Cummins v. State Workmen's Compensation Commissioner

Haymond, President: This claim of Warren J. Cummins against his employer, The Carbon Fuel Company, a corporation, for first stage silicosis compensation, is here on appeal by the employer from a final order of the State Workmen’s Compensation Appeal Board of September 4, 1968, which reversed an order of the State Workmen’s Compensation Commissioner of April 24, 1968 which dismissed the claim of Cummins for first stage silicosis benefits on the ground that he had previously been granted a final award of total permanent disability, such award having been made by order of the commissioner on October 24, 1967. The question for decision on this appeal is whether the claimant who had previously been awarded total permanent disability compensation for compensable personal injuries as provided by Section 6, Article 4, Chapter 23, Code, 1931, as amended, which were unrelated to his claim for first stage silicosis, may also be given an award of compensation for first stage silicosis. The material facts are not disputed and the question for decision is a question of law. Although this identical question has been before the appeal board in two prior cases in which an award of first stage silicosis compensation to a claimant who had previously been awarded total permanent disability compensation for injuries sustained by him was upheld by the board and from which ruling no appeal was taken to this Court, the question here involved has not been determined by this Court and in that respect it may be said that this case is one of first impression under the workmen’s compensation law of this State. In its opinion in connection with its reversal of the order of the commissioner dismissing the claim of Cummins for — 783 — compensation for first stage silicosis, the board referred to the two prior cases involving first stage silicosis and another case known as the Elk Creek case, involving a claim for second stage silicosis by a claimant who had been awarded total permanent disability compensation and said, in part: “The same point is here involved as in Picklesimer, Claim No. 62-41523, Appeal No. 6674, at the February, 1964, Session of this Board, and in Cline, No. 66-50100, Appeal No. 7455, at the April, 1968, Session. In both cases we decided that claimants could possibly draw total permanent disability and still be awarded first stage silicosis benefits under the West Virginia statutes as they presently exist, and that if any change is proper it must necessarily come from the Legislature. “We can see no reason to reverse our opinion at this time. We considered the Elk Creek case before making the prior ruling. Employer’s counsel states that the Supreme Court of Appeals refused an application for appeal in the Elk Creek case. This Board is still of opinion that if the statute is to be construed differently than its language indicates it should be done by the Supreme Court of Appeals. Absent such a ruling, we reiterate that it is a matter for legislative attention.” The Elk Creek case mentioned in the opinion of the board is styled Elk Creek Coal Company v. State Compensation Commissioner, decided in 1956, and related to a claim for second stage silicosis of the employee Simpson who had 'been awarded total permanent disability for compensable injuries and was granted a lump sum award of $2,000.00 for what at that time was classified as second stage silicosis, which under the present statute is classified as advanced silicosis. The award for second stage silicosis was set aside by the appeal board on the ground that the claimant had been previously given a total permanent disability award for an injury to his back. This Court refused to grant an appeal from the order of the board. The Picklesimer and Cline cases, involving first stage silicosis, and the Elk Creek case, involving second stage, now — 784 — advanced stage, silicosis make clear the distinction which the statute makes between first stage silicosis and second stage, now classified as advanced stage, silicosis. The employer assigns as error, and vigorously asserts, that the appeal board was clearly wrong in reversing the order of the commissioner, and that inasmuch as the claimant had been granted a final award of total permanent disability carrying payments for fife for injuries sustained April 23, 1965, the subsequent claim for silicosis benefits can not be maintained and was properly dismissed by the commissioner. On the contrary the claimant insists that his claim for compensation for first stage silicosis is unrelated to his award of total permanent disability benefits for injuries previously suffered by him; and that under the provisions of Section 6, Article 4, Chapter 23, Code, 1931, as amended, which deal with compensation to an employee for personal injury other than first stage silicosis, and the provisions of Section 6a, Article 4, Chapter 23, Code, 1931, as amended, defining the stages of silicosis, the claimant may be given an award of compensation for first stage silicosis even though he has received a prior award of total permanent disability under Section 6, Article 4, Chapter 23, Code, 1931, as amended, for personal injuries received by him which are unrelated to first stage silicosis. Section 6a expressly provides that an employee shall, for such purpose1, be deemed to have silicosis: (1) In the first stage when it is found by the commissioner that the earliest detectable specific signs of silicosis are present, “whether or not capacity for work is or has been impaired by such silicosis;” and that where compensation for silicosis is due an employee under such provision, he shall, if suffering from silicosis in the first stage, receive one thousand dollars as compensation, which shall be a final payment and operate as a full release by the employee for compensation and for any claim against the employer that the employee may subsequently have for silicosis. The provision of Section 6, Article 4, Chapter 23, Code, 1931, as amended, which excludes first stage silicosis but — 785 — not silicosis in any other stage from the compensation provided by that section for personal injuries sustained by an employee, is plain and unambiguous and must be recognized and given effect by the Court. In many cases this Court has held that when a statute is clear and unambiguous and the legislative intent is plain the statute should not be interpreted by the court and in such case it is the duty of the court not to construe but to apply the statute. Jarrell v. State Workmen’s Compensation Commissioner, 152 W. Va. 418, 163 S. E. 2d 798; State ex rel. Riffle v. City of Clarksburg, 152 W. Va. 317, 162 S. E. 2d 181; Owens-Illinois Glass Company v. Battle, 151 W. Va. 655, 154 S. E. 2d 854; J. D. Moore, Inc. v. Hardesty, 147 W. Va. 611, 129 S. E. 2d 722; Terry v. State Compensation Commissioner, 147 . . Va. 529, 129 S. E. 2d 529, and the numerous cases cited in the opinion in the Terry case. Moreover, the Legislature in