*1 Antonio FUCILLO
WORKERS’ COMPENSATION COM- and Consolidation
MISSIONER Company.
Coal 18527.
No.
Oct.
Dissenting Opinion Dec. Fucillo, Fairmont, Fu-
Rocco Antonio cillo.
Furbee, Amos, Critchfield, Billy Webb & Alkins, Morgantown, B. for Consol. Coal Co.
NEELY, Justice: Court 771, 296 (1982), limitations estab lished for Act are under Workers’ procedural. Virginia legislature Act to time limitations are adherence to the time limitations is a condi- *2 596 protest W.Vа.Code, right object, ap- or order of the Commissioner and
tion of the to [1986], provides appeal 23-5-4 to peal. Because of the 1986 Workers’ Com- which legislation, pensation limit our this we Court.1 Bailey concerning in time limitations to 1986, legislature In the added a section 7, March those cases before to the to certain limited W.Va.Code allow Workers’ In Bailey, we examined Act’s time limita- the effect of the Code, the time provides: limitations. W.Va. jurisdiction Notwithstanding tions on the that the the the fact time Appeal pеriods objections, protests, the this Court to forth for and set appeals. or and to or consider com- board, jurisdiction- nature of Because remedial the are al, periods may we held such be extended or procedural upon application party the time limitations were and cused of either cases, not, objec- рeriod appli- did in all bar an of time to the tion, brought protest period by requesting or after the cable an extension Id,., expired. applicable period showing gоod of such time 774-775, neglect, accompanied 170 at S.E.2d or by W.Va. 296 at 905. excusable the conclusion, 1, Syllabus objection, petition. in protest, Our stated Point or Id., Bailey, exerсising was that limitations such discretion the commis- “[t]ime sioner, court, the Workmen’s Act or as the case procedural, be, are may appli- and shall consider the whether prior opinions contrary all represented to the are over- cant by was counsel and guidance ruled.” We then found proper when whether notice was to waive the time limits in the Virgi- actually by applicant received the or the Id., nia Rules Civil applicant’s representative. Procedure. 775, at W.Va. at 296 S.E.2d 905. This consistently have We landmark allowed unambiguous, accept when a we statute Appeal Board and the Commissioner some plain meaning by Syllabus as illustrated leeway justice. do to substantial 1, Compensa Point Tanner v. Workers’ 1986, legislature tion W.Va. 345 S.E.2d (1986): amended Workers’ Act 29 “ jurisdic- to that time limitations language ‘Where the of a statue is right object, tional to protest ambiguity plain clеar and without appeal is or conditioned on adherence to the meaning accepted to be without resort following The language limits. was interpretation.’ rulеs of Sylla to the W.Va.Code, inserted Elder, [1986]: bus Point State v. (1968).” the notice of filed with- [U]nless such no shall ex rel. Underwood v. Sil allowed, verstein, be such time limitation being hereby declared to be a condition of the
right such appeal jurisdic- to and hence plain meaning of the Workers’ Com- tional. ... pensation as Act language Similar was also added to both strict adherence to the time limitations as a right protest object, condition of to or finding appeal. unambiguous to a or The clear and lan- following following languagе language In 1986 was inserted in was inserted W. Va. 23-5-1 [1986]: [1986]: petition for review filed within [Ujnless [U]nless objection is filed within such thir- thirty-day period, such no or such re- ty-day period, finding such or action shall be final, view being such limitation forever such time limitation here- hereby declared right to be a condition of the declared be a condition of the litigate finding juris- or or review and henсe action dictional. guage statutory provisions of these re- days Board within 30 legislative ability flects a intent to limit the required by Code, 23-5-3 Fi W. Va. [1986]. object, protest nally on 8 Decеmber Mr. Fucillo filed except exceptions.2 limits for narrow days Board—443 *3 after the Commissioner’s final order. The in this case calls on us to Appeal Board appeal by denied his order address for the first time the effect of the dated 4 February 1988. On to this 1986 Workers’ Act amend- argues Mr. Fucillo delay that his ments on our in Bailey concerning filing his Bailey excusable under untimely appeal. present case, In the and that clearly Commissioner, final order dated 23 wrong. noted, As we have September 1986, because of the denied Antoniо Fucillo’s legislature’s claim amendments to the Workers’ occupational for benefits for hearing loss. our acknowledged Bailey Mr. Fucillo that he limited to those recеived