State ex rel. Murasky v. State Compensation Commissioner

Woods, Judge: Petitioner seeks by mandamus to require tbe state compensation commissioner to grant bim a rebearing under section 43, c. 71, Acts 1929, from an order of said commissioner refusing bim further compensation for an injury to bis leg, which be alleges to be total and permanent in nature. A demurrer to tbe petition and motion to quash tbe alternative writ awarded thereon were interposed on behalf of tbe commissioner, who for return denied tbe extent of injury set up in tbe petition, alleging that 25 per cent, partial total disability is tbe full measure of the injury, and in support thereof refers to tbe record made before tbe commissioner, which is incorporated in and made a part of said return. In tbe case of State ex rel. Meeks v. Commissioner, 108 W. Va. 68, 150 S. E. 230, it was held that a bearing by tbe com [219] pensation commissioner at tbe request of an employer, employee, or dependent, as provided for by'section 43 of chapter 71 of tbe Acts of 1929, applies only to matters going to tbe basis'of tbe claimant’s or employer’s right, and not to amounts or duration of awards. So, we are met at tbe outset with tbe question of whether or not tbe supplemental claim set up herein goes to tbe “basis of claimant’s right” within tbe meaning of said section. It appears from tbe examination of February 15,1929, made by one of tbe commissioner’s medical aids, after claimant had been paid compensation at tbe rate of $16 per week for one hundred weeks on a finding of 25 per cent, partial permanent disability, that “there is no change in claimant’s condition over former examination.” There is no evidence to indicate that this report does not properly state the facts. Claimant argues that the commissioner’s denial of additional compensation amounts to a new finding — a new ease — and therefore goes to the basis of his right. But does this necessarily follow? Such would undoubtedly be true if he had shown a more aggravated condition of- the injury, or a new claim arising therefrom. This position is taken on the ground that the condition relied on was unforseen at the time of the prior finding, and therefore not passed on. Were we to hold, as contended for by relator, that all supplemental claims go to the “basis of claimant’s right,” we would, in effect, be opening up the question of the sufficiency of the amounts and duration of awards, a matter within the discretion of the commissioner. Such matters are not appealable under the statute. State ex rel. Meeks v. Commissioner, supra; McShan v. Heaberlin, 105 W. Va. 447, 143 S. E. 109. We are of opinion that the relator has not shown that clear legal right to have performance of the act he seeks to coerce performance of, and the plain duty to perform it on the part of the respondent, essential to invoke the aid of mandamus. State ex rel. Ferrel v. Commissioner, 108 W. Va. 477, 151 S. E. 706. Writ denied.