Webb v. State Compensation Commissioner

Given, Judge: In this appeal from an order of the Workmen’s Compensation Appeal Board, denying benefits to a dependent claimant, we have for determination a question as to whether a widow of an employee, who was granted an award for silicosis in the third stage, under the 1945 Act of the Legislature, Chapter 131, the employee not having died until after the effective date of the 1949 Amendment to that Act, may recover benefits, notwithstanding the [22] employee did not suffer from silicosis in the third stage, as defined by that Act. Before an award could have been made for silicosis, in the third stage, under the 1945 Act, it was necessary that the commissioner find that the employee was suffering from silicosis, and that the disease of silicosis be accompanied “by active tuberculosis of the lungs”. The requirement that silicosis be accompanied by tuberculosis was eliminated by the 1949 Amendment. In the instant case the employee was awarded benefits on the 8th day of August, 1947, for silicosis in the third stage, and received benefits thereunder until the time of his death, April 3, 1951. The Silicosis Medical Board determined that the employee was suffering from “advanced silicosis with super-imposed tuberculosis.” The commissioner confirmed that finding and “awarded compensation on a total permanent disability basis for silicosis in its third stage * * *.” Subsequent to the filing of the widow’s claim, an autopsy was performed upon the body of the employee. The findings of the pathologist who performed the autopsy established that the employee died of advanced silicosis, unaccompanied by tuberculosis. The widow was denied dependent benefits on the theory that the 1945 Act controlled the granting thereof, and that the Act permitted the payment of such benefits only in the event the employee died of silicosis accompanied by tuberculosis. The pertinent language of the 1945 Act reads: “* * * (d) If the employee dies from silicosis within six years from the date of his last injurious exposure to silicon dioxide dust in harmful quantities and the commissioner determines that he was suffering from silicosis in the third stage, the benefits shall be in the amounts and to the persons provided for in section ten of this article; as to such benefits sections eleven to fourteen, inclusive, of this article shall apply.” The pertinent language of the 1949 Amendment, Chapter 136, now part of Code, 23-4-6a, reads: “* * * (d) If [23] the employee dies from silicosis within six years from the date of his last injurious exposure to silicon dioxide dust in harmful quantities and the commissioner has determined at the time of the original award that he was suffering from silicosis in the third stage, the benefits shall be in the amounts and to the persons provided for in section ten of this article; and as to such benefits sections eleven to fourteen inclusive, of this article shall apply.” It will be noticed that the language used in the 1945 Act and the 1949 Amendment is the same, except that the amendment substitutes the words “and the commissioner has determined at the time of the original award that he [the employee] was suffering from silicosis in the third stage”, for the words “and the commissioner determines that he [the employee] was suffering from silcosis in the third stage”. The change in the wording effected by the amendment is, we think, very significant. By the 1945 Act the commissioner, in the consideration of the claim of a dependent, was authorized to determine whether the employee had suffered silicosis in the third stage, while under the 1949 Amendment the question to be determined by the commissioner is whether there was a finding of third stage silicosis “at the time of the original award”. The change effected by the amendment precludes the relitigation of the question, in a proceeding of a dependent claimant, as to whether the employee suffered silicosis in the third stage. No new right or claim is created by the amendment. The employer is merely prevented from relitigating a question which was, in a proper proceeding, previously decided against him. Appellee contends, however, that to permit recovery by claimant would amount to giving retrospective effect to the amendment, and that the statute in effect at the time of the injury to the employee controls the right of a dependent claimant. Reliance is had upon Hardin v. Appeal Board, 118 W. Va. 198, 189 S. E. 670; Greer v. Commissioner, 123 W. Va. 270, 15 S. E. 2d 175; Lester [24] v. Commissioner, 123 W. Va. 516, 16 S. E. 2d 920; and Consentina v. Commissioner, 127 W. Va. 67, 31 S. E. 2d 499. In the Hardin case, at the time of the injury to the employee, a statute permitted payment of benefits to dependents only in the event the employee died within one year after the injury. An amendment to the statute, which became effective before the employee died, but more than one year after the date of injury, permitted the payment of dependent benefits if death of the employee resulted within the period of six years from the date of the injury. In the Hardin case the time in which the dependent could have claimed benefits under the statute in force at the time of the injury had expired before the amendment became effective. To have permitted recovery by the dependent would have, in effect, permitted recovery as to a right which accrued before the enactment of the statute under which recovery was sought, and which had been barred by the statute previously in force. Admittedly, broad language used in the Hardin case, and other cases relied upon by appellee, lends support to the position of appellee. We think, however, that the actual holdings of such cases amount to no more than the application of the well recognized rule relating to construction of statutory provisions to the effect that “words of a statute ought not to have a retrospective operation unless they are so clear, strong and imperative that no other meaning can be annexed to them or unless the intention of the legislature cannot be otherwise defined.” 17 M. J., Statutes, Section 73. Applying the rule in the instant case, we can find no logical reasoning which would indicate an intention on the part of the Legislature to limit the application of the 1949 Amendment to claims arising subsequent to its effective date. Had the Legislature so intended it would not have used such words as “commissioner has determined at the time of the original award” in the amendment. Moreover, should the construction contended for by appellee be given the amendment, no change whatever in the [25] 1945 Act would have been effected by the amendment. The procedure contended for by appellee was clearly authorized by the 1945 Act. In Gibson v. Compensation Commissioner, 127 W. Va. 97, 31 S. E. 2d 555, the employee had been denied compensation “on the basis that no partial permanent disability had resulted from the injury received by the decedent”. In considering claims of dependents, this Court held, in Point 1, syllabus, “A claim for death benefits, provided for by Code, 23-4-10, is separate and distinct from an injured employee’s claim for disability benefits.”; and in Point 2, syllabus, “Where an employee, injured in the course of his employment, is denied compensation during his lifetime on the ground that disability is not the result of said injury, the State Compensation Commissioner has jurisdiction to consider a claim, timely filed, for death benefits after the death of the employee and may determine whether the personal injury received by the employee caused his death.” We think the principle applied in the Gibson case controls in the instant case. The claim being separate and distinct from the claim of the employee, and not having been barred by any statute, and no accrued or vested rights being affected, recovery should be allowed. Reversed and remanded.