Sizemore v. State Workmen's Compensation Com'r, 13344

• Decision Date: 04 November 1975
• Docket Number: No. 13344,13344
• Citation: 159 W.Va. 100,219 S.E.2d 912
• Parties: Ruby Marie SIZEMORE, widow, etc. v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Sparks Coal Company.
• Court: West Virginia Supreme Court

Page 912

219 S.E.2d 912

159 W.Va. 100

Ruby Marie SIZEMORE, widow, etc. v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Sparks Coal Company.

No. 13344.

Supreme Court of Appeals of West Virginia.

Nov. 4, 1975.

Syllabus by the Court

1. A claim for death benefits, authorized by W.Va.Code 1931, 23--4--10, as amended, is separate and distinct from an injured employee's claim for disability benefits. Gibson v. State Compensation Commissioner, 127 W.Va. 97, 31 S.E.2d 555 (1944).

2. A workmen's compensation statute in effect at the date of an injured employee's death governs the deceased employee's dependents' claims for death benefits.

3. A law is not retroactive merely because part of the factual situation to which it is applied occurred prior to its enactment; only when it operates upon transactions which have been completed or upon rights which have been acquired or upon obligations which have existed prior to its passage can it be considered to be retroactive in application.

4. Syllabus points 1., 4., and 5. in Maxwell v. State Compensation Director, 150 W.Va. 123, 144 S.E.2d 493 (1965) and Syllabus points 1. and 2. in Hardin v. Workmen's Compensation Appeal Board, 118 W.Va. 198, 189 S.E. 670 (1937), representing holdings in those decisions, and the decision of Lester v. State Compensation Commissioner, 123 W.Va. 516, 16 S.E.2d 920 (1941), insofar as it holds that the date of an employee's injury, and not his resultant death, was the date from which to determine the validity of a dependent's claim and to measure the amount of death benefits provided by statute, are expressly disapproved and overruled.

5. To the extent that the holdings and supporting statements contained in the decisions of Peak v. State Compensation Commissioner, 141 W.Va. 453, 91 S.E.2d 625 (1956) and Webb v. State Compensation Commissioner, 138 W.Va. 21, 76 S.E.2d 248 (1953) were overruled and disapproved in Syllabus point 5. of Maxwell v. State Compensation Director, 150 W.Va. 123, 144 S.E.2d 493 (1965), those holdings and supporting statements are reinstated and approved.

Sterl F. Shinaberry, Hostler, Logsdon & Shinaberry, Charleston, for appellant.

HADEN, Chief Justice:

This is an appeal from a final order of the Workmen's Compensation Appeal Board which affirmed a decision by the Workmen's Compensation Commissioner denying appellant's application for widow and dependent death benefits. In denying the application, the Commissioner held that the provisions of W.Va.Code 1931, 23--4--10, as amended, in effect at the time appellant's husband, Oliver Sizemore, was injured, controlled the disposition of the application and not the statute in effect at the date of his death.

On September 25, 1961, Oliver Sizemore sustained serious injuries to his back, legs and ribs as a result of a slate fall occurring while in the employ of Sparks Coal Company as a coal miner. These injuries caused Sizemore to become a paraplegic, as a result of which he was granted a life award for total and permanent disability by order of the Commissioner dated January 25, 1963. Pursuant to this award Sizemore was paid benefits until his death occurred on May 21, 1970. The cause of his death, as listed on the death certificate, was 'chronic glomerulonephritis with uremia.' Ruby Sizemore, the widow, filed a timely application for death benefits under W.Va.Code 1931, 23--4--10, as amended, on behalf of herself and her four dependent children.

When Oliver Sizemore was injured on September 25, 1961, W.Va.Code 1931, 23--4--10, as amended, provided, in pertinent part:

'In case a personal injury other than silicosis or other occupational disease, suffered by an employee in the course of and resulting from his employment, causes death within the period of Six years and disability is continuous from date of such injury until date of death, . . . the benefits shall be in the amounts and to the persons as follows:

'(b) If the deceased employee leaves a dependent widow or invalid widower, the payment shall be Seventy-five dollars a month . . . and in addition Twenty dollars a month for each child under eighteen years of age, . . ..' (Emphasis supplied).

