State ex rel. Garnes v. Hanley

• Decision Date: 15 March 1966
• Docket Number: No. 12550,12550
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Mrs. Laura A. GARNES v. Cletus B. HANLEY, Workmen's Comp. Commr., and Foster, mays, Jr.

Page 284

147 S.E.2d 284

150 W.Va. 468

STATE ex rel. Mrs. Laura A. GARNES v. Cletus B. HANLEY, Workmen's Comp. Commr., and Foster, mays, Jr.

No. 12550.

Supreme Court of Appeals of West Virginia.

Submitted March 1, 1966.

Decided March 15, 1966.

Syllabus by the Court

1. A finding by the state compensation commissioner that an order previously entered by him upon sufficient evidence to make a decision was entered through inadvertence, without further determining as a matter of fact that such order was entered as a result of fraud or mistake, is insufficient to authorize the setting aside of such order in a manner other than provided by statute.

2. Mere inadvertence, in that proper office procedures were not followed, does not amount to such a mistake as to constitute an exception to the rule that the state compensation commissioner has no power to set aside or modify a final order made by him except in the instances specified by statute.

James C. Jeter, Charleston, for relator.

Dores D. McDonnell, Sr., Charleston, for respondents.

BROWNING, Judge:

Petitioner, Laura A. Garnes, filed her original petition in this Court seeking a writ of mandamus commanding the respondent, Cletus B. Hanley, Workmen's Compensation Commissioner, to continue the payment of workmen's compensation benefits to her, as widow, and to her infant child, as a dependent of Richard Garnes, pursuant to the commissioner's order of July 22, 1959.

The petition alleges that: she is the widow of Richard Garnes who 'died while performing his employment' on June 25, 1959; she filed a claim for widow's benefits on July 15, 1959; the commissioner, by order of July 22, 1959, awarded her benefits at the rate of $65.00 per month for life and benefits to her infant daughter, Eva G. Garnes, at the rate of $17.50 until she should reach the age of eighteen years; at the time of the July 22, 1959, order the commissioner had sufficient evidence before him on which to base a ruling; no fraud or mistake occasioned such order and there has been no objection thereto; pursuant to such order two checks were delivered to petitioner, paying her up to July 31, 1959, which were accepted and used by her; and on August 6, 1959, the commissioner held that the order of July 22, 1959, was prematurely entered, set the same aside and has refused to make further payments on this award. Attached to the petition as exhibits are copies of: the order of July 22, 1959; a receipt executed by petitioner for the first check; and the two cancelled checks.

This Court issued a rule to show cause why the writ should not be issued as prayed for, returnable March 1, 1966, at which time respondent appeared and answered, admitting the material averments of the petition but denying the allegation that the commissioner had sufficient evidence before him on which to act on July 22, 1959; that no mistake was made; and that petitioner is entitled to any payments. It was stipulated that the commissioner's file be made a part of the record in this proceeding.

An examination of the commissioner's file discloses that the first report of Richard Garnes' death was received from his employer on June 27, 1959, on a form supplied by the commissioner, which stated, among other items, that Richard Garnes was 'helping to pull casing out of well' when death occurred and that the employer had no protest. The commissioner forwarded the necessary forms for petitioner to make application for benefits and advised her of the required proof. Petitioner filed the necessary form on July 15, 1959, and submitted her marriage certificate, the birth certificate of her daughter, and the death certificate which stated: 'Immediate cause (of death): Coronary Occlusion (presumably); due to : (possibly heat stroke).' Thereafter the order of July 22, 1959, was entered awarding benefits to petitioner and her infant child, which order also advised both petitioner and employer that either had thirty days within which to file objection thereto. On August 6, 1959, the commissioner entered an order setting aside his order of July 22, 1959, on the ground that 'the same was inadvertently and prematurely entered * * *' and ordered an investigation of the claim. No right to object, or advice as to the time limit within which to object, was included in this order. A letter of transmittal accompanying the order stated that: '* * * the July 22, 1959, finding was entered inadvertently before we could make an investigation. In all fatality cases, it is the custom and long standing practice of our Commission to have an investigator call upon the witnesses in order to determine all the facts regarding the death of the decedent. * * *'

Thereafter it appears that the claim was investigated and the commissioner's investigator determined that the decedent was doing strenuous work in an extremely hot sun, became ill and vomited and some twenty minutes thereafter died; the file was reviewed by the medical advisory board which concluded that death resulted from a heart attack; and the commissioner, on September 2, 1959, rejected petitioner's claim, which action was affirmed on appeal by the workmen's compensation appeal board and by this Court.

By the provisions of Article VIII, Section 3 of the Constitution of West Virginia, this Court has original jurisdiction 'in cases of habeas corpus, mandamus, and prohibition'. Mandamus will lie under that section implemented by Code, 51--1--3, as amended, to require an inferior court or other 'inferior tribunal' exercising 'quasijudicial' powers to perform legally any administrative act required of him by a petitioner in mandamus who shows a clear legal right to the relief which he seeks and a mandatory duty upon the respondent to perform that act. Since the early days of the workmen's compensation department this Court has held that it is such an inferior tribunal against which a writ of mandamus will lie and perhaps of all the so-called inferior tribunals the commissioner of that department comes closest to exercising judicial powers. However, contrary to the early years of that department, a decision of the commissioner may be attacked directly. Code, 23--5--1, et seq., as amended. The workmen's compensation commissioner has no...