Whited v. State Comp. Comm'r, (No. 10054)
| Decision Date | 05 October 1948 |
| Docket Number | (No. 10054) |
| Citation | 131 W.Va. 646 |
| Parties | Joseph Andrew Whited v. State Compensation Commissioner, et al. |
| Court | West Virginia Supreme Court |
1. Workmen's Compensation
Under Section 3, Article 5, Chapter 131, Acts of the Legislature, Regular Session, 1945, the Workmen's Compensation Appeal Board is without jurisdiction to hear and determine an appeal from an order of the State Compensation Commissioner, written notice of such appeal having been filed in the office of said commissioner more than sixty days after the date of the action complained of.
2. Workmen's Compensation
An order of the Workmen's Compensation Appeal Board, void for lack of jurisdiction, is appealable to this Court for the sole purpose of adjudicating its invalidity.
Appeal from Workmen's Compensation Appeal Board.
Proceeding under the Workmen's Compensation Act by Joseph Andrew Whited, opposed by the Pocahontas Corporation, employer, to recover compensation for silicosis in the second stage. From an order of the Workmen's Compensation Appeal Board affirming the order of the State Compensation Commissioner making an award to the claimant, the employer appeals.
Reversed and remanded.
Crockett & Tutwiler, and H. R. Hawthorne, for appellant.
Hillis Townsend and W. J. Thompson, for appellee.
On October 16, 1947, the State Compensation Commissioner made an award to Joseph Andrew Whited, hereinafter referred to as "claimant", in the sum of sixteen hundred dollars for silicosis in the second stage. The order of the commissioner was affirmed by the Workmen's Com- pensation Appeal Board on February 7, 1948, and, on application of The Pocahontas Corporation, employer of claimant, hereinafter referred to as "employer", this Court granted an appeal from the order of the board.
Under date of January 15, 1947, claimant filed with the commissioner his application for compensation for silicosis.
The employer's report having been theretofore filed, the commissioner, on February 24, 1947, entered an order placing the claim on the hearing docket "* * * for the purpose of producing evidence on the nonmedical questions * * *." The hearing on the nonmedical questions was held on May 6, 1947, and on July 22, 1947, the commissioner made, substantially, the following findings: (1) That claimant had been employed by employer since August 22, 1939; (2) that the duties of claimant's employment were those of motorman; (3) that claimant had been employed in coal mines since 1903; (4) that claimant did not wilfully expose himself to silicon dioxide dust; (5) that the average weekly earnings of claimant at the time of his application exceeded twenty-seven dollars; and (6) that claimant is still employed by employer, so that the last date of injurious exposure is not determined. Pursuant to the foregoing findings, the commissioner, by the same order, referred the claim to the silicosis medical board for its review and disposition.
Upon review of the claim the silicosis medical board found in substance: (1) That claimant was suffering from silicosis in its second stage; and (2) that "* * * claimant had sufficient exposure to silicon dioxide dust in * * * employment to have produced or to have perceptibly aggravated a pre-existing silicosis, and that his harmful exposure continued up to within one year of the date of the filing of his application * * *."
The commissioner notified claimant and employer by letter on September 11, 1947, of the findings of the silicosis medical board, and further notified them that either had fifteen days within which to file objections to the findings.
No objections having been made, the commissioner, on October 16, 1947, entered an order granting claimant an award of compensation benefits in the amount of sixteen hundred dollars, as above stated.
A letter bearing date November 14, 1947, addressed to the Secretary of the Workmen's Compensation Commission, advised the commissioner that claimant had died on October 12, 1947, and further stated: "We have the check for $1,600.00, and desire to return it and appeal from the Commissioner's order of October 16, if necessary." The name of the employer's counsel is typed at the bottom of that letter.
The secretary of the commission, on December 5, 1947, forwarded to counsel for employer blank forms to be prepared and filed for an appeal to the Workmen's Compensation Appeal Board. Such forms were completed and filed with the commissioner' on January 9, 1948.
The employer now contends that the commissioner was without authority to make an award of compensation benefits for second stage...
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