Yacomolish v. State Comp. Comm'r

• Decision Date: 10 February 1931
• Docket Number: (No. 6935)
• Court: West Virginia Supreme Court
• Parties: Julius Yacomolish v. State Compensation Commissionerand White Oak Fuel Company.

110 W.Va. 79

Julius Yacomolish

v.State Compensation Commissionerand White Oak Fuel Company.

(No. 6935)

Supreme Court of Appeals of West Virginia.

Submitted January 20, 1931.

Decided February 10, 1931.

Master and Servant

The State Compensation Commissioner cannot reduce an award on additional evidence furnished by the employer without first giving the claimant notice of his intention to reopen the claim.

Original proceedings by Julius Yacomolish for mandamus to be directed to the State Compensation Commissioner and others.

Writ awarded.

C. L. Smith and Sherman H. Eary, for relator.

II. B. Lee, Attorney General, B. Dennis Steed, Assistant Attorney General, and C. W. Dillon, for respondents.

Woods, Judge:

Claimant, who has been paid compensation on the basis of $16.00 per week for 80 weeks, seeks by mandamus, to compel the Commissioner to vacate and hold for naught certain findings or orders purporting to supersede a 30% rating, established by an award of March 4, 1930.

Claimant sustained a comminuted fracture on the left tibia and fibula on October 16, 1928. Prior to the award of March 4th, he had been paid on an open claim for 57-4/7 weeks, or $921.14, the last payment having been made on November 30, 1929. The commissioner, having received a report from his chief medical examiner recommending a 30% partial permanent disability rating, wrote the employer, under date of February 20th, to that effect, stating that such an award would carry compensation for 120 weeks, expiring February 10, 1931, and closed the letter with the request that "if you have any evidence tending to show said award should not be made, you file same in the department by March 3."

Receiving no reply, the commissioner on March 4th made an award of 30%, and so notified claimant. On March 21st, a report from the employer, enclosing an examination of claimant by the company doctor recommending 20%, was received, and by letter of April 4th, the claimant, without prior notice, was informed that the award of March 4th had been reduced to 20%. Payments having ceased under the alleged 20% award, the early part of May, the claimant, on June 5th, came in to see the commissioner about further payments and while there was subjected to another physical examination by the chief medical examiner, who reported claimant's condition to be the same as shown in the report of February 14th, when a 30% partial permanent disability rating was recommended. Notice of this examination was promptly forwarded the employer, with request for an opinion on whether or not claimant had more than a 20% disability. The reply, which indicated that 20% was sufficient, enclosed another physical examination made by the company doctor, making a like recommendation. Shortly thereafter (July 25th) the claimant was notified that he had been adequately compensated, and that his claim was closed. Objection to this action was made on August 2nd. Both the orders of April 4th and July 25th are sought to be set aside.

We do not question the commissioner's position that his power is continuing. Section 40, chapter 15P, Code. But even with such power there must be a degree of regularity in the making and setting aside of awards. Johnson v. Commissioner, 109 W. Va. 316, ...