152 W. Va. 781 | W. Va. | 1969
Lead Opinion
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
“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
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
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,
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.
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
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.
Dissenting Opinion
dissenting:
It is with deference that I dissent from the holding of the Court in this case. It is my opinion that the majority has simplified a complex question by determining that this language of Code, 23-4-6a, “whether or not capacity for work is or has been impaired by such silicosis;” is clear and unambiguous, disregarding all other provisions of the workmen’s compensation law, and holding that this claimant is eligible for an award for first stage silicosis even though he is receiving benefits from the fund under a total permanent or fife award from a former employer.
Prior to 1961 the first paragraph of Section 6a read as follows: “An employee shall, for the purpose hereof, 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; (2) In the second stage when it is found by the commissioner that definite and specific physical signs of silicosis are present, and that capacity for work is or has been impaired by that disease; (3) In the third stage when it is found by the commissioner that the employee has silicosis resulting in total permanent disability, whether or not accompanied by tuberculosis of the lungs.” It will be noted that the pertinent provision with reference to first stage silicosis was not changed by the general revision of the section in 1961. Prior to the amendment there were three stages of silicosis and in the present law which governs the instant case there are only two stages; that is, first stage and advanced stage. By Chapter 131, Acts of the Legislature, Regular Session, 1945, a new section was added to Chapter 23 (designated 23-3-la), which abolished the workmen’s compensation silicosis fund and provided for a transfer of its assets to the workmen’s compensation fund provided for in 23-3-1.
At the same session that the two funds were amalgamated Section 1 of Article 4, entitled disability and death benefits, was amended and thereafter contained the following pertinent language: “For the purposes of this chapter the terms ‘injury’ and ‘personal injury’ shall be extended to include silicosis and any other occupational disease as hereinafter defined, . . .” Also consistent with such changes is the following language added to 23-4-6a (b): “If the employee is suffering from silicosis in the advanced stage,
It is apparent why payment for first stage silicosis should remain in the same language as before these amendments inasmuch as an employee suffering from such a disease would be entitled to the $1,000 benefit even though his physical condition was not such that he had suffered a specific permanent partial disability. If his condition had advanced beyond first stage, then he would be rated as to permanent partial disability in the same manner as other personal injuries were theretofore and thereafter rated. The italicized language in the majority opinion, “whether or not capacity for work is or has been impaired by such silicosis”, as contained in 6a is merely a legislative definition of the condition in the lungs of a claimant and does not within itself require any payment. Reference is made in the majority opinion to what is called the Elk Creek case decided by the appeal board in 1956. It will be noted that at that time the statute provided in practically identical language to the present provision relating to first stage silicosis that a claimant suffering from second stage silicosis would be entitled to an award of $2,000. The claimant in that case who was suffering from a. personal
This Court has consistently held that one of the established rules of construction of statutes is that they shall be rationally construed; that when the language of a statute permits a construction which would lead to an unreasonable result it should be avoided. State ex rel. Winkler v. Co. Ct. of Kanawha County, 105 W. Va. 589, 148 S. E. 674. The following is a quotation from 17 M. J., Statutes, § 54, (1951):
“. . . And it is the court’s duty so to construe a statute as to avoid absurd and inconsistent re-*792 suits, if possible. Where a particular construction of a statute would result in an absurdity, some other reasonable construction, which will not produce such absurdity, will be made. If a statute is susceptible of two constructions, that one should be adopted which gives it a sensible operation. So a construction of a statute which makes its meaning intelligible and plain is to be adopted where, when any other meaning is attempted to be given to the statute, the statute becomes inconsistent, confused, and unintelligible.
“A statute may be construed contrary to its literal meaning when a literal construction would result in an absurdity or inconsistency, and the words are susceptible of another construction which will carry out the manifest intention of the legislature. The intention of the lawmakers must be gathered from the words used, but unreasonable or absurd results must not be reached by too strict adherence to literal interpretation. Thus, where the language is ambiguous, the courts will give to it that construction which is more reasonable.” (Emphasis supplied.)
The decisions in other jurisdictions would appear to be unanimously contra to the holding of the Court in this case. Under the New York statute, severe facial disfigurement is compensable upon the ground that it might deter employers from accepting such a person as an employee. In Clark v. Hayes, 202 N. Y. S. 453, affirmed 238 N. Y. S. 553, 144 N. E. 888, the New York court held that where an award had been made for total permanent disability under the workmen’s compensation law of that state an additional award for facial disfigurement could not be made, the reasoning being that total permanent disability is the maximum award that can be made to a claimant in a workmen’s compensation case. The following statement is from the opinion of Rupert v. Todd Shipyards, 239 F. 2d 273 (9th Cir., 1956):
“As a compensation statute imposing upon the employer liability regardless of fault, the Act should generally be interpreted as providing for an award intended to compensate for loss of earning capacity. Any interpretation permitting an award of compensation for facial disfigurement to*793 be super-imposed upon an award for ‘permanent total disability’ which presupposes a permanent loss of all earning capacity, would run counter to the manifest spirit and purpose of the enactment.”
This succinct statement is taken from the opinion of O’Brian v. Albert A. Albrecht Co., 206 Mich. 101, 177 N. W. 601: “It must be obvious that a man cannot be more than totally disabled. It should be equally obvious that he cannot receive compensation for more than total disability.” It is my opinion that the decisions of this Court of Linville v. Commissioner, 112 W. Va. 522, 165 S. E. 803, and Oliver v. Commissioner, 152 W. Va. 478, 164 S. E. 2d 582 (1968) are, in spirit at least in harmony with the decisions of other jurisdictions upon this question.
This is the single syllabus point in the Linville case: “Under the Workmen’s Compensation Law, where a workman has received as compensation for an injury to his foot the maximum statutory allowance for the total loss of a foot, he is not entitled to further compensation for a subsequent injury to the same foot.” The concluding paragraph of the opinion expressing the views of a unanimous court follows: “As the petitioner was paid the maximum statutory allowance for the entire loss of a foot (and the disability therefrom) as compensation for the first injury, the ruling of the commissioner must be affirmed. Otherwise, the petitioner would be compensated twice for the same loss, a sequence not contemplated by the Workmen’s Compensation Law.” The opinion ends with the citation of cases from other jurisdictions. The decision of the Court in this case is in irreconcilable conflict with the logical reasoning in the Linville case as well as that contained in the very recent, 1968, unanimous decision of this Court in the Oliver case. The entire hypothesis upon which workmen’s compensation laws are predicated is that an injured employee shall receive a monetary payment consistent with the disability, prospective as well as present, which he has suffered. As a corollary to that principle is the postulate that usually, though not always, the award shall be compatible with the loss of earning power of the injured workman. The exception is the specific awards for
I would reverse the order of the workmen’s compensation appeal board of September 4, 1968, and direct that the order of the workmen’s compensation commissioner of April 24, 1968, be reinstated. I am authorized to state that Judge Calhoun concurs in the views expressed in this opinion.
