Turner v. State Compensation Com'r, No. 12132

• Court: Supreme Court of West Virginia
• Writing for the Court: BROWNING; LESLIE E. GIVEN; CAPLAN; BERRY
• Citation: 147 W.Va. 145,126 S.E.2d 379
• Parties: James W. TURNER v. STATE COMPENSATION COMMISSIONER and New River & Pocahontas Consolidated Coal Co.
• Docket Number: No. 12132
• Decision Date: 30 January 1962

Page 379

126 S.E.2d 379 147 W.Va. 145 James W. TURNER
v.
STATE COMPENSATION COMMISSIONER and New River & Pocahontas
Consolidated Coal Co. No. 12132. Supreme Court of Appeals of West Virginia. Jan. 30, 1962.
Submitted on Rehearing May 29, 1962.
Decided on Rehearing June 26, 1962.

Page 380

Syllabus by the Court.

1. Sections 1, 8c and 15b of Article 4, Chapter 23 of the Code, as amended, are pari materia and when so construed require a claimant, suffering from a pre-existing first stage silicosis, to show a perceptible aggravation of such condition to entitle him to the statutory benefits therefor.

[147 W.Va. 146] 2. Where the evidence shows that: claimant was suffering from a pre-existing first stage silicosis at the time of his employment in 1952; he continued in such employment until 1958 and thereafter was employed in similar employment by another employer from February to April, 1959; he applied for silicosis benefits in July, 1959, during the processing of which application X-rays were taken in 1960; and a comparison of the X-ray findings in 1952 and 1960 showed them to be identical, the claim is not compensable in the absence of any other evidence showing that claimant's pre-existing silicosis had been perceptibly aggravated under the provisions of Code, 23-4-1, as amended.

Mahan, Higgins, Thrift & Graney, Patrick C. Graney, Jr., Fayetteville, for appellant.

R. L. Theibert, Charleston, for appellees.

Page 381

BROWNING, Judge.

On January 30, 1962, this Court handed down the foregoing opinion in this case, reported in 123 S.E.2d at page 880, reversing the order of the Workmen's Compensation Appeal Board of July 10, 1961, and the order of the State Compensation Commissioner of March 14, 1961, awarding the claimant compensation benefits for silicosis in the first stage. That decision was unanimous, although Judge Given, since deceased, filed a concurring opinion in which Judge Berry joined. Thereafter, on the first day of March, 1962, counsel for the claimant filed a petition for rehearing which was granted by this Court on May 1, 1962. In the order granting the rehearing this Court directed that upon such rehearing three questions be briefed and argued: (1) the period of limitation in which to file a claim for silicosis benefits; (2) the period of limitation beyond which, when benefits are allowed and the charges therefor are allocated among multiple employers, such benefits may not be charged against a former employer; and (3) the chargeability of [147 W.Va. 147] such benefits against the surplus compensation fund provided for in Code, 23-3-1, as amended, in the event they may not be charged against any employer or employers.

Pursuant to the rehearing order, briefs were submitted and the case was reargued on May 29, 1962, by counsel for the claimant and the employer.

It is apparent from the briefs and argument of opposing counsel that they are in agreement that an application for silicosis benefits must be filed within two years after the last exposure of the claimant to silicon dioxide dust in harmful quantities. They are also apparently in agreement that Code, 23-4-1 and Code, 23-4-15b pertain only to the allocation of charges where there are multiple employers within the two-year period prior to the filing of a claim for benefits, and that any such charges may not be assessed against an employer totally without the two-year period immediately preceding the filing of claimant's application. Counsel for the claimant, in brief and argument, as well as counsel for the employer, are emphatic in their contentions that no award to this claimant could be charged to the surplus fund. Code, 23-3-1, as amended, provides: '* * * such surplus fund shall be sufficiently large to cover the catastrophe hazard, the second injury hazard, and all losses not otherwise specifically provided for in this chapter.' See upon this question Rogers v. State Compensation Commissioner (Martin v. State Compensation Commissioner), 140 W.Va. 376, 84 S.E.2d 218, particularly this quotation from the opinion in those consolidated cases: 'It is obvious that a claim for compensation for silicosis in the first stage does not relate to catastrophe hazard within the statutory definition of a catastrophe. See State ex rel. Mountain Fuel Company v. Trant, W.Va. 77 S.E.2d 608. It is also manifest that a claim for compensation for silicosis in the first stage does not involve a second injury hazard or a loss not otherwise specifically provided for in the statute. In consequence the surplus fund is not subject to a claim for compensation for silicosis in the first stage and such claim may not be charged against or paid from that fund.' As heretofore...