Rogers v. State Compensation Com'r, Nos. CC815

CourtSupreme Court of West Virginia
Writing for the CourtHAYMOND; LOVINS
Citation140 W.Va. 376,84 S.E.2d 218
PartiesLloyd ROGERS, Jr., v. STATE COMPENSATION COMMISSIONER et al. Wade MARTIN v. STATE COMPENSATION COMMISSIONER et al.
Decision Date09 November 1954
Docket NumberNos. CC815,CC816

Page 218

84 S.E.2d 218
140 W.Va. 376
Lloyd ROGERS, Jr.,
v.
STATE COMPENSATION COMMISSIONER et al.
Wade MARTIN
v.
STATE COMPENSATION COMMISSIONER et al.
Nos. CC815, CC816.
Supreme Court of Appeals of West Virginia.
Submitted Sept. 1, 1954.
Decided Nov. 9, 1954.

Page 219

Syllabus by the Court.

1. Under the provisions of Section 1, Article 4, Chapter 23, Code, 1931, as amended, which extend the terms 'injury' and 'personal injury' to include silicosis and require the compensation commissioner to disburse the workmen's compensation fund to the employees of such employers as are not delinquent in the payment of premiums for the last quarter in which such employees have been exposed to the hazard of silicon dioxide dust and have contracted silicosis, a valid award of compensation for silicosis in the first stage is payable from the workmen's compensation fund and is chargeable against the account of his employer when the employee, in this State, has been exposed to the hazard of silicon dioxide dust for a continuous period of not less than two years during the ten years immediately preceding the date of his last exposure to that hazard and, during that time, has not been in the employment of any other employer.

2. The provision of Section 1, Article 4, Chapter 23, Code, 1931, as amended, that the compensation commissioner may allocate to and divide any charges on account of a claim for silicosis benefits among the employers by whom the claimant was employed for as much as sixty days during the two years immediately preceding the filing of his application applies only to multiple employers and has no application to a single employer.

[140 W.Va. 377] J. Strother Crockett, Crockett & Tutwiler, Welch, for appellant.

M. E. Boiarsky, R. L. Theibert, Franklin W. Kern, Winston C. Brown, Charleston, for appellees.

HAYMOND, Judge.

These cases involve the separate claims of Lloyd Rogers, Jr., and Wade Martin, former employees of Olga Coal Company, a corporation, for silicosis benefits. On joint motion of the attorneys representing the respective parties the cases have been consolidated and they will be dealt with in one opinion.

The legal question involved is whether an award of $1,000.00 in favor of each claimant for silicosis in the first stage is payable from the Workmen's Compensation Fund and chargeable to the account of the employer, Olga Coal Company, or is payable from the surplus fund provided for by the Workmen's Compensation Law.

The material facts in each case are not disputed.

The claimant Lloyd Rogers, Jr., was employed by the Olga Coal Company in 1934, and he continued to work for that company until his employment was terminated on May 12, 1950. He filed his application for silicosis benefits with the State Compensation Commissioner on April 29, 1952, which was within two years from the termination of his employment.

[140 W.Va. 378] The claimant Wade Martin was employed by the Olga Coal Company in 1936, and he continued to work for that company until his employment was terminated on May 12, 1950. He filed his application for silicosis benefits with the State Compensation

Page 220

Commissioner on May 5, 1952, which was likewise within two years from the termination of his employment.

By order entered in each case in June, 1950, the commissioner denied the claimant compensation on the ground that he had not been exposed to the hazard of silicon dioxide dust for a continuous period of sixty days within two years preceding the date he filed his application. After objection by each claimant, the commissioner, by order entered October 9, 1952, in the Rogers case, and by order entered November 13, 1952, in the Martin case, affirmed his former order in each case.

It appears that Rogers worked only eight days for the Olga Coal Company, his employer, during the two year period immediately preceding the date of the filing of his application on April 29, 1952, and that Martin worked only six days for the Olga Coal Company, his employer, during the two year period immediately preceding the date of the filing of his application on May 5, 1952. Each claimant, however, was continuously employed by that company for more than ten years immediately preceding the date of his last exposure to the hazard of silicon dioxide dust.

Each claimant appealed to the Workmen's Compensation Appeal Board which, by order entered April 11, 1953, remanded each case to the commissioner for further consideration.

In compliance with the order of the appeal board the commissioner, by order entered May 20, 1953, set aside his former orders in each case and, by order entered May 26, 1953, found that each claimant had been exposed to the hazard of silicon dioxide dust in West Virginia during a continuous period of not less than two years during the ten years immediately preceding the date of his last exposure[140 W.Va. 379] and referred each claim to the Silicosis Medical Board. Upon objection and at the request of the employer for a nonmedical hearing the commissioner held such hearing in each case and by order entered October 9, 1953, affirmed his order of May 26, 1953. On October 27, 1953, the Silicosis Medical Board reported to the commissioner that the claimant in each case had silicosis in the first stage. The employer objected to the findings of the Silicosis Medical Board and, by order entered January 14, 1954, the commissioner approved the finding of the Silicosis Medical Board and awarded the claimant in each case compensation for silicosis in the first stage and charged each award to the account of the employer.

On February 9, 1954, the employer appealed each case to the Workmen's Compensation Appeal Board. By order entered April 15, 1954, the appeal board affirmed the order of the commissioner insofar as it awarded compensation to each claimant for silicosis in the first stage but reversed the order of the commissioner to the extent that it held the award to each claimant chargeable to the account of his employer, Olga Coal Company, and certified to this Court the ruling of the appeal board as to the chargeability of the award in each case against the account of the employer.

