Fraga v. State Compensation Commissioner

The claimant here, Thomas Fraga, became an employee of the New River Company, as a coal loader, as early as the year 1923, and continued in that employment until he ceased work on May 12, 1941. From the 12th day of March, 1929, he worked continuously in what is known as the Whipple mine. He was examined by two physicians in June, 1941, and was then found to have silicosis in an advanced stage. On August 24, 1941, he filed his claim for compensation. On September 26, 1941, the Compensation Commissioner advised counsel that a hearing on non-medical questions should be held, and on this hearing testimony was taken on three separate occasions. On January 20, 1942, the Commissioner entered an order in which he found "that the claimant was not exposed to the inhalation of silicon dioxide dust in harmful quantities for a period of two years in the same employment in this State, as provided by Section 5, Article 6, Chapter 23 of the Code; it is therefore ordered that this claim be rejected in whole and closed * * *." Timely appeal was made to the Workmen's Compensation Appeal Board, and on April 11, 1942, the action of the Commissioner was affirmed. On May 18, 1942, we granted this appeal.

That claimant has silicosis is not questioned, nor is the fact that he was employed for more than two years, in the same employment, in this State, next preceding the date when he ceased work. The sole question presented is whether he was exposed to the inhalation of silicon dioxide dust in harmful quantities for a period of two years, and that question the Commissioner decided against claimant. The error alleged in the Commissioner's action, and that of the Appeal Board, is that prior to any final order of the Commissioner the case should have been referred to the medical board for investigation and report.

The position of the employer, The New River Company, is based upon the following language contained in Article 6, Section 5, Chapter 79, Acts of the Legislature, Reg. Sess., 1935, (1937 Michie Code, 23-6-5), which reads as follows:

"Provided, however, that compensation shall not be payable for the disease of silicosis, or death resulting therefrom, unless the employee has been exposed to the inhalation of silicon dioxide dust in harmful quantities over a period of not less than two years in the same employment in this state."

Its contention, as we understand it, is that this requirement is jurisdictional, and that the Commissioner had no right to take jurisdiction of the case until there was a clear showing that there has been such exposure for a period of two years. We think this contention is based upon some confusion as to the distinction between jurisdiction to hear a case, and the legal right to allow compensation after jurisdiction is assumed. InJohnston v. Hunter, 50 W. Va. 52, 40 S.E. 448, this Court held:

"There are numerous definitions of jurisdiction, the substance of all of which is the power to hear and determine a cause. * * *. That definition probably covers the full meaning of the term, for it may be elaborated in various ways and still retain the same meaning. Power or authority to hear and determine a cause implies the existence of a tribunal to exercise such power, and such tribunal cannot exist except by authority of law. There must be a court or tribunal with judicial power. This feature has not been overlooked in the many definitions given. 'Jurisdiction in courts is the power and authority to declare the law. The very word, in its origin, imports as much; it is derived from juris and dico — I speak by the law.' "

See also Sperry v. Sanders, Judge, 50 W. Va. 70, 40 S.E. 327; 14 Am. Jur. 363.

When claimant filed his claim, the Commissioner had jurisdiction to hear and determine the same. The fact that he was required, as a prerequisite to an award of compensation, to show that he had been exposed to the inhalation of silicon dioxide dust in harmful quantities for a period of two years, was not a matter which bore upon the jurisdiction of the Commissioner to hear and determine the matter, but only on the question whether there should have been an award of compensation. Whether claimant had been so exposed had to be determined by someone having jurisdiction to make such determination, and who but the Commissioner could do so?

Having jurisdiction to pass upon the question, the first duty of the Commissioner was to hear the case upon the non-medical questions. Section 11 of Article 6, authorizes the Commissioner to pass upon certain questions, but does not limit him to the particular points mentioned. Subsection (c) authorizes the commissioner to ascertain "The employments, previous and subsequent to the employment out of which the claim arose, the duration thereof, and the exposure therein to the hazard of silicon dioxide dust", and he is authorized to determine other matters. Sections 12, 13, and 14 of Article 6 provide for the creation of a medical board, to be appointed by the compensation commissioner, its procedure and report. Section 14 provides that the report of the medical board shall, among other things, contain findings and conclusions as to whether "the claimant or the deceased employee has contracted such disease, whether or not the exposure in the employment, with said employer, was sufficient to have caused silicosis or to have injuriously aggravated an existing silicosis". In the same section it is provided that the report of the medical board shall be filed with the compensation commissioner, and that if neither party, within ten days after mailing of a copy of said report, makes objection thereto, the findings of the board on any medical question shall be taken to be "plenary and conclusive evidence of the findings and conclusions therein stated." It is further provided, in effect, that if objection is made a hearing shall be had and it necessarily follows that the compensation commissioner, upon a consideration of all the evidence and the report of the medical board, must finally determine the right to compensation.

While the report of the medical board, if objected to, is not final as to the matters reported by it, and the final decision thereon must rest with the compensation commissioner, we are of the opinion that this is a case where reference to the medical board should have been made before there was a dismissal of the claimant's case. We do not mean to hold that there should be a reference by the commissioner to the medical board in all cases, but we are of the opinion that such procedure should be followed where there is a reasonable doubt on any medical question, and where an investigation thereof might tend to clarify any matter which might affect the final decision of the commissioner. We have here a case where, for approximately twenty years, claimant worked for one company as a coal loader, and in one of its mines for some twelve years, immediately preceding the date when he ceased work. He never did any other character of work to which his present state of health can be attributed. He has silicosis; and he must necessarily have contracted it while working for the employer in this case. True, he may have contracted the disease more than two years prior to the date he ceased work; but the statute apparently contemplates that even if he had contracted the disease more than two years before he ceased work, if during the last two years he was employed his condition was aggravated, he might still be entitled to compensation. Under the statute silicon dioxide dust must have existed in harmful quantities during the last two years the claimant worked, but it does not follow that even if an existing condition was aggravated, it was, as a matter of fact, due to silicon dust in harmful quantities. The aggravation might have been due to other causes such as the natural development of the disease. The situation developed by the record presents an unusual case, and the Commissioner, before dismissing the claim, should have resorted to every possible type of investigation to ascertain the true facts. The testimony taken at the hearing was confined largely, if not entirely, to conditions in the mine where claimant last worked. There was no medical testimony in the case, other than that establishing the existence of silicosis, and further medical testimony might and probably would have been useful. A diagnosis by specialists, trained in this line of work, might have cleared up many of the perplexities of the case. In our opinion, the statute contemplates reference to the medical board in cases where the exercise of technical learning is calculated to clear up doubts.

We are of the opinion that the action of the Commissioner and the Appeal Board in dismissing claimant's case without a reference thereof to the medical board was erroneous, and, therefore, its action is reversed, and the case remanded to the Compensation Commissioner, with instructions to refer the same to the medical board for investigation and report.

Reversed and remanded with directions.