Taylor v. State Compensation Com'r, 10711

• Decision Date: 08 March 1955
• Docket Number: No. 10711,10711
• Court: West Virginia Supreme Court
• Parties: J. S. TAYLOR, v. STATE COMPENSATION COMMISSIONER and Stone Mountain Coal Company.

Page 114

86 S.E.2d 114

140 W.Va. 572

J. S. TAYLOR, v. STATE COMPENSATION COMMISSIONER and Stone Mountain Coal Company.

No. 10711.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 12, 1955.

Decided March 8, 1955.

Syllabus by the Court.

1. The provision of Section 16, Article 4, Chapter 137, Acts of the Legislature, 1939, Regular Session, prohibiting any further award in cases arising on account of injuries occurring prior to March 7, 1929, unless written application be filed with the State Compensation Commissioner on or before September 15, 1939, operated as an absolute bar to any further award on account of injuries arising prior to March 7, 1929, and deprived the State Compensation Commissioner of power and jurisdiction to consider or make any such award upon any application filed in such cases after September 15, 1939.

2. When parts of a prior statute are omitted from a later statute which revises the prior statute the parts omitted are not to be revived by construction but are to be considered as annulled.

3. 'A subsequent statute, which revises the whole subject matter of a former statute, and which is evidently intended by the Legislature as a substitute for such former statute, although it contains no express words to that effect, operates to repeal the former statute.' Point 1, syllabus, State v. Hinkle, 129 W.Va. 393 .

4. The presumption is that a statute is intended to operate prospectively, and not retrospectively, unless it appears, by clear, strong and imperative words or by necessary implication, that the Legislature intended to give the statute retroactive force and effect.

Franklin W. Kern, R. Jack Canterbury, Charleston, for appellant.

Lynn C. Johnson, Strother & Christie, Welch, for appellee.

HAYMOND, Judge.

The question presented for decision upon this review of an order of the Workmen's Compensation Appeal Board entered October 15, 1954, is whether, under the present statute, Section 16, Article 4, Chapter 136, Acts of the Legislature, 1949, Regular Session, a claim for additional compensation of J. S. Taylor who, as an employee, was injured October 11, 1919, may be reopened and an increased award granted upon an application filed by him in March, 1954.

On October 11, 1919, the claimant J. S. Taylor received an injury to his right hand in the course of and resulting from his employment with the Stone Mountain Coal Company, his employer. For this injury the claimant was originally granted an award of ten per cent permanent partial disability. On the ground that aggravation and progression of the condition of the claimant had resulted from the injury, the claim was reopened by the State Compensation Commissioner, upon the application of the claimant, and he was awarded an additional ten per cent permanent partial disability by the State Compensation Commissioner on July 2, 1938. Each award of ten per cent permanent partial disability has been paid to the claimant.

The claimant took no further action in the matter until March, 1954, when he filed an application in which he alleged aggravation and progression of his condition since his last examination and requested the State Compensation Commissioner to reopen the claim. By order entered July 16, 1954, the State Compensation Commissioner denied the relief prayed for on the ground that he did not have jurisdiction to consider the claim. Upon appeal by the claimant to the Workmen's Compensation Appeal Board, by order entered October 15, 1954, the order of the State Compensation Commissioner of July 16, 1954, denying the claim, was reversed and set aside, and the case was remanded to the State Compensation Commissioner with directions to reopen the claim. From that order of the board this Court granted this review upon the petition of the State Compensation Commissioner.

The statute in effect when the claimant was injured in October 1919, Chapter 10, Acts of the Legislature, 1913, Regular Session, which placed the administration of the workmen's compensation fund in the Public Service Commission of this State, contained this provision in Section 40 of the act: 'The power and jurisdiction of the commission over each case shall be continuing, and it may from time to time make such modification or change with respect to former findings or others with respect thereto, as, in its opinion, may be justified.'

By Chapter 9, Acts of the Legislature, 1915, Regular Session, the office of State Compensation Commissioner was created and authority to administer the workmen's compensation fund was vested in that officer; and Section 40 of the Act of 1913 was reenacted with that change.

