Spaulding v. State Workmen's Compensation Com'r

• Decision Date: 21 May 1974
• Docket Number: No. 13417,13417
• Citation: 205 S.E.2d 130,157 W.Va. 849
• Court: West Virginia Supreme Court
• Parties: Franklin D. SPAULDING v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Eastern Associated Coal Company.

Page 130

205 S.E.2d 130

157 W.Va. 849

Franklin D. SPAULDING v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Eastern Associated Coal Company.

No. 13417.

Supreme Court of Appeals of West Virginia.

May 21, 1974.

Syllabus by the Court

1. To the extent that Baker v. State Compensation Commissioner, 143 W.Va. 536, 103 S.E.2d 391, is inconsistent with the principles expressed herein it is overruled.

2. In order for the Workmen's Compensation Appeal Board to acquire jurisdiction over an appeal from an order of the Workmen's Compensation Commissioner a written notice of appeal must be served within the statutory thirty-day period, but the failure to submit such notice on the form prescribed by the appeal board is not jurisdictional and does not divest the said board of its jurisdiction to consider the appeal.

W. O. Bivens, Jr., Michael H. Lilly, Bluefield, for appellant.

H. G. Shaffer, Jr., Madison, for appellees.

CAPLAN, Chief Justice:

The claimant, Franklin D. Spaulding, was injured on September 10, 1971, while in the employ of Eastern Associated Coal Corporation. As described on the Employer's Report of Injury the claimant received a neck injury when a 'Piece of chisel chipped off hitting injured in neck.' Although the claim which claimant subsequently filed was determined to be compensable, inasmuch as there was no lost time in excess of three days, there was no payment of compensation on a temporary total disability basis.

Upon further consideration of the claim, the commissioner, by order dated May 4 1972, granted the claimant a 1% Permanent partial disability award. As a result of a protest of this award by the claimant, a hearing was held and doctors' reports were received for consideration by the commissioner. Thereafter on October 12, 1972, the commissioner, by order, affirmed the award of May 4, 1972. That order contained the following direction by the commissioner: 'Either party has thirty days from receipt of this order within which to appeal therefrom. In the event an appeal is taken, appeal forms must be filed with the State Compensation Commissioner within thirty days from receipt of this notice.'

Being dissatisfied with the commissioner's ruling and desiring to file an appeal, the claimant's counsel forwarded a letter, dated October 24, 1972, to the appeal board wherein he said: 'Please be advised that the claimant in the above matter would like to appeal the one percent award made in this case.' Counsel who wrote the above quoted letter was retained by the claimant on October 24, 1972. Some time subsequent to that date the claimant received the appeal forms from the appeal board and submitted them to his counsel. On December 12, 1972, said forms were submitted to the appeal board.

On the basis of Baker v. State Compensation Commissioner, 143 W.Va. 536, 103 S.E.2d 391, the appeal board held that the notice of appeal, not having been submitted on the forms prescribed by it, was not filed within the statutory thirty-day period and that the board was therefore without jurisdiction to consider it. Contending that the notice of appeal filed by the claimant through his counsel was adequate to confer jurisdiction on the appeal board the claimant prosecuted this appeal.

The sole question for resolution on this appeal is whether the Workmen's Compensation Appeal Board was divested of jurisdiction in an appeal from an order of the Workmen's Compensation Commissioner for the reason that the notice of appeal was conveyed by letter rather than by the form prescribed by said board under its rule making power.

The Workmen's Compensation Appeal Board has been granted rule making power by Code, 1931, 23--5--2, as amended, which, in pertinent part, provides:

The board shall, from time to time, compile and promulgate such rules of practice and procedure as to it shall appear proper for the prompt and efficient discharge of its business and such rules shall be submitted to the supreme court of appeals for approval, and if approved by such court shall have the same force and effect as the approved rules of procedure of circuit courts.

Pursuant thereto the board promulgated Rules of Practice and Procedure which were approved by this Court on May 5, 1966. Rule 1 thereof, designated Notice of Appeal, reads: 'The notice of appeal to be filed with the Commissioner shall be in form or effect as follows, and shall be in quintuplet:'. This notice is exactly what it purports to be, a notice by the claimant of his desire to appeal from an adverse order of the commissioner. Such notice does not contain any factual or argumentative matter relative to the merits of the claim. That is the function of a brief to be subsequently filed.

The claimant, being the aggrieved party in this case, is given a statutory right to appeal. Code, 1931, 23--5--3, as amended, where pertinent, provides: 'Any employer, employee, claimant, or dependent, who shall feel aggrieved at any final action of the commissioner * * * shall have the right to appeal to the board * * *. The aggrieved party shall file a written notice of appeal with the compensation commissioner, directed to such board, within thirty days after receipt of notice of the action complained of * * *.'

As aforesaid, the claimant, through his counsel, served written notice on the appeal board that he desired to appeal the 1% Award. As above noted, the appeal board held that the appeal was not filed within the 30 day statutory period because it was not on the forms prescribed by it pursuant to its rule making power.

In the instant case it is undisputed that the notice of appeal, though not in the precise form prescribed by the appeal board, was submitted in behalf of the claimant within the statutory thirty-day period. The notice of appeal, if adequate, was therefore timely filed, the issue being the adequacy of the notice. Clearly, the appeal board has jurisdiction of this claim at the appeal stage. However, the board's ruling was based on a prior decision of this Court in Baker v. State Compensation Commissioner, Supra, wherein it was held in point 2 of the syllabus: 'The Workmen's Compensation Appeal Board is without jurisdiction to consider a purported appeal from an adverse...