Yeager v. State Compensation Com'r

• Decision Date: 24 January 1933
• Docket Number: 7492.
• Citation: 167 S.E. 617,113 W.Va. 257
• Parties: YEAGER v. STATE COMPENSATION COMMISSIONER et al.
• Court: West Virginia Supreme Court

167 S.E. 617

113 W.Va. 257

YEAGER v. STATE COMPENSATION COMMISSIONER et al.

No. 7492.

Supreme Court of Appeals of West Virginia.

January 24, 1933

Submitted January 17, 1933.

Syllabus by the Court.

Compensation commissioner electing to investigate claim in which neither employer's report nor employee's application were timely filed must dispose thereof on merits (Code 1931 23-4-15, 23-5-1).

The state compensation commissioner by electing to investigate the merits of a claim, in which neither the employer's report nor claimant's application were filed within six months after the alleged injury, thereby exercises the discretion given him by Code 1931, 23-4-15, to accept an application filed after the expiration of said six months' period, and must dispose of the claim upon its merits.

Appeal from State Compensation Commission.

Proceedings under the Workmen's Compensation Act by Joe Yeager to recover compensation for injuries sustained while employed by the Guyan Eagle Coal Company. From an order of the State Compensation Commissioner refusing an award for compensation the employee appeals.

Reversed and remanded.

H. D Rollins, of Charleston, for appellant.

H. B Lee, Atty. Gen., and R. Denis Steed, Asst. Atty. Gen., for respondents.

WOODS J.

Claimant, who failed to file a formal application for compensation within the period provided by Code 1931, 23-4-15, complains of an order, entered after a statutory hearing (23-5-1), wherein the commissioner declined to allow the said application to be filed, and refused an award.

It appears from the records that claimant suffered an injury, a hernia, in 1930; that he submitted to an operation; and that he was later discharged as able to work. For such injury he was paid compensation for 13 1/7 weeks. The present claim is for an alleged injury, a double inguinal hernia, received July 7, 1931, while claimant was attempting to load a piece of coal into a mine car. This, according to claimant, was reported to the mine foreman on the day following. Claimant saw the company doctor on the 8th; and tried to work that day as well as the next three days (loading only ten cars in four days). He was taken to a hospital on the 14th, and an operation for hernia performed on the 27th. On September 8th, claimant began corresponding with the commissioner. Information was fragmentary. On the 25th of September, Dr. Martin advised the commissioner as to the date of the injury, and that the claimant had been sent to the hospital; claimant informed commissioner, by letter of October 7th, that he was injured while in the employ of the Guyan Eagle Coal Company; and by his letter of November 7th explained that this was a new injury. The commissioner made no inquiry of the coal company concerning its failure to file the required report until January 23, 1932, two weeks after the expiration of the six months' period; nor was claimant ever admonished concerning the necessity of filing a formal application, nor forwarded a blank until subsequent to such time. The number given the 1930 claim was used in all the correspondence until March 9, 1932, when a blank application was forwarded claimant.

The inspector was placed on the claim on February 9, 1932, and took evidence in regard to the alleged injury. This evidence was transmitted to the commissioner on March 3d; on March 5th a formal report from the company, dated February 12, 1932, was received; an application blank was forwarded claimant on March 9th, executed on the 12th, and received by the commissioner on March 14th. On March 31st the following order was entered:

"This claim came on for review of evidence in the case of a hernia made up over a year after an alleged accident, in which the claimant does not know himself when the injury occurred. He did not experience any pain at the time he was supposed to have injured himself, and went on and finished the day's work and worked the next day; laid off two or three days, back to work and worked over a year.

"In accordance with chapter 23 of the Code, article 4, section 7, this hernia does not come within the purview of the Act, there having been no claim made within six months and no report made. The commissioner will not use his prerogative in article 4,

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