Winston v. City of Richmond

• Decision Date: 11 October 1954
• Citation: 196 Va. 403,83 S.E.2d 728
• Parties: KATIE H. WINSTON AND HERBERT T. WILSON v. CITY OF RICHMOND
• Court: Virginia Supreme Court

Page 728

83 S.E.2d 728

196 Va. 403

KATIE H. WINSTON AND HERBERT T. WILSON v. CITY OF RICHMOND.

Supreme Court of Appeals of Virginia

October 11, 1954.

Dervishian, Spinella & Dervishian, for the appellants.

J. Elliott Drinard and M. Dannehl Aldridge, Jr., for the appellee.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

The main question on this appeal is whether the failure of the employee to file a claim for compensation within the statutory period bars his dependents from the compensation provided by § 65-62 of the Code, part of the workmen's compensation law.

William J. Winston was employed by and worked for the City of Richmond for some twenty-one years in the department of public safety as a lineman and cable splicer. His job required him to work in the manholes under the city streets where carbon monoxide gas was present. Early in 1946 he sought medical attention and complained of extreme dizziness. Afterwards he consulted other doctors, had hospital treatments and examinations and was found to have an extensive brain atrophy. His trouble was diagnosed as being chronic and progressive. He became incapacitated for work and on September 3, 1948, the council of the city, by joint resolution, directed the city comptroller to pay monthly 'as other salaries are paid' the sum of $234.24 'until otherwise directed by the Council,' to William J. Winston, 'who was disabled by injuries received in the line of duty;' in return for which Winston was required to execute a waiver of any right to a pension or disability or retirement allowance, including the employee's annuity savings fund.

The city continued to make these payments to Winston until his death on January 3, 1950, the total amount paid him being $4,590.84.

Winston filed no claim for compensation under the workmen's compensation law; but on December 5, 1950, less than a year after his death, his widow and infant son filed with the Industrial Commission their claim for compensation. A hearing was had and Hearing Commissioner Robinson filed his opinion finding that 'a clear preponderance of the evidence leads inescapably to the conclusion that protracted exposure to carbon monoxide gas in the course of his employment resulted in Winston's incapacity and death;' that his widow and son were wholly dependent upon him, but because Winston had filed no claim during his lifetime, his dependents had no enforceable claim after his death. Accordingly an award dated November 13, 1953, was made dismissing their claim on the ground that 'although the decedent's incapacity and death were occasioned by occupational disease arising out of and in the course of his employment,' the claim of his dependents could not be entertained because Winston had not filed a claim within the prescribed time.

On review by the full Commission the opinion was by Commissioner Nickels, who questioned the causal connection between the death of the decedent and the carbon monoxide gas, but ended up with the statement that '(The) full Commission upon review affirms the award of November 13, 1953. ' Commissioner Nuckols concurred in the result, stating in his opinion 'that the evidence establishes an unbroken chain of causation between the death of the workman and his injurious exposure to the hazards of carbon monoxide poisoning in the course of his employment with the City of Richmond. ' An award was made by the full Commission 'affirming the award of November 13, 1953.'

We take these opinions and awards as constituting a finding of fact that the decedent's incapacity and death were caused by an occupational disease arising out of and in the course of his employment, by which we are bound on this appeal. Code 1950, § 65-94; Johnson v. Capitol Hotel, 189 Va. 585, 588, 54 S.E. (2d) 106, 107. That finding is amply supported by the evidence and confirmed by the admission of the city council in the joint resolution that Winston 'was disabled by injuries received in the line of duty.'

Section 65-46 of the Code provides that 'the incapacity for work or death of any employee resulting from an occupational disease * * * shall be treated as the happening of an injury by accident, or death by accident, and the employee or in case of his death his dependents shall be entitled to compensation as provided by the Act. ' The Hearing Commissioner found November 8, 1947, to have been the date of Winston's incapacity for work. His death occurred, as stated, on January 3, 1950.

Section 65-62 of the Code provides that if death results from the accident within six years, the employer shall pay, 'subject, however, to the provisions of the other sections of this Act,' to the dependents of the employee, ascertained as of the time of the accident, weekly payments for the time and within the limits specified by this section, and with the provision that when weekly payments have been made to the injured employee before his death the compensation to dependents shall begin from the date of the last of such payments but shall not continue more than 300 weeks 'from the date of the injury.'

One of the 'other sections of this Act' to which the provisions of § 65-62 are made subject is § 65-49 of the Code, in the chapter on Occupational Diseases. As that section was in February, 1948, when Winston's illness was first diagnosed as an occupational disease, it provided as follows:

'The right to compensation under this chapter shall be forever barred unless a claim be filed with the Industrial Commission within one year after the claimant first experiences a distinct manifestation, or a diagnosis is made, whichever shall first occur, of an occupational disease; and, if death results from the occupational disease, unless a claim therefor be filed with the Commission within one year thereafter.'

Section 65-49 was later amended by Acts 1952, pp. 230-1, 1954 Cumulative Supplement to the Code, * but the changes made are not material here as Winston's death did not occur within the year after 'a distinct manifestation,' or 'a diagnosis' of his occupational disease.

The parties seem to agree that the rights of the dependents are to be determined according to § 65-49 before the amendment. The claim of the dependents was filed within one year after Winston's death and their right to compensation depends on whether a claim must also have been filed by Winston within a year after the diagnosis in February, 1948.

Section 65-49 is in plain words. It deals with the right to compensation 'under this chapter;' that is, with the right of any person to compensation under this chapter on occupational diseases. It provides that the right to compensation shall be forever barred (1) unless a claim is filed within one year after the claimant first experiences the manifestation or a diagnosis is made, and, if death results, (2) unless a claim therefor is filed within one year after the death.

The right to compensation under the workmen's compensation law is granted by statute, and in giving the right the legislature had full power to prescribe the time and manner of its exercise. When the legislature has spoken plainly it is not the function of courts to change or amend its enactments under the guise of construing them. The province of construction lies wholly within the domain of ambiguity, and that which is plain needs no interpretation. Almond v. Gilmer, 188 Va. 1, 14, 49 S.E. (2d) 431, 439.

Reason is not wanting for requiring that a claim shall be filed both by the employee for his disablement and by his dependents for his death. In Whitmyre v. International Business Mach. Corp., 267 N.Y. 28, 195...