Wood Coal Co. v. State Comp. Comm'r., (No. 8719)

• Court: Supreme Court of West Virginia
• Writing for the Court: HATCHER.
• Citation: 119 W.Va. 581
• Parties: Wood Coal Company v. State Compensation Commissioner et al.
• Decision Date: 08 February 1938
• Docket Number: (No. 8719)

119 W.Va. 581

Wood Coal Company
v.
State Compensation Commissioner et al.

(No. 8719)

Supreme Court of Appeals of West Virginia.

Submitted January 12, 1938.
Decided February 8, 1938.

[119 W.Va. 581]

1. Workmen's Compensation

Accrued compensation under Code, 23-4-6, is awarded compensation, due and payable.

2. Workmen's Compensation

The limitary provisions of Code, 23-5-1, relate to claimants of personal compensation, not claimants of compensation allegedly accrued to another person.

Kenna, Judge, absent.

Proceeding under the Workmen's Compensation Act, Code 1931, 23-1-1 et seq., by Mrs. Rex Hull, claimant, for compensation which had allegedly accrued to her hus-

[119 W.Va. 582]

band prior to his death, opposed by the Wood Coal Company, employer. From an award of the Workmen's Compensation Appeal Board, the employer appeals.

Reversed and remanded.

George W. Wood, for appellant.

Ira P. Hager, for respondents.

Hatcher, Judge:

November 8, 1930, the Compensation Commissioner fixed the disability of Rex Hull, an injured claimant of compensation, at 25%, payments on which expired December 30, 1930. Hull made timely objection and asked further consideration. February 27, 1931, the commissioner refused to reopen the claim. Thereafter, from time to time, Hull importuned the commissioner, without success, until September 21, 1933, when the claim was reopened as of July 9, 1933, on the basis of a temporary disability to be carried "for a reasonable length of time." Hull died April 3, 1934, without change in his last rating. April 22, 1934, his widow and children (under eleven years of age) represented to the commissioner that Hull had been totally disabled from the date of his injury to his death, and that they were entitled to the compensation which he should have had but did not receive, between December 30, 1930, and July 9, 1933. May 3, 1934, this claim was refused. May 7, 1934, the claimants protested and demanded a hearing. May 18, 1934, a hearing was refused. Nothing more was done until July 5, 1935, when the claim was re-presented. It was refused initially by the commissioner, but on appeal to the Board a hearing was directed, upon which the commissioner awarded Mrs. Hull "accrued compensation for the periods December 17, 1930, through July 8, 1933, and March 1, 1934, through April 2, 1934, upon a finding of fact that the claimant, Rex Hull, was totally disabled for the periods." On appeal to the Board, it held that Mrs. Hull was barred from participation in the amount found due under the claim of Rex Hull "as accrued compensation",

[119 W.Va. 583]

but that it be paid to her for the benefit of the children.

This proceeding involves two questions of law, viz: (1) Did the claimants ever have any lawful right to what they demand; and (2) if so, have they lost that right?

1. The statute relating to the first question is Code, 23-4-6, which provides as follows: "Compensation under this section shall be payable only to the injured employee, and the...