Stewart v. State Compensation Director

• Decision Date: 12 October 1965
• Docket Number: No. 12465,12465
• Citation: 150 W.Va. 103,144 S.E.2d 327
• Court: West Virginia Supreme Court
• Parties: Ellis Ray STEWART v. STATE COMPENSATION DIRECTOR and Pocahontas Fuel Company.

Page 327

144 S.E.2d 327

150 W.Va. 103

Ellis Ray STEWART v. STATE COMPENSATION DIRECTOR and Pocahontas Fuel Company.

No. 12465.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 7, 1965.

Decided Oct. 12, 1965.

Syllabus by the Court

1. 'The State Compensation Commissioner has no power or jurisdiction to vacate, set aside or modify a final order made by him, except in the instances specifically provided by statute.' Syl. Pt. 1, Cottrell v. State Comp. com'r, 145 W.Va. 336, 115 S.E.2d 153.

2. Where an award of permanent partial disability is made to a claimant in a workmen's compensation proceeding on the basis of medical reports of two qualified physicians that claimant has reached his maximum improvement, a showing thereafter that such report of claimant's attending physician was qualified to a certain extent and that claimant had not been released for work at the time the permanent partial disability award was made is insufficient 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.

Crockett, Tutwiler & Crockett, Charles A. Tutwiler, Welch, for appellant.

Patrick J. Flanagan, Welch, for appellee.

BROWNING, President.

Ellis Ray Stewart, hereinafter referred to as claimant, was injured while at work on June 7, 1962. The claim was held compensable and he was paid temporary total disability benefits during the course of his treatment by Dr. R. R. Raub. On March 26, 1963, Dr. Raub, by letter, informed the director that while claimant still had pain he, Dr. Raub, had nothing specific to offer and felt '* * * that the patient should either be seem concerning further treatment or else go ahead and rate him at this time, as it could be a considerable period of time before he will be able to return to work.' The director thereupon referred claimant to Dr. J. H. Smith for examination to determine whether claimant was in need of further treatment or if he had reached his maximum improvement and, if so, the percentage of permanent disability. Dr. Smith reported that claimant did not need further treatment, had reached maximum improvement, and recommended a ten per cent disability award. Thereafter, on June 4, 1963, the director determined claimant to have sustained a ten per cent permanent partial disability as a result of his injury but informed him that inasmuch as he had been paid an amount on a temporary basis in excess of the amount due for a ten per cent award no further payments would be made. This order further informed the parties that they had thirty days from the receipt thereof within which to file objections thereto.

Claimant, under date of June 25, 1963, wrote the director advising him, with reference to the June 4 order, 'I am not at all satisfied with this * * *' and that, 'So far I have been paid compensation on a temporary total disability basis on report from my attending physician, Dr. R. R. Raub, of Bluefield, for 51 2/7ths weeks, to May 31, 1963; and so far I have not been given a return to work slip by Dr. Raub.' Subsequent to this letter of claimant, on July 3, 1963, the director entered an order setting aside his 'ruling' of June 4 on the ground that it had been erroneously entered and directed that claimant be returned to the compensation rolls on a temporary disability basis. The employer, Pocahontas Fuel Company, objected to this order and was granted a hearing. Dr. Raub notified the director that claimant had been released for work on September 23, 1963, and checks were issued paying claimant temporary benefits to that date, which checks were returned to the director by the employer pending final determination of the matter.

At the hearing, Dr. Raub testified, on cross-examination by the employer, that at the time he wrote the letter of March 26, claimant '* * * wasn't worse, and he wasn't getting any better; * * *' and that he felt that claimant had reached maximum improvement as far as he could do anything for him. On examination by claimant's counsel, Dr. Raub stated that, though he had encouraged claimant to return to work earlier, he did not give him a back to work slip until September 23, 1963. Claimant then testified that he could not have returned to work prior to September 23, 1963, when Dr. Raub first gave him a return to work slip, however, claimant further stated that the work slip of September 23 was a part time work slip and he was not returned to work by the employer until December 10, 1963, after he had obtained a regular work slip from Dr. Raub on December 9, 1963. This latter portion of claimant's testimony was objected to by the employer, which objection was sustained by the trial examiner, and the testimony was placed in the record by avowal.

On October 1, 1964, the director entered an order affirming his '* * * ruling paying the claimant total temporary disability benefits from June 1, 1963, to September 22, 1963, * * *' and further directing that claimant be paid temporary benefits from September 23, 1963, to December 9, 963, inclusive. This order was affirmed by the workmen's compensation 9, 1963, inclusive. This order was of the employer, this Court granted an appeal on May 10, 1965.

The workmen's compensation director, or, as again denominated by Chapter 162, Acts of the Legislature, Regular Session, 1965, and by which title he will be hereinafter referred to, 'commissioner', has no authority, power or 'jurisdiction' except that conferred upon him by the provisions of Chapter 23 of the Code. Unless authorized in this case by one of the exceptions which will be hereinafter mentioned, he was without authority under the holding of this Court in State ex rel. Conley v. Pennybacker, 131 W.Va. 442, 48 S.E.2d 9, to set aside the...