Vernon v. State Compensation Commissioner

Given, Judge: This case is before this Court on appeal from an order of the Workmen’s Compensation Appeal Board, entered on the 10th day of December, 1949, reversing an order of the compensation commissioner. The order of the commissioner, entered August 12, 1949, affirmed his non-medical findings and the findings of the medical board, to the effect that claimant, James Edward Vernon, was suffering from the occupational disease of silicosis, in the second stage, and that the disease was contracted by the claimant as an employee of the defendant The Pocahontas Corporation. The award of the commissioner was. for $1600.00, the amount fixed at the time by the statute [349] for silicosis, second stage disability. Acts of the Legislature, 1945, Chapter 131, Section 6-a. There appears no dispute as to any material fact. The employer admits, for the purposes of this case, that the claimant, at the time of filing the claim herein, was suffering from silicosis in the second stage and that the disease was contracted while claimant was in its employ, and before the employer had elected to subscribe under the then separate silicosis feature of the Workmen’s Compensation Act. Claimant commenced work for defendant in 1923 and continued in its employ, working regularly until May 27, 1947, except for short periods of absence due to sickness. The nature of his work was largely of a supervisory nature in the opening and operation of coal mines. Much of his work consisted in drilling through sandstone and slate and was in the presence of large amounts of dust arising therefrom. The employer, on October 6, 1940, after considerable negotiation, entered into a compromise settlement with claimant, paid him the sum of $1,000.00, the amount fixed by the statute in effect at that time for silicosis in the second stage, and received from him a release, the pertinent parts of which are: “* * * I, J. E. Vernon * * * do> * * * release * * * and discharge The Pocahontas Fuel Company, Incorporated and The Pocahontas Corporation, and its or their successors, of and from any and all manner of actions, damages, controversies, claims and demands; which I, * * * may now have, or may at any time hereafter have, against the said Pocahontas Fuel Company, Incorporated or The Pocahontas Corporation, or its or their successors, for, * * * all losses, injuries and/or damages, * * * growing out of * * * personal injuries * * * or occupational diseases * * * received or incurred by me * * * upon any premises or property of said Pocahontas Fuel Company, Incorporated or The Pocahontas Corporation, whether I was at the time employed * * * or otherwise; and I do hereby declare any and all such claims or demands to be, by the' payment aforesaid [350] wholly and forever satisfied, released and extinguished; On June 15, 1943, subsequent to the execution of the release, The Pocahontas Corporation elected to pay the premiums required by the act and the compensation commissioner issued a certificate showing that the defendant had so elected and that it was “entitled to the benefits and protection of said Act”. The Pocahontas Corporation duly filed its plea herein setting up the release as a satisfaction and discharge of the claim. Code, 23-2-7, contains the following provision relating to release or waiver of benefits and obligations arising under the Workmen’s Compensation Act: “* * * No employer or employee shall exempt himself from the burden or waive the benefits of this chapter by any contract, agreement, rule, or regulation, and any such contract, agreement, rule, or regulation shall be pro tanto void.” In Walker v. Compensation Commissioner, 107 W. Va. 531, 149 S. E. 604, 65 A. L. R.n, this Court held: “A contract of settlement between claimant and employer, whereby the former waives any benefits under the Workmen’s Compensation Act, is void.” To the same effect is the holding in Kincannon v. Compensation Commissioner, 107 W. Va. 533, 149 S. E. 665. In these cases, however, the release or settlement was effected after the employer had become a subscriber to the fund and was clearly bound by the provisions of the act. Here the employer was a nonsubscriber at the time of the execution of the release but later elected to become a subscriber, and was a subscriber at the time of the filing of the claim herein. Counsel have referred us to no case dealing with this question and after diligent search we have found none. Under the act an employer may become a subscriber or may stay without the act as he may elect. He is not compelled to subscribe to the fund but is denied the benefit of certain common law defenses should he elect to stay without the act. Even after voluntarily becoming a subscriber he may withdraw and “* * * Upon with [351] drawal from the fund or termination of election of any employer, he shall be refunded the balance due him of his deposit, after deducting all amounts owed by him to the workmen’s compensation fund, and the commissioner shall notify the employees of such employer of said termination in such manner as he may deem best and sufficient. * * *.” Code, 23-2-5. It will be noted that the language of the statute, Code, 23-2-7, quoted herein, does not expressly limit the rights of the employer or the employee to contract with reference to burdens or benefits at the time of the existence of such relationship. It limits the right to “exempt himself from the burden or waive the benefits of this chapter”. This clearly indicates, we believe, the intention to require of the employer and the employee, while subject to the act, to be bound by all of the provisions of the “chapter”, those relating to the burdens as well as those relating to benefits. Under these views we must conclude that the employer, under the circumstances of this case, upon electing to become a subscriber under the act, elected to accept the obligations and burdens of the act as well as the benefits and protection thereof. It, in effect, waived any defense created by the release or settlement in so far as it affected any claims made under the act. The employer contends that the employee here would receive double compensation for second stage silicosis, since he received the $1,000.00 in the compromise settlement and will receive the $1,600.00 provided by the act at the time of the filing of the claim. It should be pointed out, however, that the release itself purports to release “all manner of * * * claims * * * for * * * injuries *' * *”, and not merely the silicosis claim. It must be remembered also that at the time of the settlement the employer was a nonsubscriber and that its liability was not limited to the amount provided by the statute. It could not then claim the protection and benefits given thereunder to a subscribing employer. Its liability at the time had nothing to do with liability fixed by the act, the amount of its liability was limited only by the principle [352] of law that verdicts and judgments cannot stand if unreasonable or excessive. Moreover, the claim here is against the compensation fund, and not directly against the employer. Nothing herein is intended to be construed as affecting the validity of a release or to limit the rights of an employer or an employee to contract concerning any such liability to which the act is not applicable. Contracts prohibited by this “chapter” are declared to “be pro tanto void” only. For example, if the employer named herein should withdraw from the operation of the act the release could then be pleaded as a defense to any claim of the employee included in or covered by the release. The employer further contends that claimant is barred from recovery because of wilful self exposure as defined in the act, Code, 23-4-2, as amended. The only acts of claimant relied upon as constituting wilful self exposure are that he' remained in the employ of the defendant in the same kind of work after having executed the release and after knowledge of the fact that he had contracted silicosis, and after having been advised by physicians that such work would probably aggravate the silicotic condition or cause it to progress more certainly. It is not contended by the employer that the employee failed to use all known reasonable precautions or that he refused to comply with any protective measures set up or suggested by the employer. We are of the opinion that these facts do not constitute wilful self exposure. Moreover, all these facts were known to the defendant and it acquiesced in the conduct of the claimant by continuing, after the settlement, to employ him in the same kind of work. Caldwell v. Appeal Board, 117 W. Va. 706, 158 S. E. 122; McEwan v. Compensation Commissioner, 123 W. Va. 310, 14 S. E. 2d 194. The order of the Workmen’s Compensation Appeal Board should be reversed, and the order of the State Compensation Commissioner should be reinstated. Reversed and remanded.