Meeks v. State Compensation Commissioner

*69 Maxwell, Judge: In consequence of 'an injury received in the course of Ms employment relator was awarded compensation for a period of eight weeks. Thereafter he applied for further compensation Which was refused. Thereupon he notified the commissioner in writing that he objected to the finding and demanded a hearing in pursuance of section 43, Chapter 71 of the Acts of the Legislature, 1929. The commissioner refused the hearing. The purpose of this proceeding is to compel him to grant it. Section 43, Chapter 71, Acts of the Legislature 1929, is an amendment of section 43, Chapter 15P, Code 1923. Said section of the Code provided: ‘ ‘ The commissioner shall have full power and authority to hear and determine all questions within this jurisdiction, * * * and the decision of the commissioner thereon shall be final; provided, in case the final action of such commissioner denies the right of the claimant to receive compensation from the fund or directly from the employer, as the case may be, on the ground that the injury was self-inflicted, or on the ground that the injury was not received in the course of and resulting from his employment, or upon any other ground going to the basis of the claimant’s rights, then the claimant may, within ninety days after notice of the final action of such commissioner, apply for an appeal to the Supreme Court of Appeals * * The portion of the amendment which supplants the part of the old statute just quoted reads: “ * * * * but upon the making, of any award going to the basis of claimant’s right to compensation, as hereinafter provided from .the fund or directly from any employer under section fifty-four, or upon the review of any action of any employer under section fifty-four, the commissioner shall give notice in writing to employer, employee or dependent, as the case may be, of his action, which action shall be final unless the employer, employee or dependent shall, within ten days after receipt of said notice, object to said finding, in which event upon receipt of objection in writing from the employer, employee or dependent relative to the basis of the claim on the ground that *70 tbe injury was self-inflicted or that it was not received in .tbe course of and resulting from bis employment, or upon any other ground going to tbe basis of tbe claimant’s or employer’s right, tbe commissioner shall set a time and place for tbe bearing of evidence, notifying both tbe employer and claimant at least ten days in advance; and tbe evidence taken shall be transcribed and become a part of tbe record in tbe proceedings, together with other records thereof in tbe commissioner’s office. After said bearing tbe action of tbe commissioner affirming, revising or modifying bis former action shall be final; provided, however, That tbe claimant or tbe employer may, within ninety days after notice of tbe final action of. tbe commissioner, apply to tbe supreme court of appeals for a review of tbe record and such decision.” It will be noted that tbe changes contemplated in this amendment are procedural. They merely provide for a further development of the case by tbe commissioner before appeal to this Court. No new ground for appeal is presented. Both tbe old statute and tbe new predicate tbe right of appeal upon some question going to tbe right of claimant to compensation in tbe first instance. Questions involving tbe amount of compensation are not appealable under tbe statute. Appealable matters lie only at tbe basis of tbe right to an award. McShan v. Heaberlin, 105 W. Va. 407. Relator admits bis case is not appealable under either tbe Code or tbe amendment. Relator claims, however, that tbe bearing provided for in tbe amendment is obligatory upon tbe commissioner as to any disputed questions regardless of their nature. To this proposition we cannot accede. Tbe amendment provides that tbe interested party may “object to tbe finding * * * relative to tbe basis of a claim on tbe ground that tbe injury was self-inflicted or that it was not received in tbe course of and resulting from bis employment or upon any other ground going to tbe basis of. claimant’s or employer’s right * * This language is restrictive in its nature and limits tbe hearing to matters going to tbe basis of tbe claimant’s or employer’s right; and does not include amounts of awards. Indeed, tbe appeal contemplated by tbe amendment is from such bearing. Such being tbe situation, it clearly follows that tbe relator is *71 not entitled to a mandamus to require tbe commissioner' to grant a bearing on the question of a further award, the same not being a matter going to the basis of relator’s right to compensation. That matter was heretofore determined in his favor and he was paid substantial compensation. In the light of the foregoing, the alternative writ of mandamus will be denied. Writ denied.