State ex rel. Conley v. Pennybacker
| Decision Date | 18 May 1948 |
| Docket Number | 10052. |
| Citation | 48 S.E.2d 9,131 W.Va. 442 |
| Parties | STATE ex rel. CONLEY v. PENNYBACKER. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. When a claimant for compensation from the Workmen's Compensation Fund has been paid temporary total disability benefits and has been subsequently awarded compensation on a permanent partial basis, his claim can not be returned to a temporary total basis.
2. The State Compensation Commissioner, in considering the claim for additional compensation on a permanent basis of an injured employee who has been awarded and paid the maximum temporary total benefits to which he is entitled, and which claim has been reopened for hearing under the provisions of Section 1-a, Article 5, Chapter 137, Acts of the Legislature 1939, Regular Session, has discretion to postpone action in granting or refusing an award of such compensation for such reasonable period of time, after the reopening of the claim as may be necessary to enable him to determine that the result of the injury has reached the stage at which a fair and just award may be made; but he may not unduly or indefinitely delay action in granting or refusing such award.
3. Mandamus does not lie to control an administrative officer in the performance of a discretionary act, in the absence of caprice, passion, partiality, fraud, arbitrary conduct, some ulterior motive, or misapprehension of law upon the part of such officer.
W. Hayes Pettry, of Charleston, for relator.
John F. Bronson, of Charleston, for respondent.
In this original proceeding in mandamus, the relator Joseph Conley an injured employee subject to the Workmen's Compensation Law of this State, seeks a writ from this Court to require the defendant, Honorable E. B. Pennybacker, State Compensation Commissioner, immediately and without delay, to award him additional compensation upon a permanent partial basis or to return him to a temporary total disability basis of compensation. The case was submitted for decision upon the petition of the relator, the exhibits filed with the petition, the answer of the defendant to which there is no replication, and the briefs of the attorneys for the respective parties.
The relator, while employed by Libby Owens Ford Glass Company, of Charleston, was injured in the course of and resulting from his employment on June 3, 1944, by the fall of broken glass which inflicted multiple lacerations on his right forearm. He was awarded and paid compensation on a temporary total disability basis for a period of fifty two weeks following his injury, which under the statute, Code, 1931, 23-4-6(b) as it then existed, was the maximum period for which he could receive a temporary total disability award for an injury of the kind sustained by him. He was later given an award of permanent partial disability of twenty four per cent covering a period of ninety six weeks. From this award which expired in December, 1946, when the last payment was made, temporary total disability benefits of fifty two weeks were deducted as required by statute, Code, 1931, 23-4-6(i).
On September 16, 1947, at the instance of the relator, the State Compensation Commissioner reopened the claim upon the basis of the showing made by him under the provisions of Section 1-a, Article 5, Chapter 137, Acts of the Legislature 1939, Regular Session. After the claim was reopened the relator, who is the claimant, was examined and additional treatment was recommended, a part of which consisted of surgery. The relator refused to undergo the surgical treatment and no further award has been made by the commissioner. In response to the written request of the relator, by his attorney, on March 2, 1948, that an immediate award be made, the State Compensation Commissioner, by the Head of the Medical Division, in a letter of that date, refused the request on the ground that the relator has not reached his maximum degree of recovery and for that reason is ineligible for further rating for permanent disability.
The answer of the defendant alleges that the relator has not reached his maximum degree of permanent improvement. The relator does not deny or challenge this allegation by any replication to the answer. The answer also states that the relator has been paid the maximum amount allowed by law for temporary disability. For these reasons the defendant insists that he should not be required by this Court to make any award in favor of the relator at this time.
The relator does not establish, by allegations or proof, that he has in fact reached his maximum degree of permanent improvement and he admits that he has been paid for the full period of fifty two weeks for which he was awarded temporary total disability benefits. He contends, however, that he is entitled, at this time, to additional compensation on a permanent partial disability basis or to additional temporary total disability benefits. In support of the contention that he is entitled to additional temporary total disability benefits, the relator invokes the statute, Code, 1931, 23-4-6(b), as amended by Paragraph b, Section 6, Article 4, of Chapter 131, Acts of the Legislature of 1945, Regular Session, which provides, with respect to temporary disability resulting from designated types of injuries, that the period of fifty two weeks and the period of seventy eight weeks may be temporarily extended by the commissioner for such further period as may appear to be necessary, if at the end of such periods the temporary disability continues but does not warrant a finding of permanent disability, but that the combined periods shall in no case exceed one hundred and fifty six weeks. The defendant insists that, as the relator was injured prior to the passage of the amendment, it has no application to his injury of June 3, 1944, and that the relator, having been awarded and paid the maximum temporary total disability benefits to which he is entitled by law and having subsequently been awarded and paid compensation on a permanent partial disability basis, can not be returned to a temporary disability status.
With respect to the amendment of 1945, there is no indication that the Legislature intended it to be retroactive. The presumption is that a statute is intended to operate prospectively and not retrospectively in the absence of clear, strong and imperative words to show the legislative intent to give it retroactive force and effect. Lester v State Compensation Commissioner, 123 W.Va. 516, 16 S.E.2d 920. Words of that character are missing from the amendatory act of 1945. Under the compensation laws of this State the relation between employer and employee with respect to compensation is contractual, Hardin v. Appeal Board, 118 W.Va. 198, 189 S.E. 670; and legislation may not be made retroactive if to do so would impair the obligation of contracts or disturb vested rights. Lester v. State Compensation Commissioner, 123 W.Va. 516, 16 S.E.2d 920; 17 R.C.L. 683; Cherry v. State Compensation Commissioner, 115 W.Va. 180, 174 S.E. 889; Carbon Fuel Company v. State Compensation Commissioner, 111 W.Va. 639, 163 S.E. 62; Jenkins v. Heaberlin, Compensation Commissioner, 107 W.Va. 287, 148 S.E. 117. The amendment of 1945 operates prospectively, not retrospectively, and it applies only to injuries sustained after its enactment. It has...
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