# Fraga v. State Compensation Commissioner

> West Virginia Supreme Court · November 24, 1942 · 125 W. Va. 107

URL: https://www.frixlaw.com/law-library/cases/4004543

## Case

- **Full name:** Thomas Fraga v. State Compensation Commissioner Et Al.
- **Court:** West Virginia Supreme Court
- **Decided:** November 24, 1942
- **Citations:** 125 W. Va. 107; 23 S.E.2d 641; 1942 W. Va. LEXIS 18
- **Precedential status:** Published
- **Opinion:** Dissent by Kenna
- **Judges:** Fox, Kenna
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4004543

## Opinion text

Kenna, Judge,
dissenting:
I am of the opinion that under Section 5 of Chapter 79 of the Acts of 1935 (Michie’s 1937 Code, 23-6-5) it was the purpose of the Legislature to restrict the claims that would be considered for compensation due to silicosis to that class of persons (1) whose condition is due to the nature of the occupations in which they have been employed at any time within one year previous to such disease; and (2) whose claim is made within one year of the last exposure to silicon dioxide in harmful quantities, provided that compensation shall not be payable to persons who have not been exposed to silicon dioxide in harmful quantities in the same employment over a period of not less than .two years in this State. It seems clear to my mind that it was the legislative purpose to exclude all other persons as being ineligible to the class whose claims would be considered on the merits. Compensation for silicosis has barely entered upon its trial period with the hope that it may later be liberalized by the Legislature.
Section eleven of the act seems to require the Commissioner to “hear” all silicosis cases, and in each to file certain non-medical findings, including, but not restricted to, (a) whether employee was in fact employed by the employer “within one year prior to the filing of his claim; * * (c) The employments previous and subsequent to that out of which the injury upon which the
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claim is based arose, and the exposure connected therewith * * *; (f) Date of the last injurious exposure.
While that part of the act which defines the class of sufferers from silicosis who may have their claims considered on the merits by the Compensation Commissioner is rather unartfully drawn and does not conform in terminology to section eleven requiring the Commissioner’s non-medical findings, I am of the opinion that the sub-,, stance of the entire act shows quite clearly that it was the purpose of the Legislature to have the Commissioner, before referring silicosis cases to the Medical Board, to first examine the facts in order to ascertain whether the employment of the claimant had been of such a nature as would fall within the scope of his statutory power to consider. An illustrative legal analogy, I believe, would be the consideration of a demurrer to a bill of complaint by a trial chancellor before referring the cause to a commissioner in chancery. Referring a silicosis case to the Medical Board before passing upon the eligibility of the claimant would be similar to considering a demurrer to a bill of complaint after the commissioner in chancery had filed a lengthy report upon the merits. I do not believe that the Legislature intended that unnecessary risk of energy and time.
It is true that the expressly required non-medical findings of the Commissioner do not include a report by him concerning the two years’ exposure to silicon dioxide dust in harmful quantities in the same employment in this State, and that fact might be advanced against the theory that as a preliminary (non-medical) finding the Commissioner should ascertain whether the claimant belongs to the class made compensable by the fact without submitting that question to the Medical Board. In answer to that position, it may be stated that the expressly required non-medical findings of the Commissioner do cover the essentials prescribed by the body of the act as forming the class who may claim. However, the clause in question is not a part of the main provisions of the silicosis act.
It seems perfectly apparent to my mind that the Legislature’s purpose was to include in the Commissioner’s non-
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medical findings all elements that go to make up the definition of an eligible claimant under the main provisions of the silicosis act, and if that be true it necessarily follows that the terms of the proviso, the use of which is to qualify the provisions of the main act, would necessarily be considered by the Commissioner in reaching his non-medical conclusions. The Legislature has not stated what shall be exposure to silicon dioxide in harmful quantities, but I think it was necessarily its purpose to have the recovery of compensation governed by a recognized standard to be ascertained by the Commissioner, and not to permit each case to rest upon the peculiar susceptibility of the claimant and variant surroundings. Otherwise, the silicosis fund becomes an insurer without a defined risk. I think that the act charges the Commissioner with the responsibility, after proper investigation, to discover what constitutes to the average individual an exposure to silicon dioxide in harmful quantities and, by the recognized rule of inclusion and exclusion, if need be under the guidance of this Court, to reach a settled rule by the decided cases.
I think that to attempt in this connection a distinction between doubtful cases and clear cases, and to require the Commissioner to refer doubtful cases to the Medical Board and in so doing to risk the commission of an error of judgment, is going to fail to simplify and, indeed, to have a tendency to confuse the practice before the Compensation Commissioner. We must not lose sight of the fact that the Compensation Commissioner is an administrative officer, and that, as such, it is necessary that certain set standards for his official conduct should be established and maintained. He is not a court in any sense of the word, and therefore, his statutory authority should perhaps not be spoken of and treated as jurisdictional, for while he has, along with all statutory officers, certain necessarily implied powers, unlike courts, he has none that are inherent. There are a number of complications that will result from requiring the Commissioner to refer doubtful cases involving his power to act to the Medical Board, one being the fact that the Medical Board’s findings, unless excepted to within ten days, become final, and we thus
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will have an auxiliary agency passing upon the powers of the principal to act; and another the fact that that finding includes an examination of the place of employment that can be conducted only by a field force, which the Commissioner has and the Medical Board has not. In my judgment, the greatly desired expeditious treatment of compensation cases will be materially impeded if the elastic practice of courts of chancery is attempted to be applied.
In my opinion the Commissioner should first pass upon the question of whether the claimant belongs to the class of persons who are entitled to invoke the provisions of the act. If his conclusion is in the negative, the claimant’s remedy is by appeal to the Appeal Board. If the answer is in the affirmative, the next step is a reference to the Medical Board for the purpose of determining whether the claimant is suffering a disability due to silicosis and if so to what stage the disease has progressed and his proper class rating under the statute. Upon the incoming of their report, if not objected to, the Commissioner enters his final order based thereon and upon his own non-medical findings. If the report is objected to by either the employer or the employee, the Commissioner holds a hearing upon the questions thereby raised and either rejects or confirms the report and enters his final order accordingly. This, I believe, is a proper set standard to be followed by an administrative officer. I see no reason, provided by statute or otherwise, for involving three medical experts and their staff in deciding the nature and length of the claimant’s employment over a period of not less than two years, in addition to reporting upon the claimant’s physical condition.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4004543. Public record. Not legal advice.