Tanner v. Workers' Compensation Com'r, 16938

• Citation: 176 W.Va. 427,345 S.E.2d 29
• Decision Date: 05 June 1986
• Docket Number: No. 16938,16938
• Parties: Ada May TANNER v. WORKERS' COMPENSATION COMMISSIONER
• Court: Supreme Court of West Virginia

Page 29

345 S.E.2d 29

176 W.Va. 427

Ada May TANNER v. WORKERS' COMPENSATION COMMISSIONER

No. 16938.

Supreme Court of Appeals of West Virginia.

June 5, 1986.

Syllabus by the Court

1. " 'Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.' Syllabus Point 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968)." Syllabus Point 2, State ex rel. Underwood v. Silverstein, 167 W.Va. 121, 278 S.E.2d 886 (1981).

2. "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)." Syllabus Point 1, Sizemore v. State Workmen's Compensation Comm'r, 159 W.Va. 100, 219 S.E.2d 912 (1975).

3. "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." Syllabus Point 2, Sizemore v. State Workmen's Compensation Comm'r, 159 W.Va. 100, 219 S.E.2d 912 (1975).

4. "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." Syllabus Point 3, Sizemore v. State Workmen's Compensation Comm'r, 159 W.Va. 100, 219 S.E.2d 912 (1975).

5. Under the provisions of W.Va.Code, 23-2-5 (1974), no employee or dependent of a deceased employee whose employer is required to subscribe to the Workers' Compensation Fund can be denied benefits because such employer failed to subscribe to the Fund.

Thomas P. Maroney, Charleston, for appellant.

Workers' Compensation Comm., Charleston, for appellee.

MILLER, Chief Justice:

This is an appeal by a claimant widow from a final decision and order of the Workers' Compensation Appeal Board affirming a ruling by the Workers' Compensation Commissioner rejecting her application for dependents' benefits. The Appeal Board's denial was premised upon a legal determination that the claimant's decedent was not a covered employee because his employer had never been a subscriber to the Workers' Compensation Fund. We find that the Appeal Board committed error.

The claimant widow filed her application for dependents' benefits on May 22, 1980, alleging that her late husband who died on March 18, 1980, had been exposed to the hazards of occupational pneumoconiosis (hereinafter O.P.) while employed at a pottery located in Mannington, West Virginia. It appears that during the years the claimant's decedent had been employed, the pottery operated under several different names, some of which were Bowers Pottery, Lawndale Industries, and Mannington Pottery.

Initially, the claim was rejected by the Commissioner on the theory that there was no showing that O.P. had caused the death. The claimant widow protested this ruling and introduced medical evidence to show a causal connection between the death and her husband's O.P. condition. The decedent's employer was not present or represented at any stage of this litigation, including the evidentiary protest hearings.

At the conclusion of the protest hearings, counsel for the claimant was advised by the Commissioner in a letter dated July 20, 1983, that the records of the Workers' Compensation Fund showed that "Londale Industries" had never been a subscriber to the Fund. Consequently, the Commissioner concluded that the claim should be rejected because the decedent was not a covered employee within the meaning of the workers' compensation law. This was confirmed by the Commissioner's order of October 14, 1983, rejecting the claim, which order was subsequently affirmed by the Appeal Board.

On the date of the decedent's death in 1980, W.Va.Code, 23-2-5 (1974), provided, as pertinent here:

"No employee of an employer required by this chapter to subscribe and pay premiums to the workmen's compensation fund as herein prescribed shall be denied benefits provided by this chapter because of the failure of his employer to subscribe, or pay premiums into, the workmen's compensation fund as herein provided, or because of the employer's failure to make the quarterly payroll reports required by the commissioner." ¹

This section of the law was revised in 1984, but the provision concerning the right of a covered employee to receive workers' compensation benefits despite an employer's failure to subscribe to the Fund, apart from a more economical use of the language, was left substantively unchanged. ²

The clear and unambiguous language of this statutory provision reflects a legislative intent to ensure that employees and their dependents shall not be deprived of the benefits of the workers' compensation law because an employer subject to the law has, for whatever reason, not subscribed to the Fund or otherwise complied with its provisions.

We have consistently held that where a statute is unambiguous, we accept its plain meaning as illustrated by Syllabus Point 2 of State ex rel. Underwood v. Silverstein, 167 W.Va. 121, 278 S.E.2d 886 (1981):

" 'Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.' Syllabus Point 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968)."

The Commissioner's position is that W.Va.Code, 23-2-5 (1974), is not applicable to this claim because the claimant's last exposure was prior to 1974, the year W.Va.Code, 23-2-5, was amended to provide for paying benefits when an employer was not in the Fund. ³ The Commissioner also asserts that the application of the law in effect in 1980 on the date of the decedent's death would constitute ex post facto legislation and would work a hardship on the Workers' Compensation Fund.

The Commissioner's argument, however, ignores the basic legal principle that a claim for dependents' benefits under W.Va.Code, 23-4-10, is separate and distinct from an injured employee's claim for disability benefits. Consequently, the workers' compensation statute in effect at the time of the injured employee's death, not the statute in effect when the employee was injured, is the statute that governs dependents' claims for benefits. This was settled in Sizemore v. State Workmen's Compensation Comm'r, 159 W.Va. 100, 219 S.E.2d 912 (1975), along with the ex post facto or retroactivity argument, as illustrated in its Syllabus Points 1, 2, and 3:

"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...