166 S.E. 282 | W. Va. | 1932
On September 9, 1927, Elmer Reed's leg was crushed below the knee while working as a brakeman on a trip of cars in a mine of a subscriber to the Workmen's Compensation Fund. Amputation was first made at the knee joint, but later it became necessary (from sluffing of the skin) to amputate four inches above the knee, which was done. He was awarded compensation for a 45% disability November 5, 1927, and paid the balance of his compensation in a lump sum on May 7, 1929, and executed a release of all claims against the compensation fund and commissioner resulting from his injury. On November 7, 1929, he advised the commissioner, through his attorney, that he had been paid a 45% disability but was entitled to a 50% disability under the statute, and was answered that 45% was the maximum that had been paid in like cases. Then, on January 15, 1931, claimant again wrote the commissioner asking for payment on the basis of a 50% disability, and was answered that he could not be awarded *525
a 50% disability unless the amputation was made into the middle third a considerable way, nor a 55% disability until the amputation was up near the hip, and further payment was denied. On May 17, 1932, counsel again insisted on an allowance for 5% more disability and was advised that claimant had been fully compensated. Formal objection was filed to this ruling, and this petition in mandamus promptly followed, praying that the commissioner be directed to pay the additional 5% claimed. The commissioner's answer to the petition admits the facts stated as true, and relies on the receipt for the lump sum as a discharge from further compensation; and relies further upon the fact that claimant lost only a part of his thigh (four inches above the knee) and that 45% for the loss of a leg is all that the statute allows in such cases. The subscriber to the fund (the employer) interposed a demurrer to the petition, and argues that the writ should be denied because relator did not object in writing within ten days after receipt of notice of the lump sum order of May 23, 1929, as provided in chapter 23, article 5, section 1 of the Code of 1931. This point is not well taken, because the "objection within ten days" applies only to cases where the award goes to the basis of the claimant's right to compensation, on the ground that the injury was self-inflicted, or not received in the course of and resulting from the employment, or upon any other ground going to the basis of the claim. The award did not go to the basis of claimant's right to compensation. The facts are undisputed and the correct percentage of allowance alone is involved. The commissioner has decided that amputation of the thigh four inches above the knee entitled the claimant to a 45% disability. The further point is raised that no appeal was taken within ninety days after notice of the final decision. None would lie, for the same reason that notice of objection was not necessary. The so-called appeal provided for in Code
We now come to the merits. The statute, Code
We award the writ for the payment of the 5% disability prayed for.
Writ awarded. *529