In 1967, the Legislature amended this statute by inserting ten (10) years in place of six (6) years and by increasing benefits. The Legislature increased benefits again in 1969. At the time of the death of Oliver Sizemore on May 21, 1970, the statute provided, Inter alia:

'In case a personal injury other than occupational pneumoconiosis or other occupational disease, suffered by an employee in the course of and resulting from his employment, causes death within the period of Ten years and disability is continuous from date of such injury until date of death, . . . the benefits shall be in the amounts and to the persons as follows:

'(b) If the deceased employee leaves a dependent widow or invalid widower, the payment shall be One hundred ten dollars a month until death or remarriage of such widow or widower, and in addition Thirty-five dollars a month for each child under eighteen years of age, . . ..' (Emphasis supplied).

The Commissioner denied appellant's application on the ground that death did not occur within six years from the date that Oliver Sizemore was injured. Appellant objected to this ruling and evidence was taken to show that the death directly related to the compensable injuries suffered in 1961. Following the hearing, the Commissioner affirmed his original decision. As the basis for its subsequent confirmation of the Commissioner's ruling, the Workmen's Compensation Appeal Board explained in its memorandum of opinion that the statute in effect at the time of injury controlled and barred the claim because the 1967 amendment to W.Va.Code 1931, 23--4--10, as amended, which extended the claims period, could not be applied retrospectively.

The broad question before this Court--whether the workmen's compensation statute in effect on the date of the employee's injury or the one in force at the time of his death governs dependents' claim for death benefits--is not one of first impression in West Virginia. The Court determined first in Hardin v. Workmen's Compensation Appeal Board, 118 W.Va. 198, 189 S.E. 670 (1937) and then in Lester v. State Compensation Commissioner, 123 W.Va. 516, 16 S.E.2d 920 (1941) that the date of injury was the proper date from which to determine the validity of a dependent's claim and to measure the amount of death benefits. Later, the Court took the opposite view in Webb v. State Compensation Commissioner, 138 W.Va. 21, 76 S.E.2d 248 (1953) and in Peak v. State Compensation Commissioner, 141 W.Va. 453, 91 S.E.2d 625 (1956), ruling that the date of death was the crucial point in time. Sometime later, however, in an attempt to settle the issue once and for all, the Court in Maxwell v. State Compensation Director, 150 W.Va. 123, 144 S.E.2d 493 (1965) reviewed several West Virginia decisions, expressly overruled the Webb and Peak decisions and returned to the position earlier expressed in Hardin that the date of injury determined which statute applied.

The basis of the Court's decision in Maxwell was the generally recognized rule that a workmen's compensation statute or amendment which affects substantive or contractual rights, and not merely procedural matters, cannot be given retroactive effect by judicial fiat and that legislative bodies must express a clear intent to make a substantive amendment retroactive before the courts may so apply the statute. The Court then cited Lester v. State Compensation Commissioner, supra, for the proposition that an employer and its employees contract with regard to compensation for injuries on the basis of the particular law in effect at the time of the injury. The Maxwell Court further determined that an increase in compensation for dependents was not simply a change in procedure and concluded that to give retroactive effect to the statute, by making the date of death the key date, would abrogate vested rights.

This rule is followed in many jurisdictions and is based upon rationales that the dependents' rights are strictly derivative of the injured employee's rights or that the employee's rights survive merely for the benefit of the dependents. Jurisdictions which have adopted the 'date of death' rule, on the other hand, view dependents' rights as accruing at the death of the employee and thus, as separate and distinct from the employee's rights. See 99 C.J.S. Workmen's Compensation § 21 c. (1958) and 58 Am.Jur. Workmen's Compensation § 301 (1948).

By the Maxwell case, West Virginia appears to have created a hybrid rule which this Court believes to be inconsistent, incorrect and fraught with potentials for misapplication and confusion. This is indicated because, although holding in Maxwell that the date of injury to the employee is determinative, this Court also has been committed to the premise that a dependent's rights and claims are unique and separate from those of an injured employee. Gibson v. State Compensation Commissioner, 127 W.Va. 97, 31 S.E.2d 555 (1944); Jones v. State Compensation Commissioner, 128 W.Va. 737, 38 S.E.2d 376 (1946); Webb v. State Compensation Commissioner, supra (1953); Peak v. State Compensation Commissioner, supra (1956); Terry v. State Compensation Commissioner, 147 W.Va. 529, 129...