The certificate of the appeal board, which was docketed in this Court on May 3, 1954, under Section 4, Article 5, Chapter 131, Acts of the Legislature, 1945, Regular Session, (Section 4, Article 5, Chapter 23, Michie's Annotated Code, 1949), presents this question: 'Does the language used in Section 1, Article 4, Chapter 23, Code of West Virginia mean that a claimant must have been employed for at least as much as sixty days during the period of two years immediately preceding the filing of an application for silicosis benefits before such employer's account is chargeable with an award based upon such application, even though there is only one employer of claimant during said entire two year period?' The cases were submitted for decision on September 1, 1954, upon the written briefs and the oral arguments in behalf of the respective parties.

[140 W.Va. 380] The validity of the award in favor of each claimant is not challenged in this Court, and the sole question for decision is that embraced in the certificate of the appeal board.

Page 221

The workmen's compensation system in this State is the creature of legislation and in enacting the statute creating the system the Legislature exercised the police power of the State. Blevins v. State Compensation Commissioner, 127 W.Va. 481, 33 S.E.2d 408. The underlying purpose of the Workmen's Compensation Law is to provide a system by which injuries due to industry may be liquidated and compensation provided for such injuries. See Weatherford v. Arter, 135 W.Va. 391, 63 S.E.2d 572; Mains v. J. E. Harris Company, 119 W.Va. 730, 197 S.E. 10, 117 A.L.R. 511. As that system is created solely by statute it is necessary, in resolving the question presented by the certificate, to consider and apply the pertinent statutory...

To continue reading

Request your trial
5 practice notes
  • State ex rel. Boan v. Richardson, No. 23667
    • United States
    • Supreme Court of West Virginia
    • December 13, 1996
    ...workers' compensation as being grounded in the police power of the State and not in contract. Rogers v. State Compensation Commissioner, 140 W.Va. 376, 84 S.E.2d 218 (1954); Blevins v. State Compensation Commissioner, 127 W.Va. 481, 33 S.E.2d 408 An offset statute also withstood constitutio......
  • Bailey v. SWCC, Nos. 15479
    • United States
    • Supreme Court of West Virginia
    • June 24, 1982
    ...of state police power and that "participation" was, in fact, compulsory. Lester, supra; Rogers v. State Compensation Commissioner, 140 W.Va. 376, 84 S.E.2d 218 (1954); Blevins v. State Compensation Commissioner, 127 W.Va. 481, 33 S.E.2d 408 (1945). The seeds had been sown, however, for an e......
  • Turner v. State Compensation Com'r, No. 12132
    • United States
    • Supreme Court of West Virginia
    • January 30, 1962
    ...for in this chapter.' See upon this question Rogers v. State Compensation Commissioner (Martin v. State Compensation Commissioner), 140 W.Va. 376, 84 S.E.2d 218, particularly this quotation from the opinion in those consolidated cases: 'It is obvious that a claim for compensation for silico......
  • Buchanan v. Workers' Compensation Com'r, No. 16096
    • United States
    • Supreme Court of West Virginia
    • July 12, 1984
    ...Point 1, Maynard v. State Workmen's Compensation Commissioner, W.Va., 239 S.E.2d 504 (1977); Rogers v. State Compensation Commissioner, 140 W.Va. 376, 84 S.E.2d 218 (1954); Richardson v. State Compensation Commissioner, 137 W.Va. 819, 74 S.E.2d 258 5 The relevant portion of W.Va.Code, 23-4-......
  • Request a trial to view additional results
5 cases
  • State ex rel. Boan v. Richardson, No. 23667
    • United States
    • Supreme Court of West Virginia
    • December 13, 1996
    ...workers' compensation as being grounded in the police power of the State and not in contract. Rogers v. State Compensation Commissioner, 140 W.Va. 376, 84 S.E.2d 218 (1954); Blevins v. State Compensation Commissioner, 127 W.Va. 481, 33 S.E.2d 408 An offset statute also withstood constitutio......
  • Bailey v. SWCC, Nos. 15479
    • United States
    • Supreme Court of West Virginia
    • June 24, 1982
    ...of state police power and that "participation" was, in fact, compulsory. Lester, supra; Rogers v. State Compensation Commissioner, 140 W.Va. 376, 84 S.E.2d 218 (1954); Blevins v. State Compensation Commissioner, 127 W.Va. 481, 33 S.E.2d 408 (1945). The seeds had been sown, however, for an e......
  • Turner v. State Compensation Com'r, No. 12132
    • United States
    • Supreme Court of West Virginia
    • January 30, 1962
    ...for in this chapter.' See upon this question Rogers v. State Compensation Commissioner (Martin v. State Compensation Commissioner), 140 W.Va. 376, 84 S.E.2d 218, particularly this quotation from the opinion in those consolidated cases: 'It is obvious that a claim for compensation for silico......
  • Buchanan v. Workers' Compensation Com'r, No. 16096
    • United States
    • Supreme Court of West Virginia
    • July 12, 1984
    ...Point 1, Maynard v. State Workmen's Compensation Commissioner, W.Va., 239 S.E.2d 504 (1977); Rogers v. State Compensation Commissioner, 140 W.Va. 376, 84 S.E.2d 218 (1954); Richardson v. State Compensation Commissioner, 137 W.Va. 819, 74 S.E.2d 258 5 The relevant portion of W.Va.Code, 23-4-......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT