Haney v. State Compensation Commissioner

Given, Judge: The State Compensation Commissioner granted claimant, Claude E. Haney, an eighty per cent permanent partial disability award, on the 6th day of February, 1947, which award was payable in three hundred and twenty weekly payments. Had the payments been made in the usual manner, the last payment would have been made on September 20, 1951. The claimant, however, on August 25, 1949, pursuant to the provisions of Code, 23-4-17, as amended, petitioned the commissioner for commutation of periodical benefits, and the commissioner awarded claimant a lump sum settlement, the amount of [304] which was paid to him on September 30, 1949. On January 23, 1952, claimant petitioned the commissioner for a reopening of his claim. The commissioner reopened the claim and, after full hearing, granted claimant benefits for total and permanent disability. The Workmen’s Compensation Appeal Board affirmed. The employer objected to the reopening of the claim, upon the theory that the petition for reopening had not been filed with the commissioner within one year from the date of the “last payment”, made under the prior award, as required by Code, 23-4-16. It will be noticed that the petition for reopening was filed within one year from the date the “last payment” would have been made, had the periodical payments of the eighty per cent award been made in the usual course, but more than one year subsequent to the date of the payment of the amount of the lump sum settlement. Code, 23-4-16, as amended, provides time limitations as to the filing of such petitions and, in so far as pertinent, reads: “The power and jurisdiction of the commissioner over each case shall be continuing and he may from time to time, after due notice to the employer, make such modifications or changes with respect to former findings or orders as may be justified: Provided, however, that no further award may be made in fatal cases arising after March seventh, one thousand nine hundred twenty-nine, except within two years after the death of the employee, or, in case of nonfatal injuries, on and after March seventh, one thousand nine hundred twenty-nine, except within three years after payments for temporary disability shall have ceased or within one year after the commissioner shall have made the last payment in any permanent disability case: * * Section 39 of Chapter 10 of the Acts of the Legislature of 1913, the act creating the workmen’s compensation fund, provided that “any employe or dependent”, to be entitled to compensation under the act, must file an application “in due form within six months from and after [305] the date of injury or death, as the óase may be. * * *.” The Acts of the Legislature of 1915, Regular Session, Chapter 9, Section 39, amended that provision so as to require that application be made “within six months from and after the date of injury or death, as the case may be, and all proofs of dependency in fatal cases must be filed with the commissioner within nine months from and after the'date of death. * * *.” The Acts of the Legislature of 1929, Regular Session, Chapter 71, Section 40, after providing that the jurisdiction of the commissioner should be continuing, inserted the following proviso : “ * * * provided, no further award may be made except, within one year after death of employee in fatal cases, or, except in case of non-fatal injuries within two years after payments for temporary disability shall have ceased and within one year after the commissioner shall have made the last payment in any permanent disability case.” The Acts of the Legislature of 1935, Regular Session, Chapter 78, Article 4, Section 16, amended the section, the only pertinent change being the extension of the time for filing petitions for reopening of non-fatal cases from two to three years “after payments for temporary disability shall have ceased.” The section of the Code was again amended by Acts of the Legislature, in 1939, by Chapter 137, Article 4, Section 16; again in 1945, by Chapter 131, Article 4, Section 16; and again in 1949, by Chapter 136, Article 4, Section 16. Neither the Act of 1939, the Act of 1945, nor the Act of 1949, made any change in the time for the filing of petitions for reopening cases wherein permanent disability awards had been made. From the course of this legislation, dealing with time limitations for filing petitions before the commissioner, as well as from the language used in the several acts, we think it definitely appears that the Legislature has intended, by the several acts, to provide limits as to the time for the filing of such petition in every type of case wherein a reopening may be had. It also appears that from the time of the enactment of the provision first [306] restricting the time in which petitions could be filed, the Legislature has evinced an intention to liberalize or enlarge such time periods, rather than restrict or shorten them. In the Act of 1915 the time in which dependents could file petitions was increased from six months to nine months. In the 1929 Act the time for filing petitions for reopening of claims in fatal cases was fixed at one year, in non-fatal cases at two years, and in permanent disability cases at one year. The 1935 Act extended the time for filing such petitions in non-fatal cases from two years to three years. Petitioner here argues that where periodical benefits are commuted, and payments therefor made to the employee in one sum, as provided in Code, 23-4-17, as amended, the time from which the one year limitation begins to run is the date of payment of that sum, not the date the last periodical payment would have been made had payments been made in the usual course. We think, however, that Code, 23-4-17, relating only to commutation of periodical benefits, does not have the effect of controlling the period of limitation, as contended for by petitioner, and that the one year limitation should begin as of the date that the last periodical payment would have been made had payments been made in the usual course. This, apparently, is the view taken by the State Compensation Commissioner and the Workmen’s Compensation Appeal Board. We believe this view is necessitated by numerous holdings of this Court requiring construction of the provisions of .the Act so that it will accord with the benign purposes thereof. See Pannell v. Commissioner, 126 W. Va. 725, 30 S. E. 2d 129; Poccardi v. Commissioner, 82 W. Va. 497, 96 S. E. 790. A holding to the contrary would, in cases where periodical payments are commuted, have the effect of shortening fhe period of time allowed the employee to reopen such a claim, shorten the time in which the employer could present evidence as to complete or maximum recovery, and place in the commissioner the power to fix a date for the commencement of the running of the time [307] limitation. We think the Legislature intended no such results. No decision of this Court is cited, and we find none, discussing the precise point involved. Counsel for petitioner rely upon cases like Barnhart v. Commissioner, 128 W. Va. 29, 35 S. E. 2d 686; Holder v. Commissioner, 112 W. Va. 637, 166 S. E. 365; and Long Flame Coal Company v. Commissioner, 111 W. Va. 409, 163 S. E. 16. The question involved in the Barnhart case related to the method of computing time, where an act is required to be performed within a certain period. We can not see that the holding has any relation to the construction of the pertinent statute. The Holder case simply holds that “where timely action is mandatory under the statute”, neglect of counsel will not excuse delay. The Long Flame Coal Company case points out that “where the death of the employee occurs more than one year from the date of injury”, it is then immaterial whether the employee died one day or four years after expiration of the one year limitation, in determining whether the petition was timely filed. Being of the opinion that the order of the Workmen’s Compensation Appeal Board, affirming the holding of the State Compensation Commissioner, is correct, it must be affirmed. Affirmed.