dealing with silicosis in the advanced stage makes specific reference to Section 6, Arties 4, Chapter 23, Code, 1931, as amended, and provides that if the employee is suffering from silicosis in the advanced stage, the percentage of permanent disability shall be cietermined by the commissioner in accordance with the .hats in the case and with the advice and recommendation of the silicosis medical board and that compensation for silicosis in the advanced stage shall be paid in the same manner and at the same rate as is provided for permanent disability under the various subdivisions of Section 6, Article 4, Chapter 23, Code, 1931, as amended, which deals with compensation for personal injuries “other than first stage silicosis.” From these statutory provisions it is clear that the Legislature has made the ailment of first stage silicosis compensable at the rate of one thousand dollars independently of the award of compensation for personal injuries and silicosis in the advanced stage. It is manifest that silicosis in the first stage is excluded from the operation of Section 6 of the statute and that the legislative intent is that compensation for first stage silicosis can be awarded independently of and in addition to any award of permanent disability, either partial or total, — 786 — for the personal injuries covered by the provisions of Section 6. Though upon a casual view it may seem that the workmen’s compensation laws do not permit any person who has been awarded total permanent disability under the provisions of Section 6 to receive any further or additional compensation, upon careful consideration of the applicable statutory provisions it becomes clear that first stage silicosis is not included in the personal injuries for which compensation is allowable and determined under the provisions of Section 6, is not regarded as a physical condition or personal injury which necessarily lessens or impairs the employee’s capacity to work, and that a claimant who has been awarded permanent disability, either partial or total, under Section 6, may also be entitled to an award of first stage silicosis by virtue of the exclusionary provision expressly set forth in the first paragraph of Section 6 and which has been previously quoted in this opinion. A total permanent disability award does not include or cover first stage silicosis and a first stage silicosis award does not constitute an additional award for either permanent partial disability or total permanent disability. The distinction between first stage silicosis and any degree of advanced silicosis is that first stage silicosis is not necessarily disabling but advanced stage silicosis is disabling and is dealt with the same as a disabling injury. From the foregoing it is clear that notwithstanding the award of total permanent disability previously granted the claimant he may, under the statute and solely because of this exceptional exclusionary provision, obtain an award for first stage silicosis in the amount of one thousand dollars as provided in Section 6a of the statute. This Court has said in numerous cases that the right to workmen’s compensation is wholly statutory, that it is not based on the common law, that the statutes are sui generis and controlling, and that the rights, remedies and procedures provided by the statutes are exclusive. See Oliver v. State Workmen’s Compensation Commissioner, 152 W. — 787 — Va. 478, 164 S. E. 2d 582; Haines v. Workmen’s Compensation Commissioner, 151 W. Va. 152, 150 S. E. 2d 883; Dunlap v. State Compensation Director, 149 W. Va. 266, 140 S. E. 2d 448; Blevins v. State Compensation Commissioner, 127 W. Va. 481, 33 S. E. 2d 408; Young v. State Compensation Commissioner, 121 W. Va. 126, 3 S. E. 2d 517. If the exception in favor of a claimant for first stage silicosis should prove sufficiently discriminatory or unsatisfactory to warrant a change or modification of the present applicable statute, such change or modification as stated by the appeal board must be made by the Legislature and not by this Court by any tortuous construction of such statute. Until there is such legislative action this Court must enforce and give effect to the present applicable provisions of the statute. This Court, therefore, holds that by virtue of the provision “other than first-stage silicosis” in Section 6, Article 4, Chapter 23, Code, 1931, as amended, and the provisions of Section 6a of the same article and chapter dealing with first stage silicosis that “If the employee is suffering from silicosis in the first stage, the employee shall receive one thousand dollars as compensation in full for silicosis that he has sustained as a result of and in the course of his employment,” a claimant for compensation for first stage silicosis who has previously been awarded compensation for total permanent disability resulting from injury may also be awarded compensation for first stage silicosis and the award of such compensation, not being an award of compensation for disability, does not constitute an additional award of compensation for permanent disability within the meaning of Section 6 of the statute. The employer cites and relies upon numerous cases which hold that an employee who has been awarded total permanent disability may not subsequently be granted an additional disability award. In all those cases, however,, the claim for additional disability compensation was for personal injuries to the same body area or member or of the same general character as those which had been covered by the prior total permanent disability award and in that — 788 — respect those cases are distinguishable from this case and do not control the decision in the instant proceeding. This distinction between this case and the cases cited by the employer clearly appears from the decisions of this Court in Linville v. State Compensation Commissioner, 112 W. Va. 522, 165 S. E. 803, and in Oliver v. State Workmen’s Compensation Commissioner, 152 W. Va. 478, 164 S. E. 2d 582. In the Linville case the claimant had previously received and had been paid compensation for a crushing ’injury to his right ankle and his subsequent claim for ■'injuries to the same ankle was denied for the reason that he had been paid the maximum statutory allowance for the entire loss of a foot as compensation for his first injury. In the Oliver case the claimant had sustained an injury to his leg and had been granted the maximum statutory award for its loss and it was held that he could receive no further award for injury to his leg. No award for silicosis to a claimant who had been awarded permanent disability for an unrelated injury was involved in either case. The final order of the appeal board reversing the order of the commissioner dismissing the claim for first stage silicosis compensation is affirmed and this claim is remanded to the commissioner for such further proceedings as may be proper in accordance with the views expressed in this opinion. Affirmed; claim remanded with directions.