Hubbard v. SWCC and Pageton Coal Co.

MILLER, Chief Justice,

dissenting:

I must dissent from the majority’s view as I believe they have erroneously construed W.Va.Code, 23-4-10, as providing some type of a time limitation for filing a claim for dependent death benefits. This perhaps results from a misreading of Sizemore v. State Workmen’s Compensation Commissioner, 159 W.Va. 100 , 219 S.E.2d 912 (1975), which discussed at some length the various statutory changes to W.Va. Code, 23-4-10. Sizemore dealt with an amendment to this statute which had extended the time period from six to ten years. The effect of the amendment was that if an injured employee died during the ten-year period from a cause attributable to his industrial accident, his dependent had the right to file a claim for dependent benefits. At issue in Sizemore was whether the dependent could obtain the benefit of the new ten-year amendment. Sizemore did not discuss whether the claim for dependent benefits was timely filed under W.Va.Code, 23-4-15, which is the issue in this case.

The original purpose of the time period contained in W.Va.Code, 23-4-10, was to operate as a bar against a dependent’s right to even be entitled to a death benefit claim. In Long Flame Coal Co. v. State Compensation Commissioner, 111 W.Va. 409 , 163 S.E. 16 (1932), the Court dealt with an earlier counterpart of W.Va.Code, 23-4- *582 10, 1 which contained a one-year provision, and concluded in Syllabus Point 1:

“Properly construed, the Workmen’s Compensation Act of 1913 and the subsequent amendments thereto, deny payment of compensation to the dependents of a fatally injured employee who dies more than one year from the date of the injury as the proximate result of the injury received in the course of and resulting from his employment.”

Much the same point was made in Terry v. State Compensation Commissioner, 147 W.Va. 529, 533 , 129 S.E.2d 529, 532 (1963), where in speaking of W.Va.Code, 23-4-10, we said:

“It is clear that by that provision of that statute the Legislature created, as conditions precedent to the allowance of benefits to the widow or widower and children of the deceased employee, that the employee should have died from silicosis within six years from the date of the last injurious exposure to silicon dioxide dust in harmful quantities and that the commissioner has determined at the time of the original award that the employee was suffering from silicosis in the third stage. The satisfaction of each of these requirements is essential to the allowance of the claim of a dependent to the benefits provided by the statute.”

To construe W.Va.Code, 23-4-10, as providing some type of time period in which to file a death benefit claim is to ignore its history and the provisions of W.Va.Code, 23-4-15, which has historically been our statute covering the time period for filing claims. 2

As Flame Coal Co., supra, and Terry, supra, state, the time periods formerly contained in W.Va.Code, 23-4-10, were designed to be preconditions that must be met in order to have the right to file for dependent benefits. If the employee did not die within the time period contained in W.Va.Code, 23-4-10, his dependents did not have any right to file for dependent benefits. It is true that W.Va.Code, 23-4-10 (1978), does not contain any time period from the date of his injury in which the claimant must die in order to give rise to a right for his dependent to claim death benefits. 3 In other words a claimant may die at any time and if it is shown that the industrial injury caused his death and that his disability was continuous from the date of such injury until the date of death, his dependents can file for benefits. However, the time for filing for such benefits is still controlled by W.Va.Code, 23-4-15 (1973).

The answer to the present claim is that even if we ignore the claimant’s first filing some two months after her husband’s death in March of 1971 as creating a res judicata problem, the second filing in March of 1977 was well beyond the time period for filing a claim under W.Va.Code, 23-4-15 (1973). This statute provides that *583 “the application shall be filed as aforesaid by the dependent of such employee within two years from and after such employee’s death.” Consequently, I would hold that the Appeal Board was correct in concluding that the claim was time barred.

. The pertinent portion of W.Va.Code, 23-4-10 (1931), was:

"In case the personal injury causes death within the period of one year from the date of the original injury, and the disability is continuous from date of such injury until date of death, the benefits shall be in the amounts, and to the persons, as follows: ..."

. The pertinent portion of W.Va.Code, 23-4-15 (1973), which is presently in effect, is:

"To entitle any employee to compensation for occupational pneumoconiosis under the provisions hereof, the application therefor must be made on the form or forms pre-I scribed by the commissioner and filed in the office of the commissioner within three years from and after the last day of the last continuous period of sixty days or more during which the employee was exposed to the hazards of occupational pneumoconiosis or within three years from and after the employee’s occupational penumoconiosis was made known to him by a physician or which he should reasonably have known, whichever shall last occur, or, in the case of death, the application shall be filed as aforesaid by the dependent of such employee within two years from and after such employee's death." (Emphasis added)

.W.Va.Code, 23-4-10 (1978), provides, in part:

"In case a personal injury, other than occupational pneumoconiosis or other occupational disease, suffered by an employee in the course of and resulting from his employment, causes death, and disability is continuous from date of such injury until date of death, or if death results from occupational pneumo-coniosis or from any other occupational disease, the benefits shall be in the amounts and to the persons as follows: ...”