notice of the cases Commissioner’s order before 7 September March 1986. dated 23 1986.3 Because this Mr. Fucillo in- case arose on 23 September 1986, challenge tеnded to apply the Commissioner’s or- does not der by appeal. W.Va.Code, [1986] Mr. Fucillo’s untimely appeal. nent Board must be filed within thirty days appeal is filed within added] time limitatiоn no such be a condition any event, regardless sixty days after the date of the action notice of commissioner, complained of, and unless the notice of W.Va.Code, tice part: of aggrieved party the action that an directed to such shall be with the [1986] complained after within shall file a written hereby declared to of states, receipt notice, thirty [Emphasis of, or in in perti- of within days. no- which allows for tions to those received notice to file his thirty day period and consideration of his of causе Mr. Fucillo case is barred under the statute. The mer 5-1e quested cusable Fucillo failed to file within the additional good le [1986] apply cause or excusable The statutory neglect, requested within the next limits extensions of time limita in this case. requires any showing good certain narrow [1986], W.Va.Code, applicable period.4 thirty days previously quoted, prоvision, periods, thirty days. neglect extensions for cause or ex exceptions also does to be re after Va.W. 23-5- Mr. 23- Be he receiving
After notice of the of Mr. Fucillo’s claim and excuse cannot order, er’s final Mr. Fucillo failed to be considered. Legislature, Fucillo,
2. The title of the 1986 act acknowledged by Acts of notice was Mr. a Session, 1986, stated, Regular part, competent Ch. 171 individual. that it had the of: requirements showing good 4.The for a providing for certain restrictions of the com- neglect or excusable mission, commissioner, the workers’ com- 3, Bailey Compensa- supreme board and the Comm'r., tion (1982), appeals court of for failure to file cer- as follows: objections, аppeals; pro- tain notices and ... any future claim where claimant seeks to viding exceptions respect certain with to limit- expiration file after the of a rеopening of a claim or for limitations, append claimant his appeals permitting certain cases; a statement of reasons in affidavit form with procedurеs thereof in certain supporting appropriate, affidavits where compensation appeal board and its plaining delay, and the tribunal before jurisdiction, рrocedures appeals and the which the claimant seeks to be hears shall Virginia supreme court of decide on the basis of that statement whether and the time thеreof ... warranted; delay excuse of the a decision question 3. We do not subject may any address the appealed notice or on this like other adequacy receipt of notice in this case because issue in the case. above, For the forth reasons set the deci- Compensation Appeal sion of the Workers’ STATE Wеst Board is affirmed.
Affirmed. Mark Francis HANNA. Justice, McGRAW, dissenting. No. 17238. 23-5-1, I believe that W.Va.Code 23- §§ 5-3 Cum.Supp.) and 23-5-4 are un of West they
constitutional insofar make the filing objections, pro limitations for Feb. *4 tests and orders of the Commis jurisdictional.
sioner and the Compensation of the Workers’
Act was to claims employees remove
against employers negligently-caused injuries rigid
industrial and often
unwieldy procedures of courts of law and sys informal administrative
tem prompt fair resolution of such Lewis,
claims. See Meadows 172 W.Va. (1983); Mandolidis v. Industries, Inc.,
Elkins 161 W.Va. (1978); McVey
S.E.2d 907 Chesapeake & Co., Telephone
Potomac 103 W.Va. (1927); Ott,
claimants within comply only with such time limitations not express provisions
flies in the face of * contrary; deprives it such claimants of
any remedy negligent acts of their
employers process without due of law. Ac
cordingly, I would that Bailey hold v. State Commission
er, (1982)
remains force effect. * (1988 example, policy Vol.). Replacement For the stated § Workers’ W.Va.Code 23-1-15 prohibit Moreover, “to Act is repeatedly denial of recognized we have just injured or claims of deceased workmen or workers' statutes are to con- dependents their on technicalities” W.Va.Code liberally strued in favor of the claimant to effect Vol.). Replacement § 23-5-3a The stat- Hughes purposes the beneficent of the Act. See expressly ute relaxes common-law and procedure applicable rules of evidence and (1972); 156 W.Va. John- civil actions and each case to be inves- son v. State Workmen’s sioner, Commis- tigated "in such maneuvers ... is best calculated (1972); rights parties ascertain the substantial Ott, supra. Poccardi v. carry provisions and to chapter.” out the of this