered by the State Compensation Commissioner upon a finding that an employee had suffered a compensable injury, fixing the percentage of disability, constitutes an award within the meaning of Code, 23-4-6(e), as amended, and the filing of a protest thereto does not vacate or nullify the award.
2. Where an employee who has been granted a permanent partial award of from one per cent to eighty-five per cent, both inclusive, dies from a noncompensable injury before a rehearing by the State Compensation Commissioner upon protests made to the award, dependents of the employee, within the meaning of Code, 23-4-6(e), as amended, are entitled to receive the unpaid balance of such award.
Townsend & Townsend, Hillis Townsend, and R. L. Theibert, all of Charleston, for appellant.
Mahan, White & Higgins, Fayetteville, for appellee.
This appeal from an order of the Workmen's Compensation Appeal Board involves the right of the widow of an employee to receive the unpaid balance of an award of twenty-five per cent permanent partial disability, made to the employee by the State Compensation Commissioner, on April 12, 1950. The board reversed the holding of the commissioner, by order entered February 17, 1951, holding that 'no award has been made or has become final within the scope and meaning' of Subsection (e), Section 6, Article 4, Chapter 23 of the Code, as amended.
The employee and the employer each filed a timely protest to the initial award made by the commissioner, but before a day was set for the hearing, as required by the statute, the employee died of a noncompensable injury, his death occurring June 30, 1950. On August 24, 1950, the commissioner gave notice that a hearing would be held on September 6, 1950, and on that date the hearing was held at the place fixed by the notice. At the hearing the employer and the widow-claimant introduced certain evidence relating to the degree of disability suffered by the employee by reason of the injury received in the course of employment. No further evidence was then offered as to the compensability of the injury, and no question of the compensability of the injury is now before the Court. The commissioner, on December 7, 1950, entered two orders, the first of which reads: 'This claim came on again to be considered this 7th day of December, 1950, upon the entire record, particularly upon the Commissioner's ruling of April 12, 1950, upon protest thereto, upon hearing duly held, and upon transcript of evidence; upon consideratin of all of which, it is hereby ordered and directed that the aforesaid ruling of April 12, 1950, be and the same is hereby affirmed; all of which is accordingly so ordered.' The other order reads: 'It appearing from the Commissioner's order of April 12, 1950, that the decedent had been awarded a 25% permanent partial disability award, it is hereby ordered and directed that the unpaid balance of such award be paid to the claimant widow; all of which is accordingly so ordered.'
The employer contends that no hearing was ever had upon the protest. However, a representative of the widow-claimant, on July 11, 1950, wrote the commissioner:
In reply to this inquiry the commissioner, by letter of July 18, 1950, stated: '* * * we wish to advise that the above claim will be retained on the Fayette County hearing calendar to be set for hearing to determine the proper award and the rights of the widow to receive the balance thereof.' A copy of the last mentioned letter was forwarded by the commissioner to each of the interested parties. They were thereby informed that the purpose of the hearing was 'to determine the proper award and the rights of the widow * * *'. The hearing was held in accordance with the notice and the widow-claimant, as well as the employer, was represented at the hearing.
The only question for decision relates to the contentin of the employer that the effect of the protests filed by the employer and employee to the initial order of the commissioner nullified or set aside the award, so that no award actually existed, within the meaning of subsection (e), between the date of the filing of the protests and the date of the death of the...
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