Taylor v. State Workmen's Compensation Commissioner
| Decision Date | 25 March 1969 |
| Docket Number | No. 12779,12779 |
| Court | West Virginia Supreme Court |
| Parties | Acie TAYLOR v. STATE WORKMEN'S COMPENSATION COMMISSIONER, and Island Creek Coal Company. |
Syllabus by the Court
1. 'The one year period of limitation provided by Section 16, Article 4, Chapter 23, Code, 1931, as amended, begins to run from the entry of a permanent partial disability compensation award when such award has been paid when made by prior payments of temporary total disability compensation and the amount of such compensation exceeds the amount of the permanent partial disability award; and an application to reopen a claim for compensation after the expiration of one year from the entry and payment of such award is barred by the statutory limitation of one year from the payment of such award and must be refused by the commissioner.' Syllabus, Bailes v. State Workmen's Compensation Commissioner, W.Va., 161 S.E.2d 261.
2. The right to workmen's compensation benefits is created wholly by statute. Under the workmen's compensation statutes of this state, a claimant has a right to receive benefits and the workmen's compensation commissioner may pay benefits to a claimant only as authorized by statute.
3. 'By reason of Code, 1931, 23--4--16, as amended, which provides that 'no further award may be made * * * in case of nonfatal injuries, * * * except * * * within one year after the commissioner shall have made the last payment in any permanent disability case', the Workmen's Compensation Commissioner has no jurisdiction to reopen a claim upon an application which is filed after the expiration of the one-year statutory period.' Point 1 Syllabus, Stroupe v. Workmen's Compensation Commissioner, 151 W.Va. 415 (152 S.E.2d 544).
4. The running of the one-year period prescribed by Code, 1931, 23--4--16, as amended, for reopening a workmen's compensation claim is not tolled or suspended by reason of the fact that the claim, upon a previous application by the claimant, is in litigation on appeal to the appeal board and subsequently on appeal to this Court.
Estep, Smith & Eiland, Edward I. Eiland, Logan, for appellant.
Patrick J. Flanagan, Welch, for appellee.
This workmen's compensation case is before the Court on an appeal by the employer, Island Creek Coal Company, from an order entered by the Workmen's Compensation Appeal Board on September 4, 1968, which affirmed a ruling made by the Workmen's Compensation Commissioner embodied in an order entered by him on April 4, 1968, by which order the commissioner made an award of 35% Permanent partial disability benefits to Acie Taylor, the claimant.
The basic question presented for decision on this appeal is whether the appeal board erred in holding that the pertinent period prescribed by Code, 1931, 23--4--16, as amended, for making application for further adjustment of a claim for workmen's compensation benefits was tolled or suspended for the period of time during which the claim, upon a prior reopening, was in litigation on appeal to the appeal board and subsequently on appeal to this Court. The facts pertinent to a decision of this case are undisputed.
The claimant sustained an injury to his back on February 20, 1962. He received temporary total disability benefits for a period of 88 2/7 weeks, the last payment having been received by him on November 5, 1963. By an order entered by the commissioner on November 13, 1963, the claimant received an award of 5% Permanent partial disability benefits. The claimant previously having received payment of benefits on a total temporary basis in excess of the 5% Award, the commissioner, pursuant to the provisions of Code, 1931, 23--4--6(i), as amended, ruled that no further payment of benefits would be made to the claimant on the 5% Award.
On an application of the claimant dated May 1, 1964, the claim was reopened by the commissioner on May 11, 1964. This reopening obviously was made considerably less than one year from November 13, 1963, the date of the award of 5% Permanent partial disability benefits. After a protest and hearing, the commissioner entered an order on November 4, 1964, affirming his prior order by which he had granted the claimant an award of total permanent disability benefits. By an order entered on March 1, 1966, the appeal board reversed the ruling of the commissioner and held that the claimant had been fully compensated by the 5% Award. On application of the claimant, this Court, on June 13, 1966, granted an appeal from the order and ruling of the appeal board. By a unanimous opinion announced on September 13, 1966, this Court affirmed the order of the appeal board. On February 24, 1967, the claimant's petition for a rehearing was denied. Taylor v. Workmen's Compensation Commissioner, 151 W.Va. 409, 151 S.E.2d 283.
On October 31, 1966, counsel for the claimant wrote a letter to the secretary of the commissioner, enclosing therewith an application of the claimant also dated October 31, 1966, requesting a reopening of the claim. The letter and the application were filed in the office of the commissioner on November 1, 1966. The letter contains the following language:
'In view of the fact that it has been almost three years since the claimant received his last check under the last payment under temporary total disability basis, it will be appreciated, in order to save he claimant's rights, if you will have the enclosed application by the claimant stamped and filed in your office, for further consideration by the Commissioner, in the event the Supreme Court does not reverse and set aside the order of the Workmen's Compensation Appeal Board, dated March 1, 1966, and reinstate the Commissioner's order of November 3, 1965.'
Language similar to that quoted immediately above was contained in the claimant's application for reopening. This language in counsel's letter and in the claimant's application for a reopening clearly indicates that the claimant and his counsel were of the opinion that the claimant had a period of three years from the date of 'the last payment under temporary total disability basis' within which to apply for further adjustment of the claim; and that such three-year period was running, notwithstanding the fact that the claim, on the prior reopening, was in litigation on appeal to the appeal board and subsequently on appeal to this Court.
On March 2, 1967, counsel for the claimant wrote an additional...
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