Webb v. State Compensation Com'r, No. 10503

• Court: Supreme Court of West Virginia
• Writing for the Court: GIVEN; BROWNING
• Citation: 138 W.Va. 21,76 S.E.2d 248
• Parties: WEBB, v. STATE COMPENSTATION COM'R.
• Docket Number: No. 10503
• Decision Date: 11 June 1953

Page 248

76 S.E.2d 248 138 W.Va. 21 WEBB,
v.
STATE COMPENSTATION COM'R. No. 10503. Supreme Court of Appeals of West Virginia. Submitted Jan. 14, 1953.
Decided Feb. 10, 1953.
Dissenting Opinion June 11, 1953.

Syllabus by the Court.

Chapter 136, Acts of the Legislature, 1949, removing the requirement of Chapter 131, Acts of the Legislature, 1945, that tuberculosis accompany disease of silicosis to constitute silicosis in the third stage, inures to the benefit of a dependent widow of an employee sound by the State Compensation Commissioner, under the 1945 Act, to be suffering from silicosis in the third stage, and where death of the employee occurs within six years from the date of the last harmful exposure, although subsequent autopsy reveals that tuberculosis did not accompany the disease of silicosis.

Page 249

Meadows & Wilson, Beckley, for appellant.

Mahan, White & Higgins, Fayetteville, for appellee.

GIVEN, Judge.

In this appeal from an order of the Workmen's Compensation Appeal Board, denying benefits to a dependent claimant, we have for determination a question as to whether a widow of an employee, who was granted an award for silicosis in the third stage, under the 1945 Act of the Legislature, Chapter 131, the employee not having died until after the effective date of the 1949 Amendment to that Act, may recover benefits, notwithstanding the [138 W.Va. 22] employee did not suffer from silicosis in the third stage, as defined by that Act. Before an award could have been made for silicosis, in the third stage, under the 1945 Act, it was necessary that the commissioner find that the employee was suffering from silicosis, and that the disease of silicosis be accompanied 'by active tuberculosis of the lungs'. The requirement that silicosis be accompanied by tuberclosis was eliminated by the 1949 Amendment.

In the instant case the employee was awarded benefits on the 8th day of August, 1947, for silicosis in the third stage, and received benefits thereunder until the time of his death, April 3, 1951. The Silicosis Medical Board determined that the employee was suffering from 'advanced silicosis with super-imposed tuberculosis.' The commissioner confirmed that finding and 'awarded compensation on a total permanent disability basis for silicosis in its third stage * * *.' Subsequent to the filing of the widow's claim, an autopsy was performed upon the body of the employee. The findings of the pathologist who performed the autopsy established that the employee died of advanced silicosis, unaccompanied by tuberculosis. The widow was denied dependent benefits on the theory that the 1945 Act controlled the granting thereof, and that the Act permitted the payment of such benefits only in the event the employee died of silicosis accompanied by tuberculosis.

The pertinent language of the 1945 Act reads: '* * * (d) If [138 W.Va. 23] 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; as to such benefits sections eleven to fourteen, inclusive, of this article shall apply.'

The pertinent language of the 1949 Amendment, Chapter 136, now part of Code, 23-4-6a, reads: '* * * (d) 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 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; as to such benefits sections eleven to fourteen inclusive, of this article shall apply.'

It will be noticed that the language used in the 1945 Act and the 1949 Amendment is the same, except that the amendment substitutes the words 'and the commissioner has determined at the time of the original award that he [the employee] was suffering from silicosis in the third stage', for the words 'and the commissioner determines that he [the employee] was suffering from silicosis in the third stage'. The change in the wording effected by the amendment is, we think, very significant. By the 1945 Act the commissioner, in the consideration of the claim of a dependent, was authorized to determine whether the employee had suffered silicosis in the third stage, while under the 1949 Amendment the question to be determined by the commissioner is whether there was a finding of third stage silicosis 'at the time of the original award'. The change effected by the amendment precludes the relitigation of the question, in a proceeding of a dependent claimant, as to whether the employee suffered silicosis in the third stage. No new right or claim is created by the amendment.

Page 250

The employer is merely prevented from relitigating a question which was, in a proper proceeding, previously decided against him.

Appellee contends, however, that to permit recovery by claimant would amount to giving retrospective effect to the amendment, and that the statute in effect at the time of the injury to the employee controls the right of a dependent claimant. Reliance is had upon Hardin v. Workmen's Compensation Appeal Board, 118 W.Va. 198, 189 S.E. 670; Greer v. Workmen's Compensation Commissioner, 123 W.Va. 270, 15 S.E.2d 175; Lester [138 W.Va. 24] v. State Compensation Commissioner, 123 W.Va. 516, 16 S.E.2d 920; and Consentina v. State Compensation Commissioner, 127 W.Va. 67, 31 S.E.2d 499. In the Hardin case, at the time of the injury to the employee, a statute permitted payment of benefits to dependents only in the event the employee died within one year after the...