Chapter 71, Acts of the Legislature, 1929, Regular Session, amended and reenacted Section 40 of the 1913 statute in this form: 'The power and jurisdiction of the commissioner over each case shall be continuing, and he may from time to time, after due notice to the employer, make such modifications or change with respect to former findings or orders with respect thereto as in his opinion may be justified; provided, no further award may be made except, within one year after death of employee in fatal cases, or, except in case of non-fatal injuries within two years after payments for temporary disability shall have ceased and within one year after the commissioner shall have made the last payment in any permanent disability case.'

This section as amended and reenacted and as redrafted without substantial change by the revisers was incorporated as Section 16, Article 4, Chapter 23, of the Code of 1931.

By Chapter 78, Acts of the Legislature, 1935, Regular Session, Section 16 was amended and reenacted. The amendment changed the one year period to two years in fatal cases and the two year period to three years after payments for temporary disability and added a new provision which is not pertinent to the questions here involved and need not be set forth in this opinion.

By Chapter 137, Acts of the Legislature, 1939, Regular Session, the section was again amended and reenacted and as amended contained this language: 'The power and jurisdiction of the commissioner over each case shall be continuing, and he may from time to time, after due notice to the employer, make such modifications or changes with respect to former findings or orders as may be justified: Provided, That no further award may be made in fatal cases arising after March seventh, one thousand nine hundred twenty-nine, except within two years after the death of the employee, or, in cases of non-fatal injuries on and after March seventh, one thousand nine hundred twenty-nine, except within three years after payments for temporary disability shall have ceased and within one year after the commissioner shall have made the last payment in any permanent disability case: And provided further, That no further award may be made in either fatal or non-fatal cases arising on account of injuries occurring prior to March seventh, one thousand nine hundred twenty-nine, unless written application for such award, signed personally by claimant, or, in case of claimant's infancy or physical or mental incapacity, by his or her guardian, next friend, or committee, be filed with the commissioner on or before September fifteenth, one thousand nine hundred thirty-nine. In any case in which an injured employee shall make application for a further adjustment of his claim, if such application be in writing and filed within the applicable time limit as prescribed by the next preceding paragraph, the commissioner shall pass upon and determine the merits of such application within thirty days after the filing thereof.'

After a minor amendment by Chapter 131, Acts of the Legislature, 1945, Regular Session, the present statute, Section 16, Article 4, Chapter 136, Acts of the Legislature, 1949, Regular Session, amended and reenacted the section which now contains these provisions: 'The power and jurisdiction of the commissioner over each case shall be continuing and he may from time to time, after due notice to the employer, make such modifications or changes with respect to former findings or orders as may be justified: Provided, however, That no further award may be made in fatal cases arising after March seventh, one thousand nine hundred twenty-nine, except within two years after the death of the employee, or, in case of non-fatal injuries, on and after March seventh, one thousand nine hundred twenty-nine, except within three years after payments for temporary disability shall have ceased or within one year after the commissioner shall have made the last payment in any permanent disability case: And provided further, That no such modification or change may be made in any case in which no award has been made, except within three years after the date of injury. In any case in which an injured employee shall make application for a further adjustment of his claim, if such application be in writing and filed within the applicable time limit as prescribed herein, the commissioner shall pass upon and determine the merits of such application within thirty days after the filing thereof.'

It should be observed that the provision that power and jurisdiction of the commissioner over each case shall be continuing and he may from time to time make such modifications or changes with respect to former findings or orders as may be justified, in substantially its present form, has been incorporated in the statute, by each enactment, since the Act of 1913; and that the provision of the Act of 1939 that no further award should be made in cases arising from injuries occurring prior to March 7, 1929, unless written application be filed on or before September 15, 1939, was omitted from the present statute when it was enacted in 1949.

The State Compensation Commissioner, upon whose petition this review was granted, contends that the provision in the statute enacted in 1939 limiting to September 15, 1939, the time in which to file...