The opinion
Calhoun, Judge,
dissenting:
Respectfully, I dissent. In my opinion, the Court in this case, sua sponte, has seized upon an alleged irregularity which has been labeled as “jurisdictional” in character and, on that basis, has decided a significant legal question not previously adverted to or raised by anybody at any stage of the case, with the unfortunate result that counsel for the parties have been denied an opportunity to be heard in relation to the question thus decided. I believe the Court should be eager even now to have that important question discussed by briefs and oral argument of the two able and experienced attorneys who represent the respective parties in this case.
The Court has held that the commissioner’s ruling of March 15, 1968, which merely made an award of 10% in addition to the previous 10% statutory award for loss of a finger, became final and that the commissioner, therefore, lost jurisdiction to change the finding thereby made. My view is that the commissioner, by his “corrected letter” dated March 19, 1968, did not vacate or change his ruling which had been made four days before. He had held that the claimant was entitled to an award of 10% in addition to the statutory award. That ruling was never changed by the commissioner. On the contrary, that ruling of the commissioner was consistently adhered to by him after it was made. The commissioner did not undertake to change the aggregate award of 20% made to the claimant, by increasing, decreasing or otherwise altering it.
The question presented to the Court upon the appeal from the ruling of the appeal board was the single legal question whether the commissioner was authorized, by the provisions *17 of Code, 1931, 23-4-6(i), as amended, to consider the latter award of 10% as having been partially paid by total temporary benefits previously paid to the claimant. For my purposes, I will refer to this as a question of “deductibility.”
The question of deductibility was not specifically or expressly decided, one way or the other, by the commissioner in his ruling of March 15, 1968. Perhaps it would have been superfluous for him to have done so, for the simple reason that the clear, unambiguous, mandatory language of the statute rendered unnecessary a decision of the question of deductibility. In relation to that question, the commissioner had no discretion. His duty under the statute was clear and mandatory. By general principles of law, in my opinion, the clear language of the statute became a part of the March 15,1968, ruling.
I believe that the Court was wholly unwarranted in its conclusion that the commissioner made an error of law in construing the statute in making additional award of 10% and that the commissioner’s alleged ruling on the question of deductibility therefore became final. A far more reasonable construction of the commissioner’s action is that, by a notification which he designated as a “corrected letter”, he was merely undertaking to avoid any possible misunderstanding of his ruling of March 15, 1968, which might have resulted from a mere inadvertence, oversight or “mistake”. It is reasonable to assume that the mere inadvertence, oversight or mistake was chargeable to some clerical assistant in the commissioner’s office.
This Court heretofore has held repeatedly that the right to workmen’s compensation benefits is based wholly on the pertinent statutes and in no sense based on the common law; that such statutes are sui generis and controlling; that the rights, remedies and procedures thereby provided are exclusive; that the commissioner is legally authorized to award and to pay benefits and that a claimant is legally authorized to demand payment of benefits only in such manner and in such amounts as are authorized by applicable statutes. I *18 believe, therefore, that, in relation to the question of what actions of the commissioner are “jurisdictional” and in relation to the question of what rulings of the commissioner are “final”, legal principles and court decisions relating to courts of law are, at most, merely persuasive on the basis of analogy.
Code, 1931, 23-5-1, as amended, provides, generally speaking, that, upon the making of any award, the commissioner shall give notice in writing to the employer and to the claimant, and that such action of the commissioner shall become final, unless the employer or claimant shall, within thirty days after receipt of such notice, object in writing to such finding. Within the thirty day period, the claimant protested the commissioner’s order and a subsequent hearing was had. It seems clear to me, therefore, that the commissioner’s ruling of March 15, supplemented by his “corrected letter” written four days later, did not become final. As a consequence of the protest made by the claimant, finality of the order was avoided. To hold otherwise, it seems to me, is to hold that the subsequent hearing was but an exercise in futility.
I would have decided the appeal on its merits, and, on that basis, I would reverse the ruling of the appeal board.