Terry v. State Compensation Commissioner, No. 12201

• Court: Supreme Court of West Virginia
• Writing for the Court: HAYMOND
• Citation: 147 W.Va. 529,129 S.E.2d 529
• Parties: Mrs. Charles M. TERRY, Widow of Charles M. Terry v. STATE COMPENSATION COMMISSIONER and Pocahontas Fuel Company, Inc.
• Decision Date: 12 February 1963
• Docket Number: No. 12201

Page 529

129 S.E.2d 529 147 W.Va. 529 Mrs. Charles M. TERRY, Widow of Charles M. Terry
v.
STATE COMPENSATION COMMISSIONER and Pocahontas Fuel Company, Inc. No. 12201. Supreme Court of Appeals of West Virginia. Submitted Jan. 9, 1963.
Decided Feb. 12, 1963.

Syllabus by the Court.

1. When a statute is clear and unambiguous and the legislative intent is plain the statute should not be interpreted by the courts, [147 W.Va. 530] and in such case it is the duty of the courts not to construe but to apply the statute.

2. Under the plain and unambiguous provision of Section 6a, Article 4, Chapter 136, Acts of the Legislature, 1949, Regular Session, before the dependent of an employee who dies from silicosis may be awarded the benefits provided by the statute it must be established that the commissioner determined, at the time the original award was made to the employee, that the employee was suffering from silicosis in the third stage.

Page 530

R. L. Theibert, Charleston, for appellant.

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

HAYMOND, Judge.

This is an appeal by the widow of Charles M. Terry from an order entered by the Workmen's Compensation Appeal Board November 5, 1962, which reversed an order of the State Compensation Commissioner entered July 12, 1962, by which the claimant, as the widow of an employee who died from silicosis, was awarded the benefits provided by statute for herself and the children of her deceased husband.

The material facts are not disputed and the question presented for decision is a question of law.

Charles M. Terry, having contracted the disease of silicosis while employed by the Pocahontas Fuel Company, filed his claim for silicosis benefits during his lifetime. He was last exposed to silicon dioxide dust in harmful quantities on August 18, 1953, and he filed his application for benefits on September 16, 1953.

The Silicosis Medical Board examined him on February 2, 1954, and found him to be suffering from silicosis in the second stage and that, though he was totally disabled, his [147 W.Va. 531] disability was not due entirely to silicosis. These findings were not protested and the commissioner, by order entered March 1, 1954, granted the employee an award of two thousand dollars for second stage silicosis. He did not object to or appeal from that order but accepted and was paid the second stage silicosis award of two thousand dollars. There was no determination by the commissioner at the time of the original award that the employee was suffering from silicosis in the third stage, although it subsequently appeared in connection with the claim of his widow that he had, and that his death on October 20, 1955, resulted from, silicosis in the third stage.

The claimant filed her application for benefits for herself and the four children of the deceased employee on March 3, 1956, which was within one year of his death and within six years of his last injurious exposure to silicon dioxide dust in harmful quantities. After an autopsy and medical testimony which disclosed that the employee was suffering from silicosis in the third stage at the time he received the award for silicosis in the second stage and that he had died from silicosis in the third stage, the commissioner by his order of July 12, 1962, awarded the benefits provided by the applicable statute to the widow and the four children of the deceased employee. From the order of the appeal board which reversed the order of the commissioner and held the claim of the widow and the children to be not compensable, this Court granted this appeal upon the application of the widow.

Section 6a, Article 4, Chapter 136, Acts of the Legislature, 1949, Regular Session, designated as Section 6a, Article 4, Chapter 23, Michie's West Virginia Code of 1955, Annotated, to the extent here pertinent, provided that 'If the employee dies from silicosis within six years from the date of

Page 531

his list injurious exposure to silicon dioxide dust in harmful quantities and the commissioner has determined at the time of the original award that he was suffering from silicosis in the third stage, the benefits shall be in the amounts and to the persons provided for in section ten of this article;'.

[147 W.Va. 532] Section 10, Article 4, Chapter 136, Acts of the Legislature, 1949, Regular Session, as amended by Section 10, Article 4, Chapter 179, Acts of the Legislature, 1953, Regular Session, designated as Section 10, Article 4, Chapter 23, Michie's West Virginia Code of 1955, Annotated, to the extent here pertinent, provided that if death of an employee 'results from determined third stage silicosis * * * within six years from the date of the last exposure to the hazard of silicon dioxide dust' the payment to a dependent widow shall be sixty dollars a month until death or remarriage of such widow and in addition fifteen dollars for each child under eighteen years of age.

Inasmuch as the last injurious exposure of the employee to silicon dioxide dust in harmful quantities on August 18, 1953, the filing of his application for benefits on September 16, 1953, the award for second stage silicosis on March 1, 1954, the death of the employee on October 20, 1955, and the filing of the application by the widow for benefits on March 3, 1956, all occurred while Section 6a, Article 4, Chapter 136, Acts of the Legislature, 1949, Regular Session, was in effect, the above quoted provisions of that section which prescribed the conditions to be satisfied by a dependent widow to entitle her to the benefits provided by Section 10, Article 4, Chapter 136, Acts of the Legislature, 1949, Regular Session, as amended by Section 10, Article 4, Chapter 179, Acts of the Legislature, 1953, Regular Session, apply to and control the decision of her claim in this proceeding. Neither the provisions of the prior statute, Section 6a, Article 4, Chapter 131, Acts of the Legislature, 1945, Regular Session, that 'If the employee dies from silicosis within six years from the date of his last injurious exposure to silicon dioxide dust in harmful quantities and the commissioner determines that he was suffering from silicosis in the third stage, the benefits shall be in the amounts and to the persons provided for in section ten of this article;' nor the provisions of the later and present statute, Section 6a,...